Ronald D. Davis

The proposed intervener law firm sought leave to intervene in a motion for leave to appeal an order requiring the production of its privileged documents based on an implied joint retainer.

The moving party argued it had a direct interest in the subject matter and could be adversely affected by new grounds of appeal challenging its conduct.

The court dismissed the motion, finding that intervention on a leave to appeal motion should be rare and extraordinary, and that the proposed intervener's submissions largely duplicated those of the appellant.

The request to intervene in the appeal itself was adjourned pending the outcome of the leave motion.

The plaintiff requested clarification regarding the scope of an order compelling production of documents.

The court had previously found a joint retainer existed between the plaintiff and the defendant.

The court clarified that as between joint venture parties, communications with the jointly retained lawyer relating to the subject matter of the joint venture are not privileged, even if the communications involved matters where the parties' interests were adverse or concerned withdrawing from the joint venture.

The defendants (Trinity Development Group Inc., Trinity Albert LP, and John Ruddy) brought a motion to compel Capital Sports Management Inc. (CSMI) and Eugene Melnyk to produce documents related to the work of Gowling WLG LLP for RendezVous LeBreton Group (RLG) and the LeBreton Project.

Trinity argued that Gowlings was jointly retained by CSMI and Trinity in relation to the RLG joint venture, or that common interest privilege applied, or that CSMI had waived privilege.

CSMI contended that Gowlings acted solely for CSMI.

The court found that a joint retainer existed between Gowlings, CSMI, and Trinity for the RLG and LeBreton Project from July 23, 2015, to November 23, 2018, based on objective evidence including Gowlings' representation of RLG to third parties, shared instructions, and shared payment of fees.

The court also noted that CSMI's pleading of a fiduciary relationship with Trinity was inconsistent with its claim of privilege.

The motion to compel production was granted, requiring CSMI to produce the requested documents in unredacted form.

The appellant, Georgian Properties Corporation, appealed a summary judgment that dismissed its negligence action against respondent lawyers as statute-barred.

The negligence claim stemmed from the lawyers' work on condominium disclosure documents, mortgages, and a promissory note, which were later found insufficient or oppressive by a lower court.

The motion judge had found the claim discoverable by July 7, 2017, when a judge declined to strike a factum alleging inadequate disclosure.

The Court of Appeal found the motion judge erred in holding that loss occurred when the condominium corporation refused payments, clarifying that loss in solicitor negligence cases turns on the validity or enforceability of documents, not mere non-payment by third parties.

The Court concluded that Georgian Properties did not have sufficient material facts to infer liability against the lawyers until later, given the unusual procedural history and their reasonable expectation of success on the debt instruments.

The appeal was allowed, and the limitation defence dismissed.

The motion concerned the terms of a judicially supervised sale of a limited partnership or its underlying real estate asset, following the respondent's failure to complete a purchase of the applicant's interest as previously ordered by the court.

Key contentious issues included whether the sale should be limited to arm's-length purchasers, the composition and disclosure of a "Floor Amount" (minimum sale price), the applicant's right to a credit bid, the consequences if the Floor Amount was not met, and the appropriate prejudgment interest rate.

The court ruled that both parties could participate in the bidding, the Floor Amount should not include the respondent's capital contributions but should include the applicant's post-default development costs, the Floor Amount should not be disclosed to bidders, and prejudgment interest should be 12% due to the respondent's conduct.

The court also granted a temporary sealing order for the file and reasons until the sale was completed.

This is an appeal from an order dismissing a motion to stay an application in favour of arbitration.

The dispute concerns a cost-sharing agreement between condominium corporations regarding common expenses.

The motion judge found the essence of the claim was oppressive conduct, which he believed was not arbitrable.

The Court of Appeal reversed, holding that the core dispute was the interpretation and application of the reciprocal agreement, which contained a broad arbitration clause.

Citing recent Supreme Court of Canada jurisprudence, the Court emphasized that courts should not refuse to stay claims covered by a valid arbitration agreement and that oppression claims under the Condominium Act, 1998, are not exclusively for the Superior Court and can be arbitrated.

The appeal was allowed, and the application was stayed as it related to the issues between the two main condominium corporations.

Following a successful motion by the defendants to strike the plaintiff's statement of claim, the court determined the appropriate quantum of costs.

The defendants sought substantial indemnity costs of approximately $230,000, arguing that the plaintiff's unproven allegations of fraud justified an elevated award.

The plaintiff argued for partial indemnity costs of approximately $39,000.

The court agreed that unproven fraud allegations warrant higher costs, but found the defendants' claim excessive, particularly the $40,000 spent preparing brief costs submissions.

Costs were fixed at $200,000 all-inclusive.

The moving party sought to quash an appeal from a motion judge's order refusing to stay a court proceeding in favour of arbitration.

The moving party argued that section 7(6) of the Arbitration Act barred the appeal, relying on the Supreme Court of Canada's decision in Wellman to argue that the Huras line of cases should be overruled.

The Court of Appeal held that Wellman did not overrule Huras, affirmed that Huras was correctly decided, and found that because the motion judge had no statutory authority under section 7(5) to refuse to stay the arbitrable claims, his decision was not made under section 7.

Therefore, section 7(6) did not bar the appeal.

The motion to quash was dismissed.

The applicants sought to transfer an application from the Mining and Lands Tribunal to the Superior Court of Justice under s. 107 of the Mining Act, arguing the Tribunal lacked jurisdiction over patented mining claims and issues of private property and civil rights.

The respondent contended the Tribunal had exclusive or concurrent jurisdiction.

The court found that the Tribunal had at least concurrent jurisdiction, particularly regarding expenditures under s. 181 of the Mining Act, and that the issues fell squarely within the Tribunal's expertise.

The court dismissed the application to transfer the proceeding, emphasizing the Tribunal's specialized knowledge and efficient procedures for such matters.

The third-party solicitors McMillan LLP, Philip Thompson, and Marssa Giahi brought a motion for summary judgment to dismiss claims of negligence brought against them by defendants Crosslink Bridge Corp. and Andrew Penuvchev.

The defendants alleged the solicitors failed to warn them of environmental risks associated with purchasing contaminated railway lands.

The court found that the solicitors were not negligent, as their retainers were limited, the clients were sophisticated and had conducted their own due diligence, and the environmental disclosure documents were not provided to the solicitors.

Furthermore, the court found the third-party claims were barred by the expiration of the applicable limitation periods.

The motion for summary judgment was granted, and the claims against the third parties were dismissed.

An appeal of a wrongful dismissal action where the trial judge found just cause for termination based on three incidents of misconduct by a Senior Vice-President and Chief Financial Officer.

The incidents involved: (1) failure to disclose a land flip transaction where the controlling shareholder's group profited $6.5 million; (2) failure to disclose warrant redemption profits to independent directors; and (3) involvement in a tax scheme to mislead the Canada Revenue Agency.

The appellant argued the trial judge erred in applying the McKinley test, misinterpreted Advanced Realty and Hodgkinson, and failed to consider condonation.

The Court of Appeal upheld the trial judge's findings, confirming that fiduciaries owe a duty to disclose conflicts of interest and misappropriation of corporate opportunities.

The appellants, construction trades, appealed a Master's decision granting summary judgment dismissing their breach of trust actions against the respondents and refusing to lift bankruptcy stays.

The Divisional Court upheld the Master's finding that the appellants' breach of trust claims were discovered when they signed minutes of settlement in 2009, making their 2012 and 2013 actions statute-barred under the Limitations Act, 2002.

Consequently, there was no basis to lift the bankruptcy stays under s. 69.4 of the Bankruptcy and Insolvency Act.

The appeals were dismissed.

Developers holding registered title to a parkette appealed a declaration that a municipality was the legal and beneficial owner of the land.

The Court of Appeal upheld the application judge’s finding that a 1973 subdivision agreement requiring conveyance of the parkette to the municipality superseded an earlier 1972 agreement that included a potential re‑conveyance clause.

The court further held that the land’s administrative conversion to the Land Titles system did not extinguish the municipality’s equitable interest because the developers had actual notice of that interest.

The municipality’s claim was not statute‑barred under the Real Property Limitations Act because it had remained in continuous possession of the park since the 1970s.

In the alternative, the doctrine of dedication and acceptance independently supported municipal ownership after decades of public use.

The appellants were successful on appeal from a summary judgment decision.

The Court of Appeal addressed costs following the appeal.

Counsel for the respondent agreed that the appellants' claimed costs of $18,686.25, comprising $17,132.50 in fees on the partial indemnity scale and $1,553.75 in disbursements, were reasonable.

The court ordered that amount in costs, inclusive of HST, be paid by the respondent to the appellants.

Appellants purchased a franchise from the respondent and sought rescission under section 6(2) of the Arthur Wishart Act (Franchise Disclosure), 2000 on the basis that no proper disclosure document was provided.

The motion judge found the disclosure deficient but held that the appellants received sufficient information to make an informed decision and that deficiencies were not significant or misleading.

The Court of Appeal allowed the appeal, finding that material deficiencies in the disclosure document—specifically the absence of two required director signatures and failure to provide current audited financial statements—rendered the purported disclosure document invalid under the Act and Regulation.

The appellants were entitled to rescission under section 6(2).

The appellants appealed multiple orders and judgments made during a commercial trial that spanned 50 days but was never decided on the merits.

The trial judge had permitted the respondents to add new defendants and causes of action mid-trial, granted an ex parte Mareva injunction, issued 19 directions for massive document production, and found the appellants in contempt for failing to fully comply, ultimately striking their pleadings and granting partial default judgment.

The Court of Appeal allowed the appeal, finding that the cumulative effect of the trial judge's conduct—including interjections, adverse credibility findings mid-trial, and disproportionate production orders—created a reasonable apprehension of bias.

The judgments and orders were set aside, and a new trial was ordered before a different judge.

The applicants, OPSEU and Deborah Haring, brought an application under section 61(1) of the Occupational Health and Safety Act against the Ministry of the Solicitor General & Correctional Services and an Inspector.

The parties engaged in mediation and reached Minutes of Settlement addressing health and safety concerns arising from illicit drug use by inmates at the Maplehurst Complex.

The Board issued declarations and orders incorporating the settlement, which required the employer to develop operating procedures for suspected drug use, report quarterly on the effectiveness of unit searches, and consult with the Joint Occupational Health and Safety Committee.

The Board remained seized of any issues regarding the interpretation of the settlement.

The applicant union filed an application under section 96 of the Labour Relations Act to enforce a written settlement regarding the contracting out of offender transportation services.

The responding party employer argued that the settlement did not apply to community escort services at a newly built, privately operated correctional facility.

The Board found that the settlement's language regarding offender transportation services was unqualified and encompassed community escorts at all facilities, including the new one.

The Board declared that the employer violated the settlement and ordered it to amend its Request for Qualifications to retain community escort work for bargaining unit members.

Medical negligence appeal arising from a catastrophic birth injury after an emergency Caesarean section.

The appellants challenged the trial judge's findings on negligence and causation, numerous evidentiary rulings concerning expert reports, foundational facts, discovery corrections, and cross-examination, and alleged a reasonable apprehension of bias based largely on the trial judge's handling of extreme incivility by defence counsel during a 165-day trial.

The Court of Appeal held there was ample evidence supporting the findings that no negligence was proven and that the injury was caused by a sudden placental abruption.

It further held that virtually all evidentiary rulings were correct, any errors were inconsequential, and an informed observer would not apprehend bias.

The appeal was dismissed, but the trial judgment was varied so the dismissal was without costs.

The applicant union filed an unfair labour practice complaint and an occupational health and safety reprisal complaint against the responding party employer regarding the contracting out of offender transportation services.

The parties reached Minutes of Settlement wherein the employer agreed to cease and desist from proceeding with the contracting out process for two years and to continue having the services performed by bargaining unit members.

Consequently, the parties requested that the minutes be incorporated into a Board order and the applications be withdrawn.

The Board granted leave to withdraw the applications by consent.