Sara J. Erskine

A registered investment firm appealed a trial judgment finding that it had constructively dismissed a trader and defamed her by filing a Notice of Termination with IIROC stating she was dismissed for cause for unauthorized trading.

The trial judge ordered the firm to correct the notice.

On a motion for a stay of the mandatory order pending appeal, the court applied the three-part test from RJR-MacDonald and dismissed the motion.

The court found the appeal raised a serious question but that the appellant failed to establish irreparable harm, as the respondent suffered ongoing professional harm from the defamatory statements and the appeal would not be rendered moot by compliance with the order.

The appellant, Western Troy Capital Resources Inc., retained the respondent, Genivar Inc., an engineering consulting firm, to conduct a feasibility study for a mineral property at MacLeod Lake in Northern Quebec.

The trial judge found that Genivar breached its duty of care and made negligent misrepresentations, awarding damages of $1.25 million.

On appeal, Western Troy sought to increase the award to approximately $2.97 million or $2.15 million, arguing the trial judge failed to adequately explain his damages assessment.

The Court of Appeal upheld the trial judge's award, finding it was firmly grounded in evidence and that the trial judge properly considered speculative elements including the timing of when the resources estimate should have been completed, which expenses would have been incurred regardless, and the likely reaction of Western Troy's management to a timely report.

The respondents requested the removal of three personal respondents from a human rights application alleging discrimination in employment based on age, ethnic origin, and race.

The Tribunal applied the factors from Sigrist and Persaud, noting that the corporate respondent accepted vicarious liability for the personal respondents' actions, which occurred within the scope of their employment.

Finding no prejudice to the applicant, the Tribunal granted the request and removed the personal respondents from the application.

The plaintiffs, representing the estate of a deceased real estate developer, brought a motion for further documentary discovery from the defendants, representing the estate of his deceased business partner.

The dispute centered on the calculation of a 'net profit share' under a 2003 agreement.

The plaintiffs sought extensive financial records to challenge the defendants' auditor's valuation, which found a net loss.

Applying the principle of proportionality under the Rules of Civil Procedure, the Master ordered partial production of the requested documents, limiting the scope to the specific project in dispute rather than all related projects.

The plaintiff mining company retained the defendant engineering consultants to provide a feasibility study for a proposed mineral resource development.

After nearly four years and over $3 million in expenditures, the defendants reported the resource was insufficient to proceed.

The plaintiff sued for professional negligence, breach of contract, and negligent misrepresentation, arguing the defendants should have made this determination much sooner.

The court found the defendants breached their duty of care and made negligent misrepresentations by failing to properly manage the project, verify the resource model, and communicate concerns.

The court awarded the plaintiff $1,250,000 in damages for 'unnecessary waste' and dismissed the defendants' counterclaim for unpaid fees.

The defendant brought a motion for a commission to take evidence in Hong Kong for himself and five non-party witnesses.

The plaintiff opposed on grounds of jurisdiction, the test under Rule 36, and the open court principle.

The court granted the motion for the non-party witnesses, with the trial judge acting as commissioner, finding it necessary for a fair trial as these witnesses were not compellable in Ontario.

However, the motion for the defendant's own evidence to be taken on commission was dismissed, as he failed to demonstrate a sufficient reason for not attending in Toronto, given his status as a party who had attorned to the court's jurisdiction and the significant costs involved.

The court also found that the commission evidence process, with the trial judge acting as commissioner, did not offend the open court principle or jurisdictional boundaries.

The defendant sought leave to appeal an order dismissing his motion to set aside a worldwide Mareva injunction.

The injunction was originally granted ex parte in an action alleging the defendant perpetrated a massive fraud while CEO of Sino-Forest Corporation.

The Divisional Court denied leave on the issues of whether there was a prima facie case of fraud and risk of asset dissipation.

However, the court granted leave to appeal on three questions: whether an Ontario court can grant a Mareva injunction when the defendant has no assets in the jurisdiction, whether the undertaking as to damages provided by a non-party was sufficient, and whether that undertaking adequately protected the defendant's costs.

Following a successful summary judgment motion dismissing the plaintiff's action, the Eckhaus Defendants sought substantial indemnity costs.

The plaintiff had made serious, unfounded allegations of breach of fiduciary duty and sexual harassment against Dr. Eckhaus.

The court found these allegations to be outrageous and reckless, justifying an award of substantial indemnity costs.

After reviewing the parties' bills of costs and considering proportionality, complexity, and importance, the court fixed the costs payable by the plaintiff to the Eckhaus Defendants at $45,645.60, inclusive of HST and disbursements.

The moving parties sought leave to appeal an order that allowed the respondent to amend its statement of defence, added a third party as a necessary party, and dissolved an injunction preventing the respondent from disposing of disputed lands.

The Divisional Court granted leave to appeal specifically on the issue of lifting the injunction, finding good reason to doubt the correctness of that part of the order because the moving party would suffer irreparable harm if the respondent sold the land before the court determined ownership rights.

Leave to appeal the joinder of the third party was denied.

The appellants appealed from a motion judge's dismissal of their motion for summary judgment, which sought to dismiss the respondent's claims as statute-barred.

The motion judge had found that the respondent lacked standing to bring a fraudulent conveyance claim prior to the appointment of a receiver, and that the appellants had concealed facts necessary to support the claims.

The Court of Appeal dismissed the appeal, holding that the motion judge's findings on discoverability and concealment were supported by the evidence and entitled to deference.

The plaintiff, a registered nurse who underwent massive weight loss, sued her plastic surgeon, his professional corporation, a hospital, and a nurse after the nurse asked an allegedly inappropriate question during surgery while the plaintiff was awake.

The surgeon and his corporation moved for summary judgment to dismiss the action against them.

The court applied the Hryniak test and reviewed the plaintiff's own expert report, which established that the surgeon met the standard of care for preoperative, technical, and postoperative care.

The court found that the surgeon also met the subjective standard of care for intraoperative management and patient advocacy, as he did not perceive the question as derogatory or know the plaintiff felt insulted at the time.

Finding no genuine issue requiring a trial, the court granted the motion and dismissed the action against the surgeon and his corporation.

The defendant, Romandale Farms Limited, brought a motion for leave to amend its statement of defence, add third parties, consolidate actions, and dissolve a 2007 interlocutory injunction in a complex commercial real estate dispute.

The plaintiff opposed the amendments, arguing prejudice, res judicata, and withdrawal of an admission.

The court granted leave to amend, finding no non-compensable prejudice and that the proposed defences were tenable and responsive to the plaintiff's amended claims regarding a partial settlement agreement.

The court also joined one third party for limited purposes to avoid multiplicity of proceedings and dissolved the 2007 injunction, as the plaintiff no longer claimed a proprietary interest in the land.

The moving defendants sought summary judgment dismissing a fraudulent conveyance and knowing assistance action as statute-barred under the Limitations Act, 2002.

The action arose from efforts to enforce a substantial divorce judgment where assets were allegedly transferred through corporate structures to defeat execution.

The court held that the material facts underlying the claims were not discoverable until an equitable receiver, appointed in aid of execution, obtained corporate records in 2010 that had previously been withheld.

The action commenced in 2012 was therefore within the limitation period.

The court also ruled that the defendant named as estate trustee of a deceased individual was not in fact the estate trustee but appointed her as litigation administrator of the estate under Rule 9.03(2).

Following settlement of a contempt motion relating to alleged breach of a prior court order governing shared use of a laneway between neighbouring commercial properties, the court determined the appropriate costs award.

The moving parties argued they were the successful party because the settlement resulted in variations to the earlier order consistent with their requested relief.

The responding parties contended that no contempt finding was made and that costs should either be in the cause or not awarded.

The court held the moving parties were successful because the relief obtained reflected the purpose of the motion and addressed the alleged non‑compliance with the prior order.

However, the court found the bill of costs excessive and fixed costs at $11,000 all‑inclusive, payable forthwith.

In a securities class action arising from the collapse of a forestry company, the plaintiffs sought approximately $2.6 million in costs following certification and leave motions brought under the Class Proceedings Act, 1992 and the Securities Act.

Several defendants argued that costs should not be awarded because the plaintiffs had already recovered legal expenses through settlements with other defendants and because the claimed costs were excessive.

The court held that the plaintiffs were largely successful but not entirely successful due to an unresolved assignment issue affecting certain class members.

The court also ruled that disbursements could not be recovered again because they had already been indemnified through settlements.

Exercising its discretion, the court ordered a hybrid costs award: part payable immediately and part payable in the cause.

On a summary judgment motion in an employment compensation dispute, the court interpreted an unsigned compensation amendment governing commissions and bonuses for an executive recruiter.

Applying commercial contract interpretation principles and, alternatively, contra proferentem, the court held that a 5% admin fee requirement was not a precondition to bonus eligibility.

After crediting a further payment received on an outstanding client receivable, the court found the moving party’s 2013 net billings exceeded the $1 million threshold, triggering a 3% bonus.

The court also held that equitable set-off was unavailable to justify withholding commissions based on a counterclaim for damages arising from the moving party’s resignation and alleged solicitation of a client.

Summary judgment was granted on the compensation claim, subject to recalculation.

Following the dismissal of the appellant's appeal, the successful respondents sought costs.

One respondent failed to bring a costs outline to the hearing as required by Rule 57.01(6) of the Rules of Civil Procedure, and subsequently claimed an amount three times higher than initially estimated.

The court penalized this non-compliance by awarding costs limited to the amount the appellant had estimated in its own costs outline.

A consultant sued a corporation for unpaid fees under a month‑to‑month consulting services agreement providing monthly compensation plus expenses.

The defendant argued the contract was frustrated and unenforceable because the consultant could not legally work in Canada without immigration authorization and had failed to secure investment funding.

The court rejected these defences, finding the primary purpose of the contract was to obtain American venture‑capital investment and that the consultant had substantially performed her services from the United States with the defendant’s knowledge and encouragement.

The defendant had waived any requirement that work be performed in Canada and had continued to praise the consultant’s work while failing to pay agreed fees.

Judgment was granted for the outstanding consulting fees with pre‑judgment interest.

The appellant appealed an order dismissing its motion for leave to amend its Statement of Defence and to commence a cross-claim and counterclaim.

The proposed amendments alleged that a settlement agreement between the plaintiff and other defendants constituted a breach of a prior agreement.

The Divisional Court upheld the Master's decision, finding that the Master correctly concluded the proposed amendments were not tenable in law based on a review of the settlement agreement.

Commercial neighbours disputed use of a shared laneway subject to a registered right of way.

On a contempt motion brought within an earlier application proceeding, the motion judge dismissed contempt but imposed detailed permanent injunctive restrictions governing future use of the laneway.

The Court of Appeal held that the judge materially changed an interlocutory order into a permanent injunction without adequate explanation, applied the wrong legal test, made factual findings not available on the conflicting motion record, and lacked jurisdiction to grant permanent injunctive relief absent an extant underlying proceeding.

The appeal was allowed, the injunctive provisions were set aside, appeal costs were awarded to the appellants, and motion costs were ordered in the cause.