Robert J. Smith

The bank sued the defendants for default on a commercial loan, a home equity line of credit, and various credit cards.

The defendants counterclaimed for $8.8 million, alleging the bank's failure to fully advance a $350,000 small business loan caused the failure of their restaurant businesses.

The court found that while the bank breached the loan agreement, the breach was not the effective cause of the business failures.

The business failures were caused by a prior fire, massive existing debts, and a failed expansion restaurant that rendered a $500,000 internal loan uncollectible.

The court dismissed the counterclaim, preferred the bank's expert valuation, found no deceit or bad faith by the bank, and granted judgment to the bank for the outstanding loan amounts.

The plaintiff was struck from behind by an unidentified vehicle in a Starbucks drive-through.

Unaware she had suffered a concussion, she did not obtain the other driver's information before he left.

She reported the accident to her broker the next day but did not notify police within 24 hours or provide written notice to her insurer within 30 days.

In a special case trial, the court held the plaintiff could not have ascertained the driver's identity with reasonable due diligence due to her injuries.

The court found no irreparable prejudice to the insurer from the delayed reporting and granted relief from forfeiture.

The court also found sufficient corroborating evidence of the unidentified vehicle's involvement.

This was a costs decision following a jury verdict in an insurance coverage dispute arising from a commercial fire loss.

The plaintiff recovered the balance of an endorsement after the insurer denied liability despite an alleged promise to pay if a code-compliant structure was rebuilt.

The court held that full indemnity costs were not justified on the misconduct record, but gave elevated weight to indemnity, the insurer's serious misconduct, and a reasonable withdrawn offer to settle under Rule 49.13.

Costs were fixed at $200,000 plus HST and $50,000 in disbursements, and prejudgment interest was awarded at an averaged 2.15% rate over the ten-year period.

The appellant appealed a Small Claims Court decision awarding $35,000 in defamation damages to each respondent after the appellant referred to them as 'House Negroes' in a blog post.

The appellant argued the trial judge should have recused himself for bias, erred in rejecting defences of fair comment and truth, and awarded excessive damages.

The Divisional Court dismissed the appeal, finding no reasonable apprehension of bias, upholding the trial judge's findings that the term was derogatory and not protected by fair comment, and concluding the damages were within a reasonable range given the respondents' public standing and the seriousness of the defamation.

The self-represented applicant, a former director of the condominium corporation, applied for the appointment of an administrator or inspector, and sought declarations of oppression and breach of the directors' standard of care.

The applicant alleged that a shared facilities agreement with a developer's subsidiary was unfair and that the board mismanaged expenses and reserve fund calculations.

The court dismissed the application, finding no evidence that the board was unable to manage the condominium's affairs or that its conduct was oppressive.

The court emphasized that appointing an administrator is a remedy of last resort.

The plaintiffs in a certified class action brought a motion to amend their statement of claim and certification order to add a claim for punitive damages based on evidence discovered during the discovery process.

The claim alleged that the defendant knew or ought to have known of possible PFAS contamination of class members' drinking water by March 2013 but failed to disclose the contamination until December 2015.

The court found the proposed amendment was not plain and obvious to fail, as the failure to warn neighbouring residents of possible PFAS contamination of their drinking water could be found to offend the court's sense of decency.

The motion to amend was granted, Carleton University was removed as a defendant on consent, and the defendant's cross-motion was denied.

The applicant sought leave to commence a derivative action on behalf of the company against the respondent, who allegedly took corporate funds for personal use without authorization.

The parties were the sole directors and equal voting shareholders, resulting in corporate gridlock.

The court found the applicant met the requirements under section 239 of the Canadian Business Corporations Act, including providing proper notice, acting in good faith, and showing the action was in the company's interest.

Leave was granted, and the company was ordered to pay the applicant's reasonable legal fees, with the ultimate amount to be determined at trial.

The franchisor moved for interlocutory injunctive relief to compel a former franchisee to resume operating a pharmacy under its banner, alternatively to deliver up possession of the premises, or to refrain from operating any non-franchised business there, together with relief respecting private label products and intellectual property.

The court held that, in substance, the requested relief was mandatory because it would require the responding parties to unwind an existing arrangement with a new franchisor and take positive steps to resume the prior franchise relationship.

Applying the mandatory injunction standard under the RJR-MacDonald framework as refined by Canadian Broadcasting Corp., the court found no strong prima facie case because the rescission issues under the Arthur Wishart Act raised non-frivolous questions for trial, including whether changes to a loyalty points program were material changes.

The court also found no irreparable harm because lost profits and market effects were measurable from extensive historical sales data, and held that the balance of convenience favoured the responding parties.

The motion was dismissed.

The tenant appealed a Landlord and Tenant Board decision terminating her tenancy based on an agreement to terminate.

The tenant argued the Board erred in finding her initial notice of termination valid, in finding the parties agreed to a June 30, 2024 termination date, and in failing to consider refusing the eviction under section 83 of the Residential Tenancies Act.

The Divisional Court dismissed the appeal, finding that the Board's conclusion on the termination agreement was a finding of fact supported by evidence, from which there is no right of appeal.

The Court also held that the Board properly considered section 83 when it decided to postpone rather than refuse the eviction.

The accused was convicted of three terrorism-related offences: participating in the activities of the Atom Waffen Division (AWD) terrorist group by producing propaganda and recruitment videos; knowingly facilitating a terrorist activity through the production and publication of such materials; and communicating statements that wilfully promoted hatred against Jewish people and other identifiable groups.

The court imposed a total sentence of ten years imprisonment (reduced to nine years and nine months after pre-sentence custody credit), with the accused eligible for parole under the usual criteria rather than being required to serve half the sentence.

The court found that the Kienapple principle did not apply to the multiple convictions and considered the offender's youth, remorse, renunciation of extremist beliefs, participation in rehabilitation programming, and strict bail compliance as mitigating factors.

This is a costs decision following a trial in which the plaintiff, a self-represented Ph.D. student, brought claims against his academic supervisor, the University of Ottawa, and a former friend.

The plaintiff alleged that his supervisor breached his responsibilities and conspired with the former friend to frustrate his academic progress and obtain free labour.

The plaintiff was entirely unsuccessful on all allegations.

The court found that the plaintiff's conduct in adding his former friend as a defendant after the friend refused to provide false evidence constituted unreasonable and improper conduct that lengthened the proceedings.

The defendants sought costs on a substantial indemnity basis but the court awarded costs on an enhanced partial indemnity basis to account for the plaintiff's misconduct.

The Crown sought to qualify Matthew Kriner as an expert witness to provide opinion evidence regarding the impact of the accused's postings in the ideologically motivated violent extremism milieu and the significance of images created for far-right terrorist groups.

A voir dire was held during the sentencing hearing.

The court found that the proposed expert evidence met all four Mohan threshold requirements and that the probative value of the evidence exceeded any prejudicial effect.

The expert was qualified to testify.

The plaintiff, Ahmed Abada, brought an action against his former PhD supervisor, the University of Ottawa, and a former friend, alleging damages for loss of earnings, general and punitive damages, and various torts arising from his removal from the PhD program.

The court found that the core of the dispute was academic in nature and that Abada had already availed himself of the university's internal appeal processes, which resolved the issues of bursary payment and academic progress.

The court dismissed all claims, finding no negligence, breach of contract, or tortious conduct by the defendants, and held that Abada was primarily responsible for his failure to complete the program due to personal and legal issues.

The court dismissed a proposed class action for delay under section 29.1 of the Class Proceedings Act, 1992.

The plaintiff failed to advance the proceeding for over six years after being ordered to deliver amended materials.

The court found that the plaintiff had not taken any steps to advance the case, failed to comply with court-ordered timetables, and did not provide evidence to justify an adjournment.

The dismissal does not prejudice putative class members, as they may commence a new proceeding on the same grounds.

This decision concerns the allocation of costs following a trial in which the plaintiffs, Faulkner Real Estate Ltd. and Judy Faulkner, sought damages for alleged exposure to mould in office space leased from the defendants, Sakto Corporation and Waterford Property Group Ltd. The plaintiffs initially claimed over $6,000,000, later reducing the claim to approximately $3,291,000, but were awarded only $4,000 as a partial rent abatement.

The court found the defendants to be the overwhelmingly successful parties and, after considering the offers to settle and other relevant factors, ordered the plaintiffs to pay the defendants' costs on a partial indemnity basis.

The plaintiffs moved to amend the Certification Order to permit a claim for punitive damages in a class action concerning PFAS contamination allegedly caused by the National Research Council of Canada.

The court reviewed new evidence suggesting the NRC knew or ought to have known about the contamination earlier than previously established.

The court held that the plaintiffs must first bring a motion to amend their pleadings before the Certification Order could be amended, adjourning the motion to add punitive damages as a common issue until that time.

The accused, Patrick Gordon MacDonald, was charged with terrorism offences for participating in or contributing to the production of three recruitment videos for the Atomwaffen Division (AWD), a white supremacist terrorist group.

The court found that MacDonald participated in the production and online posting of these videos and other images promoting AWD’s violent neo-Nazi ideology, with the intent to recruit others and facilitate terrorist activity.

The court accepted expert evidence that AWD was a terrorist group in 2018-2019, and found that MacDonald’s actions met the requirements for participation, facilitation, and wilful promotion of hatred under the Criminal Code.

MacDonald was found guilty on all counts.

The plaintiffs, Judy Faulkner and her real estate brokerage, brought an action against their landlord and property manager claiming approximately $2.2 million in damages allegedly caused by exposure to toxic mould in their leased office space.

The plaintiffs asserted that water leaks led to mould growth, causing Ms. Faulkner to suffer from cognitive symptoms and leading to the departure of key real estate agents.

The court accepted the evidence of the defendants' occupational medicine expert, finding that the plaintiffs failed to prove that the office air contained harmful mould or that Ms. Faulkner's symptoms were caused by mould exposure.

Consequently, the court dismissed the claims for negligence, negligent misrepresentation, and breach of lease, awarding only $4,000 for a temporary rent reduction due to the inconvenience of a remediation containment area.

The Plaintiff, 2449442 Ontario Inc., was awarded $82,752 at trial in a construction lien case, while the Defendant, Cambridge Drywall Services LTD. (CDS), succeeded on its counterclaim for $30,000, resulting in a net recovery of $52,752 for the Plaintiff.

CDS successfully defended against 87% of the Plaintiff's total claim.

This decision addresses the parties' claims for costs.

The court considered factors under Rule 57, including divided success and CDS's offer to settle, which, though not compliant with Rule 49.10(2) due to timing, exceeded the Plaintiff's net recovery.

The court also addressed the applicability of simplified procedure rules under the Construction Act.

Ultimately, the court ordered CDS to pay the Plaintiff $100,000 in costs plus HST and disbursements, reflecting a reduction from the Plaintiff's claimed costs due to the divided success and CDS's reasonable, albeit non-compliant, offer.

The plaintiff, Jayson Hopkins, sued his former lawyer, Patrick Murphy, and law firm, Beament Green, for professional negligence, alleging that Murphy negligently advised him to settle his motor vehicle accident lawsuit in 2008 for an improvidently low amount.

Hopkins sought approximately $3 million in damages, arguing that the $127,900 settlement for general damages and loss of income was inadequate.

The defendants denied negligence, asserting that the settlement was reasonable and that they met the standard of a prudent solicitor.

The court addressed whether Murphy was negligent or breached his contract and whether the "loss of chance" doctrine should apply.

The court found that the plaintiff failed to prove negligence or breach of contract, primarily due to the lack of expert evidence on the standard of care and the failure to conduct a "trial within a trial" or demonstrate its impossibility.

Consequently, the plaintiff's claim was dismissed.