Raymond G. Colautti

The defendants brought a motion to strike the plaintiffs' statement of claim, which sought damages arising from a child protection agency's investigation into allegations that a foster parent sexually abused a foster child.

The court struck the claims in negligence, breach of fiduciary duty, breach of statutory duty, and defamation, finding that a child protection agency does not owe a duty of care to foster parents, as its paramount duty is to the child.

The claims against the individual employees were also struck due to statutory immunity.

However, the court granted the plaintiffs leave to amend their claim to plead the tort of misfeasance in public office.

The plaintiff, a lawyer, brought a defamation action against the defendant, a former law partner and opposing counsel, over an article published in an insurance adjusters' magazine.

The article accused the plaintiff of making false representations during a pretrial conference, based on a lower court decision that was later overturned on appeal.

The plaintiff moved for summary judgment, and the defendant moved to dismiss the action under the anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act.

The court granted the defendant's motion and dismissed the action, finding that while the claim had substantial merit, the plaintiff failed to establish that the defendant had no valid defence, as the defence of qualified privilege was legally tenable and required a trial to determine if it was defeated by malice.

Following the dismissal of the plaintiff's $30,326.95 claim for construction materials on summary judgment, the successful defendants sought costs of over $47,000.

The plaintiff had also incurred costs exceeding the claim amount.

The court criticized the disproportionate legal fees expended by both parties for a modest liquidated claim.

Applying the principle of reasonableness and proportionality, the court awarded the defendants fixed costs of $21,766.56.

The plaintiffs brought an action for damages arising from the flooding of their greenhouse, alleging the defendants negligently altered their adjacent property and caused the flood.

The parties had previously entered into Minutes of Settlement regarding the dispute, which the defendants subsequently breached by failing to construct a berm.

The court held that the plaintiffs could not rescind the settlement to resurrect their tort claim, as they had contracted it away.

Furthermore, the court found the plaintiffs failed to prove on a balance of probabilities that the defendants caused the flooding.

However, the court granted a declaration that the defendants breached the Minutes of Settlement, entitling the plaintiffs to damages for that breach.

The plaintiffs, a husband and wife, brought an action for wrongful dismissal against the defendants, a restaurant corporation and its majority financial backer.

The wife also claimed a remedy for shareholder oppression under s. 248 of the OBCA.

The court found that the wife was not expressly or constructively dismissed, but rather had resigned from her employment.

The husband's wrongful dismissal claim was also dismissed as he had received adequate payment in lieu of notice.

On the oppression claim, the court found that the defendants' failure to provide annual audited financial statements and the majority backer's post-litigation correspondence violated the wife's reasonable expectations as a shareholder.

The court ordered the purchase of the wife's shares, valuing them at $1.00 as of the date of the original oppressive conduct in 2010, given the corporation's significant debt at that time.

Claims for unjust enrichment and fraudulent misrepresentation were dismissed, as was the defendants' counterclaim for defamation.

The plaintiff landlords sued the City of Windsor and its fire investigators for negligent investigation and malicious prosecution after being charged with operating non-compliant boarding, lodging, or rooming houses under the Fire Code.

The plaintiffs argued the investigators lacked reasonable grounds and were motivated by a desire to curb student housing.

The court dismissed the action, finding that the investigator had reasonable grounds to believe the properties were rooming houses based on the statutory definitions, and that he acted reasonably by seeking advice before laying charges.

The court also found no evidence of malice or oblique motive.

Following a decision in favour of the defendant, the court determined the quantum and scale of costs.

The defendant sought substantial indemnity costs, arguing the plaintiffs' actions were improper.

The court rejected this characterization, finding the plaintiffs acted within the boundaries of the law.

Costs were awarded to the defendant on a partial indemnity scale, fixed at $11,850 inclusive of HST, as submitted by the plaintiffs.

Following a successful motion by the defendants to stay the action pending the outcome of a hospital board hearing, both parties sought costs.

The defendants sought $18,358.12, while the plaintiffs sought substantial indemnity costs based on prior offers to settle.

The court found the defendants' bill of costs to be excessive given the relative simplicity of the issues and fixed costs at $7,500 payable to the defendants.

The plaintiff purchased a landlocked commercial property with the intention of developing it.

The property abutted a Home Depot, which had a site plan control agreement with the City requiring it to negotiate a reciprocal access agreement with the abutting property owner if required.

The plaintiff sued the City and Home Depot, alleging they frustrated its development by delaying or denying access, claiming negligence, nuisance, breach of contract, and proprietary estoppel.

The defendants moved for summary judgment.

The court granted the motions and dismissed the action, finding that many of the plaintiff's claims were not properly pleaded, the City owed no duty of care to preserve access, no negligent misrepresentations were made, and Home Depot acted in good faith in negotiating the access agreement, which was inherently complex and conditional.

The plaintiff mortgagors failed to maintain property insurance as required by their mortgage.

The defendant mortgagees obtained their own insurance policy to protect their interest, with the plaintiffs reimbursing the premiums.

After a fire destroyed the property, the insurer paid the mortgagees the policy limits and claimed a subrogated right to enforce the mortgage against the plaintiffs.

The plaintiffs brought a motion for summary judgment seeking a declaration that the insurer had no subrogated rights and an order discharging the mortgage to the extent of the insurance payout.

The court dismissed the motion, finding that the insurance policy was obtained solely for the benefit of the mortgagees and explicitly provided for subrogation rights against the mortgagors.

The defendants brought a motion to strike the plaintiffs' statement of claim, arguing it disclosed no reasonable cause of action, was an abuse of process, and was statute-barred.

The plaintiffs had previously commenced an identical action regarding a terminated bingo hall lease on First Nation reserve lands, which was dismissed for delay.

The court agreed with the defendants, finding the second action was an abuse of process attempting to re-litigate the dismissed claims.

The court also held the lease was void ab initio under the Indian Act and the claims were subject to the two-year limitation period.

The motion to strike was granted without leave to amend.

The Belleville police defendants brought a motion for summary judgment to dismiss the plaintiffs' action against them for negligent investigation, false imprisonment, wrongful arrest, and Charter breaches.

The plaintiffs had been arrested for possession of property obtained by crime after picking up merchandise from Lowe's that was ordered using fraudulent credit cards.

The court granted the motion, finding that the claims for false arrest and Charter breaches were statute-barred under the Limitations Act, 2002.

Furthermore, the court found no genuine issue requiring a trial regarding the negligent investigation claim, as the investigating officer had reasonable and probable grounds to lay the charges and met the standard of care of a reasonable police officer.

The defendants, a treating psychologist and a children's aid society, brought motions under Rule 21 to strike the plaintiffs' statement of claim.

The plaintiffs' action arose from a child protection investigation and criminal charges based on allegations of abuse made by a child previously adopted by the plaintiffs.

The court struck the claim against the psychologist without leave to amend, finding she owed no duty of care to the parents of her patient and was statutorily obligated to report suspected abuse.

The court also struck the adult plaintiffs' claims in negligence and various intentional torts against the children's aid society defendants, finding no duty of care was owed to the parents during a child protection investigation.

Leave to amend was granted for claims of misfeasance in public office and Charter damages.

Following a prior summary judgment decision finding that a settlement had been reached between the parties, the defendants brought a motion to adduce fresh evidence concerning the date on which two settlement cheques were negotiated.

The moving parties relied on Rules 52.10 and 59.06 of the Rules of Civil Procedure and argued that bank statements showing the cheques were cashed earlier than assumed would materially affect the findings regarding their intention to be bound by the settlement.

The court held that the proposed evidence could have been obtained and presented with reasonable diligence during the original summary judgment motion and therefore did not satisfy the requirements for admitting fresh evidence under the Palmer test.

The court further concluded that, even if admitted, the evidence would not have changed the outcome because the defendants never demanded repayment of the funds after the plaintiff proposed revised payment terms.

The motion to adduce fresh evidence was dismissed.

Following a successful summary judgment motion concerning a debt dispute and alleged settlement, the plaintiff sought substantial costs for the motion and the broader action.

The court held that the defendants had unnecessarily complicated what was a relatively straightforward settlement issue through procedural steps and a counterclaim.

However, the court emphasized proportionality and the principle that the losing party should not reasonably expect to pay for two senior counsel on a relatively simple motion.

Applying Rule 57.01 of the Rules of Civil Procedure and the principles in Boucher v. Public Accountants for the Province of Ontario, the court reduced the claimed costs and fixed partial indemnity costs for the motion.

The court deferred determination of the remaining action costs pending resolution of issues relating to the counterclaim.

Police defendants brought a motion to strike numerous paragraphs of an affidavit filed by plaintiffs’ counsel in response to a pending summary judgment motion in a civil action alleging negligent investigation, malicious prosecution, false imprisonment, and Charter breaches.

The impugned affidavit summarized discovery evidence, relied on hearsay and discovery transcripts of multiple parties, and included argument, opinion, and allegedly inflammatory allegations.

The court reviewed the admissibility of affidavit evidence under the Rules of Civil Procedure, including rules governing hearsay, discovery evidence on motions, and improper argument in affidavits.

The court permitted reliance on certain discovery transcripts already filed by the moving parties and allowed narrative evidence derived from other parties’ discovery where proportionality and fairness warranted.

However, numerous passages containing argument, opinion, speculation, or inflammatory allegations were struck.

The plaintiff brought a motion for summary judgment seeking to enforce an alleged settlement agreement arising from a dispute over unpaid invoices for agricultural produce.

The defendants argued that no binding settlement existed because the parties never reached agreement on a fundamental term, namely the schedule of repayment.

The court held that the parties had reached a binding settlement on the principal compromise amount through email exchanges and subsequent conduct, including the issuance and negotiation of cheques consistent with the proposed settlement.

Silence in response to a counter‑proposal combined with partial performance supported an inference that the repayment terms were accepted.

Summary judgment was granted enforcing the settlement against certain corporate defendants but not against the individual defendants.

At a status hearing under Rule 48.14(13), the plaintiffs sought to restore their breach of contract action to the trial list, while the defendants sought its dismissal for delay.

The action had been commenced in 2008 and was subject to multiple delays, missed timetables, and changes of counsel.

The court found that the plaintiffs failed to provide an acceptable explanation for the nearly seven-year delay, particularly the period following an unsuccessful mediation in 2013.

As the plaintiffs failed to satisfy their onus to show cause why the action should not be dismissed, the court dismissed the action with costs.

On a reference concerning the admissibility of proposed expert evidence, the court considered whether an accountant’s report met the criteria for expert evidence under the framework established in R. v. Mohan.

The issue focused on the necessity requirement and whether the expert’s opinion would assist the trier of fact through independent analysis.

The court found the report was based largely on the applicant’s instructions and assumptions rather than the expert’s own analysis and conclusions.

As a result, the evidence lacked the independence required of expert opinion evidence and functioned merely as advocacy for the applicant’s position.

The proposed expert evidence was therefore excluded.

The plaintiffs sued various provincial and municipal officials for negligent investigation, malfeasance in public office, and Charter breaches after the plaintiff Hilary Payne was charged with arson by negligence following a fire at a student rental property.

The defendants brought motions for summary judgment to dismiss the claims.

The court granted summary judgment dismissing the claims against one defendant (an engineer-in-training) and the Charter claims under ss. 8, 11(d), and 11(g).

However, the court dismissed the balance of the summary judgment motions, finding that the novel issues of duty of care, standard of care, causation, and statutory immunity required a full trial to resolve conflicting evidence and assess credibility.