Roger J. Horst

The defendants in a proposed opioid class action moved to dismiss the proceeding for delay under s. 29.1 of the Class Proceedings Act, 1992.

In response, the plaintiff brought a cross-motion for a nunc pro tunc timetable order and commenced parallel proceedings in Manitoba.

The parties reached a settlement wherein the competing motions were dismissed without costs, the Manitoba proceedings would be discontinued, and the Ontario action would be deemed commenced on October 2, 2020, making it subject to the amended certification test under the Smarter and Stronger Justice Act, 2020.

The court approved the settlement and issued the consent orders.

The appellants appealed two awards from a sole arbitrator in a commercial arbitration regarding a failed real estate project.

The first award granted partial summary judgment dismissing claims related to loan advances as time-barred.

The second award increased the amount of security for costs.

The Superior Court held that the standard of review for commercial arbitrations remains reasonableness under Sattva, as Vavilov did not overrule it in this context.

The court found the arbitrator's decisions on both the limitation period and the security for costs were reasonable and correct, and dismissed the appeals.

This endorsement addresses the costs of two successful motions brought by the plaintiffs, Barry Picov and Picov Farms Ltd. The first motion sought to amend their Statement of Claim to substitute Robar Residence Corporation as plaintiff, and the second sought to set aside an ex parte costs order against them in favour of Genserve Systems Inc. The court awarded partial indemnity costs to the plaintiffs for both aspects of their motion, finding that while the plaintiffs' counsel bore some responsibility for the initial error and evidential record, the defendants' opposition was not entirely justified, particularly Genserve's stance on setting aside the ex parte order.

Total costs of $19,689 were awarded to the plaintiffs, apportioned among the defendants.

The defendants moved for summary judgment to dismiss a nuisance claim arising from construction noise outside permitted hours, relying on an exclusion clause in the agreement of purchase and sale (APS).

The court interpreted the APS and found that the exclusion clause did not apply to construction noise from an adjacent Phase II development occurring outside permitted hours.

The court also dismissed the separate motion to dismiss the claim against Tridel, finding insufficient evidence to establish Tridel's limited involvement and noting the elastic nature of the tort of nuisance.

The defendants' motion for summary judgment was dismissed.

The defendants brought a motion to enforce an alleged settlement agreement.

The court dismissed the motion, finding no valid and enforceable settlement due to a lack of clarity in the offer, insufficient authority of the individual purporting to accept on behalf of corporate plaintiffs, and improper direct communication by the defendants' counsel with a represented party, violating professional conduct rules.

The third party, Her Majesty the Queen in Right of Ontario, represented by the Ministry of Natural Resources and Forestry (MNR), brought a motion for summary judgment to dismiss a third-party claim by the defendant, 2065943 Ontario Ltd. The defendant's claim alleged negligence against the MNR related to signage and property maintenance in a provincial park, following an incident where the plaintiff was injured.

The MNR argued that the claim was one of occupiers' liability, requiring notice within ten days under the Proceedings Against the Crown Act (PACA), which the defendant failed to provide.

The court found that the defendant's claim was indeed an occupiers' liability claim, subject to the strict 10-day notice period, and that the defendant's arguments regarding discoverability, negligence vs. occupiers' liability, and lack of prejudice to the Crown were unpersuasive.

The motion for summary judgment was granted, and the third-party claim against the MNR was dismissed.

This endorsement addresses the determination of costs following the successful dismissal of the plaintiffs' action against the defendants Stewart and Indicom on appeal.

The Court of Appeal had referred the costs below back to the motion judge.

The court applied principles for assessing costs, including the custom that costs follow the event and the requirement for fairness and reasonableness.

It was determined that costs should be awarded as if the defendants had been wholly successful at the summary judgment stage.

The court adjusted the hourly rate for the defendants' counsel and reduced claimed hours for settlement discussions and observing other parties' motions, ultimately awarding partial indemnity costs for both the summary judgment motion and the action to the defendants.

The appellants, a developer, appealed from a summary judgment that dismissed claims for conspiracy and negligent and fraudulent misrepresentation against appraisers, and ordered a mini-trial on claims of negligence, inducing breach of contract, and intentional interference with economic relations.

The Court of Appeal upheld the dismissal of the conspiracy and misrepresentation claims, finding no reasonable reliance and no evidence of conspiracy.

The court also set aside the mini-trial order and dismissed the remaining claims, finding they had no possibility of success due to lack of reliance, absence of unlawful conduct, and expiration of the limitation period.

An appeal from a Superior Court order directing the transfer of ownership of a motor home from a debtor to a purchaser.

The appellant, appearing self-represented, sought an adjournment to obtain counsel and filed an application to introduce fresh evidence regarding a property purchase from 1979 and requesting transfer of the matter to a Metis Clan Mother.

The Court of Appeal dismissed both the adjournment request and the application for fresh evidence, finding the proposed evidence would not have affected the result.

The appeal was dismissed with costs awarded to the respondents.

The defendants Robert Stewart and Indicom Appraisal Associates Ltd. brought a motion for summary judgment to dismiss the plaintiffs' action.

The plaintiffs, Correct Building Corporation and Correct Group Inc., claimed damages under various causes of action, including civil conspiracy, negligent or fraudulent misrepresentation, negligence, unlawful interference with economic relations, and inducing breach of contract, stemming from an appraisal of the Allandale Station lands prepared for the City of Barrie.

The court dismissed the claims for civil conspiracy and negligent or fraudulent misrepresentation, finding no genuine issue for trial.

However, the court found genuine issues requiring a mini-trial for the remaining claims (negligence, inducing breach of contract, wrongful interference with economic relations) concerning the limitation period and the enforceability of the Preliminary Agreement, particularly regarding the role of an agent and the impact of environmental/archaeological issues on property value.

The appellant appealed the dismissal of his motion to add additional defendants and seek damages of $76 million, punitive damages of $24 million, and an order striking down the Indian Act.

The motion was dismissed because it was brought without leave after the action had been set down for trial, in breach of Rule 48.04(1) of the Rules of Civil Procedure.

The appellant also objected to the composition of the appellate panel on grounds of reasonable apprehension of bias, which the court rejected.

The appeal was dismissed with costs awarded to the respondents.

A citizen reported criminal activity by neighbours' sons to police, claiming she was promised confidentiality.

The police officer did not disclose that the interview was being videotaped.

The neighbours' sons were arrested, and the citizen's identity and videotaped interview were included in Crown disclosure.

The citizen was subsequently harassed and threatened by the neighbours, leading to post-traumatic stress disorder and relocation.

The trial judge found the police liable for breach of confidence and awarded general damages of $345,000, plus Family Law Act damages.

The appellants appealed, arguing the trial judge erred in finding a promise of confidentiality, that necessary elements for the claim were not established, and that damages were excessive.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings and damage award.

This costs endorsement followed a motion where success was divided.

The court had previously allowed in part and dismissed in part a motion for judgment brought by the defendant/plaintiff by counterclaim.

Specifically, the motion to dismiss the "main action" was allowed, but the counterclaim was dismissed against TCB Realty Ltd., and the motion for judgment was dismissed against the individual defendants by counterclaim.

Given this divided success, where each side had substantive claims entirely dismissed against them and achieved vindication on material parts of their positions, the court determined it was not appropriate to award costs to either side.

The moving party defendants, an expert witness and his appraisal company, sought summary judgment to dismiss a professional negligence claim brought by their former clients, the plaintiffs.

The plaintiffs alleged the expert breached his duties during a prior trial, resulting in an unfavourable valuation of their shares.

The court granted summary judgment dismissing the negligence claim, holding that the absolute immunity afforded to witnesses extends to a party's own expert witness.

However, the court declined to grant summary judgment on the moving parties' counterclaim for unpaid invoices, finding that the plaintiffs' allegations of breach of contract and negligence raised triable issues that could serve as a defence to the claim for fees.

The appellants were passengers injured when another passenger, who was experiencing delusions, grabbed the steering wheel of a Greyhound bus, causing it to crash.

The appellants sued the bus company, the driver, and police officers who had interacted with the passenger before he boarded.

The trial judge dismissed the action, finding no breach of the standard of care by any of the respondents.

On appeal, the appellants argued the trial judge erred by excluding expert evidence on police crisis management and bus safety.

The Court of Appeal dismissed the appeal, holding that the trial judge properly exercised his gatekeeper function in excluding the expert evidence because it was not necessary to assist the trier of fact in determining the applicable standards of care.

The appellant challenged an order requiring him to execute transfers of certificates of possession over reserve parcels to satisfy a judgment debt owed to the respondent band.

The appeal turned on whether the Superior Court had jurisdiction to make that order and whether certificates of possession were immune from seizure under s. 29 of the Indian Act.

The court held that a certificate of possession merely evidences an Indian's right of possession, while underlying title to reserve land remains with the Crown.

Reading ss. 29 and 89(1) harmoniously and in light of the statutory scheme and legislative history, the court held that the possessory interest is real or personal property of an Indian that may be seized or executed upon in favour of an Indian or a band.

The appeal was dismissed and appeal costs were added to the debt.

Investors brought negligence claims against their former financial advisor and related entities arising from failed hedge fund investments.

The defendants moved for summary judgment arguing the claims were statute‑barred under the Limitations Act, 2002.

The court held that the plaintiffs discovered or ought to have discovered their claim when they learned between 2005 and 2007 that the investment had failed and that it had been recommended by their advisor as low risk.

Knowledge of the precise cause of the fund’s collapse or later revelations about the advisor’s insurance status did not postpone discoverability.

The court also rejected allegations of fraudulent concealment.

The negligence claims relating to the investment were dismissed as statute‑barred.

The plaintiff, a party under a disability due to a severe head injury sustained in a jail assault, settled his negligence action against the Crown for $750,000.

The plaintiff and his litigation guardian opposed structuring the settlement funds.

On a motion for settlement approval under Rule 7.08, the court ordered the funds to be structured to protect the plaintiff's financial interests and preserve his ODSP benefits.

The court also approved the plaintiff's solicitors' request for legal fees of approximately $250,000, finding the fees reasonable given the complexity of the case, the risk assumed by the solicitors over nine years, and the favourable result achieved.

The plaintiffs brought a motion for approval of a $10 million class action settlement and class counsel fees regarding an alleged investment leveraging scheme.

While the court found the settlement quantum and proposed counsel fees to be fair and reasonable, it refused to approve the settlement at this time due to a lack of procedural fairness.

Specifically, the settlement administrator failed to implement a transparent challenge process for class members to dispute their individual compensation amounts, as required by the settlement agreement.

The motion was adjourned to allow the parties to implement the required challenge process.

The court considered a motion seeking approval of a proposed $10 million class action settlement relating to investment advice involving leveraged borrowing to purchase mutual or segregated funds.

Although the court found the overall settlement amount to be fair and reasonable in light of litigation risks, potential appeals, and the complexity of individualized damages, it determined that the settlement administration process lacked procedural fairness.

Specifically, the settlement agreement required a “challenge” mechanism allowing class members to contest the calculation of their compensation, but the administrator had not implemented a meaningful challenge process.

Several objectors raised concerns about how their losses were calculated and were given no adequate opportunity to dispute the administrator’s determinations.

The court therefore declined to approve the settlement at that stage and adjourned the motion to allow implementation of a proper challenge process.