Sarit Esther Batner

The appellants, renewable energy companies, appealed the dismissal of their application for a determination of their rights under Feed-in Tariff (FIT) Contracts with the Independent Electricity System Operator (IESO).

The IESO terminated the contracts after the appellants failed to achieve commercial operation of their solar facilities by the Milestone Date for Commercial Operation (MCOD).

The Court of Appeal upheld the application judge's finding that the contracts made time of the essence and permitted termination for failure to meet the MCOD.

The Court also agreed that the IESO was not estopped from terminating the contracts, as there was no shared assumption or promise that the IESO would waive its termination rights.

During a legal strike, graduate student teaching assistants engaged in picketing and protests.

Following the strike, the university disciplined them under the Student Code of Conduct.

The students sought judicial review, arguing that under the Back to Class Act and the Labour Relations Act, a labour arbitrator had exclusive jurisdiction over discipline related to strike activities.

The Divisional Court agreed and quashed the university tribunal's decision.

The Court of Appeal dismissed the university's appeal, confirming that the specific, strike-ending legislation mandated that any dispute concerning discipline for activities during the strike be determined through grievance arbitration.

The plaintiff underwent open-heart surgery to remove a mass that was pre-operatively diagnosed as a likely myxoma (tumor) but was post-operatively confirmed to be a thrombus (blood clot).

The plaintiff brought a medical negligence action against the involved cardiologists, cardiac surgeon, and cardiac anaesthetist, alleging they breached the standard of care by failing to diagnose the mass as a clot and treat it medically, and by failing to obtain informed consent.

The Superior Court of Justice dismissed the action, finding that the physicians met the standard of care in their differential diagnosis and treatment plan, as the mass had unusual features suggestive of a tumor and required surgical removal regardless.

The court also found that causation was not established and that informed consent was properly obtained.

This decision addresses the costs arising from a decade-long, four-action litigation where Romandale Farms Limited was the successful party.

Romandale sought substantial indemnity costs against Fram and Kerbel (and their associated entities).

The court found that Fram and Kerbel's conduct throughout the litigation was "reprehensible and deserving of sanction" including pursuing meritless claims for tactical reasons, making disingenuous arguments, and principals giving false evidence.

The court awarded Romandale substantial indemnity costs of $2,708,651.57, inclusive of fees and disbursements, payable jointly and severally by Fram and Kerbel, finding the amount fair and reasonable given the complexity, stakes, and the losing parties' conduct.

The plaintiffs in a medical malpractice action requested an urgent case management conference to seek an extension of time to deliver their expert reports on income loss and liability.

The defendants opposed the extension, arguing the plaintiffs should be barred from delivering the reports due to their breach of the existing timetable.

The court granted the extension, finding that the timetable could be varied to allow the plaintiffs more time without reducing the time afforded to the defendants to deliver their responding reports, thereby preserving the scheduled trial date.

Multiple actions arising from a complex land development dispute involving co-ownership agreements for two farm properties in Markham.

Fram alleged Romandale breached the co-ownership agreements by entering into a conditional agreement to sell its interest to Kerbel.

Kerbel later entered into a settlement agreement with Fram to delay the closing of its purchase from Romandale for decades.

The court found that Romandale did not breach the co-ownership agreements.

Furthermore, the court held that Kerbel repudiated its agreement with Romandale by entering into the settlement agreement with Fram, which fundamentally altered the timeline for closing.

All claims by Fram and Kerbel against Romandale were dismissed, and Romandale was granted a declaration that its agreement with Kerbel was at an end.

The applicants, graduate students and teaching assistants at York University, sought judicial review of a University Tribunal decision disciplining them for misconduct during a legal strike.

The Tribunal had assumed jurisdiction under the Student Code.

The Divisional Court quashed the Tribunal's decision, holding that the essential character of the dispute was labour-related and fell within the exclusive jurisdiction of a labour arbitrator under the Labour Relations Act and the Back to Class Act.

The Court also found exceptional circumstances to hear the judicial review despite the applicants not exhausting internal appeals, and noted the Tribunal's process was procedurally unfair.

The defendant, John Hancock, brought a motion to dismiss or stay the action, arguing that a forum selection clause in the parties' agreement required the plaintiff, Infinite Media, to bring its claim in Boston, Massachusetts.

Infinite Media contended the clause mandated claims be brought in Ontario, specifically in the responding party's city or county within Ontario.

The court interpreted the clause holistically, considering the agreement's wording and factual matrix, and found that all claims were intended to be brought in Ontario, in the responding party's city or county.

The motion to dismiss or stay was dismissed.

The appellant, a general surgeon, appealed a trial judgment finding him liable for medical negligence in the treatment of an 11-year-old patient who presented with abdominal pain.

The surgeon discharged the patient without ordering imaging or hospital admission, providing discharge instructions that the patient should only return if her condition worsened.

The patient's appendix subsequently ruptured, causing significant bowel damage.

The trial judge found the surgeon breached the standard of care in both his assessment and discharge instructions, and that causation was established.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's findings on standard of care or causation.

The court also addressed the inordinate delay in releasing reasons but concluded it did not impede fair adjudication.

A lawyer brought an application for an interim injunction to restrain a hospital from withdrawing life support from her client without instructions to do so and without notice to the client's family.

The application was granted ex parte but subsequently set aside by the reviewing judge after the client was declared brain dead.

The lawyer then appealed both the substantive decision and the costs award against her personally.

The Court of Appeal dismissed both appeals, finding that the lawyer had no authority to bring the application, acted without instructions, and seriously interfered with the administration of justice by misusing the court process during an emotionally sensitive family decision regarding end-of-life care.

During a medical malpractice trial concerning an ulnar nerve injury sustained during orthopedic surgery, the defendants objected to the plaintiffs' expert orthopedic surgeon testifying on causation and standard of care issues not expressly stated in his written reports.

The court ruled that under Rule 53.03, an expert cannot testify on matters that open up a new field not mentioned in their report, nor can the court be left to infer opinions.

The expert was precluded from offering opinions on causation and the standard of care for the initial consultation, as these were not clearly articulated in his reports.

The applicant's lawyer brought an emergency ex parte application to enjoin a hospital from withdrawing life support from a patient.

The court initially granted the order but rescinded it the next day after the hospital and treating physician provided evidence that the patient was brain dead and the family had consented to withdrawing support.

The hospital and physician sought costs personally against the applicant's lawyer.

The court found the lawyer brought the application without instructions, submitted misleading material, and caused costs to be incurred unnecessarily.

The court ordered the lawyer to personally pay $15,000 in costs to the respondents.

Following the dismissal of the plaintiff's refusals motion and the granting of the defendants' motion to discharge certificates of pending litigation, the court determined the costs of the proceedings.

The court awarded the plaintiff $4,095 for a successful adjournment request, and awarded the defendants $2,000 for the refusals motion.

For the main motion to discharge the CPLs, the court awarded the defendants substantial indemnity costs of $75,000 due to the plaintiff's failure to make full and fair disclosure on its initial ex parte motion and its failure to accept a reasonable Rule 49 offer to settle.

The net costs payable by the plaintiff to the defendants were fixed at $72,905.

The court heard two motions: the defendants' motion to discharge a Certificate of Pending Litigation (CPL) and the plaintiff's cross-motion to compel answers on cross-examination.

The plaintiff's motion was dismissed as overly broad.

The defendants' motion to discharge the CPL was granted.

The court found that the plaintiff failed to make full and frank disclosure on its ex parte CPL application and that there was no triable issue regarding the plaintiff's claim to an interest in the land.

The Letter of Intent and subsequent amending agreements were deemed unenforceable as they lacked essential terms, constituting "agreements to agree."

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 appellant was successful in an oppression action against the respondents.

The respondents had served an offer to settle nine calendar days before trial, which technically amounted to fewer than seven days under the Rules of Civil Procedure.

The trial judge treated the offer as a valid Rule 49 offer and awarded costs accordingly.

On appeal, the Court of Appeal held that the 'no near miss' policy applies to the timing requirement under rule 49.03, meaning the offer was not a valid Rule 49 offer.

However, the Court upheld the costs award, finding that the trial judge was entitled to take the offer into account under his residual discretion pursuant to rule 49.13.

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.

Following a partial appeal reducing damages and prejudgment interest in an oppression action, the court reconsidered the quantum of trial costs and the cost consequences of a pre-trial offer to settle.

The court held that, once the amended judgment and pre-offer costs were compared to the offer, the plaintiff had obtained a result less favourable than the offer.

Rule 49.10 was therefore engaged.

However, because of the defendants' conduct previously found to justify elevated costs, the court ordered substantial indemnity costs in favour of the plaintiff to the date of the offer, partial indemnity costs to the defendants thereafter, and netted the awards.

The defendants also received costs of the rehearing.

The respondent, a silent investor in a private company, brought an oppression action against the managing directors for awarding themselves excessive compensation and failing to provide financial disclosure.

The trial judge found the directors liable for oppression and awarded damages and substantial indemnity costs.

On appeal, the Court of Appeal upheld the findings of oppression and the scale of costs, but found the trial judge erred by not calculating the excess compensation on a net basis over the entire 22-year period, which would have credited the directors for under-compensation in the company's early years.

The Court reduced the damages award from $250,000 to $187,453.51 and remitted the quantum of costs to the trial judge for reconsideration in light of a Rule 49 offer to settle.

The successful plaintiffs brought a motion seeking payment of approximately $1 million held by the Accountant of the Superior Court of Justice to partially satisfy their judgment.

The defendant opposed the motion, arguing that his law firm was entitled to a priority charge on the funds for $825,000 in unpaid legal fees pursuant to s. 34(1) of the Solicitor's Act.

The Court of Appeal dismissed the defendant's arguments, finding that the funds were not preserved through the instrumentality of the law firm and that the equities overwhelmingly favoured the plaintiffs.

The motion was allowed and the funds were ordered released to the plaintiffs.