S. Chapnik

Following previously released reasons for judgment, the court considered written submissions from counsel regarding damages, pre-judgment interest, and costs.

The court determined that the parties had not been ad idem regarding the originally referenced damage amount and corrected the damages to a lower amount consistent with the evidence and an exhibit accepted as accurate.

The court also fixed pre-judgment interest from the fall of 2006 and reassessed the plaintiff’s costs in light of a prior offer to settle and the factors under the Rules of Civil Procedure.

The earlier judgment was amended to reflect the corrected damages, interest, and a consolidated costs award.

A long‑term restaurant server brought an action for wrongful dismissal after being terminated following a late arrival for work.

The employer alleged just cause based on chronic lateness, alcoholism, and discourteous behaviour, but did not appear at trial.

The court held the employer failed to prove just cause and that dismissal for a single instance of lateness was disproportionate under the contextual approach established in McKinley v. BC Tel.

Applying the Bardal factors, the court considered the employee’s 29 years of service at the restaurant, age, and limited alternative employment prospects, despite only 11 months of employment with the purchasing corporation.

Reasonable notice was fixed at 15 months, and damages were calculated based on wages and tips forming part of remuneration.

The Attorney General commenced a civil forfeiture application under ss. 3 and 8 of the Civil Remedies Act, 2001 seeking forfeiture of $104,877 USD seized from an individual at Toronto Pearson International Airport.

The respondent opposed the application and brought a motion under s. 5(1) of the Act requesting payment of legal and expert expenses from the seized funds.

The court held that the respondent’s second motion for legal expenses was not barred by res judicata and that the expert accounting report constituted a reasonable legal expense, but the payment was capped by the statutory 15% limit under O. Reg. 91/02.

On the merits of the forfeiture application, the court found on a balance of probabilities that the funds were either proceeds or an instrument of unlawful activity, relying on circumstantial evidence including the packaging, concealment, inconsistent explanations, and lack of credible lawful source.

The respondent failed to establish status as a legitimate or responsible owner and the interests of justice exception did not apply.

A vendor brought an application arising from a real estate transaction involving multiple holdbacks secured by lawyers’ undertakings.

The dispute concerned entitlement to a construction lien holdback, a building permit holdback, and a construction work holdback following closing of the property sale.

The court held that the purchasers could not refuse release of the construction lien holdback where no liens were registered and a solicitor had given a clear undertaking.

The vendor was also granted equitable relief from forfeiture in respect of the building permit holdback, as the permit closure had been obtained and the delay in notification caused no prejudice.

The remaining construction work holdback was ordered paid into court pending resolution of related civil claims.

The defendants brought a motion seeking an order requiring the plaintiff to return funds withdrawn from a joint bank account and a declaration that the plaintiff was in contempt of a prior court order governing the use of powers of attorney.

The plaintiff had withdrawn approximately $45,000 from a joint account held with her mother and reinvested the funds in a GIC in her own name, asserting she acted in her personal capacity to safeguard her mother’s assets.

The court held that the earlier order governing powers of attorney did not clearly or unequivocally prohibit the plaintiff’s actions.

Applying the established three-part test for civil contempt, the court found that the defendants failed to prove beyond a reasonable doubt that the plaintiff breached a clear order or acted wilfully in contempt.

The motion seeking the return of funds and a contempt finding was dismissed, and the funds were ordered to remain in the current account pending further court order.

A non-party lawyer appealed a costs order requiring him to personally pay $3,000 to opposing counsel following an order made by a Master.

After leave to appeal was granted, the parties engaged in settlement negotiations but disagreed on the wording of the resulting order.

The moving party sought confirmation that the settlement included both allowing the appeal and setting aside the impugned paragraph of the Master’s costs order.

The court held that setting aside the impugned portion necessarily meant the appeal was allowed and found the parties were ad idem in their settlement.

The motion to confirm the settlement was granted and the settlement enforced.

The applicant sought declaratory relief that it was exempt from a parkland levy imposed as a condition of obtaining a building permit for redevelopment of a restaurant on municipal lands.

The municipality argued the application improperly circumvented the statutory appeal mechanism under s. 25(1) of the Building Code Act, 1992, which provides a 20‑day appeal period from decisions of a chief building official.

The court held that the proper procedure was a statutory appeal, not an application for declaratory relief, and that the applicant had failed to pursue the appeal within the prescribed timeframe.

The court declined to convert the application into a statutory appeal or extend the appeal deadline, finding the delay unreasonable and prejudicial to the municipality.

The application was dismissed and costs were awarded to the respondent.

A motion was brought in a civil proceeding seeking consolidation with an ongoing family law proceeding involving the breakdown of a long marriage and disputes over ownership of corporate and real property assets.

The civil application, brought through a corporation, sought eviction of occupants from a condominium and recovery of unpaid rent, while the family proceeding raised issues of divorce, equalization, and competing claims to ownership of the corporation and related assets.

The court considered Rule 6.01 of the Rules of Civil Procedure and the principle under s. 138 of the Courts of Justice Act that multiplicity of proceedings should be avoided.

Finding overlapping factual issues concerning ownership of corporate interests and property arising from the marriage, the court held that all disputes should be determined together in the family proceeding.

Consolidation was ordered to avoid abuse of process and to promote efficiency and reduced litigation costs.

The moving defendant sought to set aside a default judgment, noting in default, and substantial indemnity costs order granted after he failed to attend discoveries and the motion for judgment.

The court applied the Rule 19.08 test considering promptness, explanation for default, and the existence of an arguable defence.

The defendant learned of the judgment only upon service of an examination in aid of execution and moved promptly thereafter, with delay largely attributable to difficulty obtaining the court file.

The court found a plausible explanation for the default and an arguable defence concerning alleged unpaid construction invoices and the contractual requirement for written authorization of extras.

The court also held that the plaintiff’s failure to disclose a prior $60,000 settlement with a co‑defendant—representing most of the total claim—was a significant non‑disclosure that independently justified setting aside the judgment.

The defendants brought a motion for summary judgment seeking dismissal of an action alleging professional negligence, breach of contract, and misrepresentation arising from accounting advice regarding a corporate “butterfly transaction.” The defendants argued that a broadly worded mutual release executed during settlement of a prior fee dispute barred the action under the doctrine of res judicata.

The court held that the release applied only to claims existing at the time of settlement and did not bar claims based on negligence that the plaintiffs discovered years later.

The court further held that the action raised multiple triable issues, including when the accountant became aware of the alleged error and whether the plaintiffs incurred significant tax exposure as a result of the advice.

Summary judgment was therefore inappropriate and the action was permitted to proceed to trial.

Following a motion in a wrongful dismissal action involving a multinational employer, the court had previously stayed the Ontario proceeding on the basis of forum non conveniens while finding that Ontario had jurisdiction simpliciter.

The defendants sought substantial costs after obtaining the stay.

The court considered the factors under s.131 of the Courts of Justice Act and rule 57.01 of the Rules of Civil Procedure, including the complexity and novelty of jurisdictional issues involving cross‑border employment disputes.

Because the plaintiff succeeded on the jurisdiction issue while the defendants succeeded on forum non conveniens, the result of the motion was divided.

Exercising its discretion, the court concluded that fairness required no costs award.

The defendants brought a motion under Rules 30 and 31 of the Rules of Civil Procedure seeking a further and better affidavit of documents and additional production from the plaintiff in a complex civil action involving allegations of wrongful conduct relating to an investment bond valued in the millions of dollars.

The plaintiff opposed the motion and sought dismissal or a stay pending the defendants’ compliance with prior production and costs orders made by a master.

The court held that the motion raised issues more appropriately determined by a master, particularly in light of the earlier case management timetable and the fact that the master had contemplated the motion being brought before that forum.

The motion was dismissed without prejudice to allow the defendants to bring it before a master on an expedited basis.

Following a trial in which the plaintiff obtained judgment exceeding $543,000, the court issued supplementary reasons on costs after learning that the plaintiff had previously delivered a formal offer to settle under Rule 49.01(1) of the Rules of Civil Procedure.

The judgment obtained was more favourable than the terms of the offer.

Applying Rule 49 cost consequences, the court held that the plaintiff was entitled to substantial indemnity costs from the date of the offer to the date of judgment.

The adjustment increased the plaintiff’s cost entitlement.

The total costs award was amended accordingly.

The plaintiffs brought an urgent motion for interim injunctive relief seeking possession of restaurant premises allegedly purchased through a share purchase agreement.

The defendants argued the motion was barred by res judicata and raised a defence of non est factum, asserting the principal defendant did not understand the English-language transaction documents.

The court found the motion was not barred because a prior dismissal was without prejudice and the plaintiffs had since commenced an action and assembled extensive documentary and examination evidence supporting the transaction.

Applying the test for interlocutory injunctions from RJR‑MacDonald Inc. v. Canada (Attorney General), the court held that there was a serious issue to be tried, that the plaintiffs would suffer irreparable harm without relief, and that the balance of convenience favoured preserving the business assets and premises pending trial.

Interim injunctive relief was granted compelling delivery of possession and restraining competing business activities.

The plaintiff purchaser brought a motion for summary judgment seeking return of deposits and due diligence costs arising from a failed real estate transaction for development land.

The purchaser alleged the vendor breached an environmental provision in the agreement of purchase and sale relating to hazardous substances and noise contamination guidelines.

The vendor argued the provision constituted a warranty rather than a condition and that the purchaser’s refusal to close constituted default resulting in forfeiture of the deposits.

The court held that several genuine issues requiring a trial remained, including interpretation of the contractual provision, the meaning of municipal correspondence concerning application of environmental noise guidelines, proof of damages, and the availability of relief from forfeiture.

Summary judgment was therefore inappropriate.

The defendants brought a motion for summary judgment dismissing a long-standing solicitor’s negligence action commenced in 1995.

The parties had previously agreed to binding arbitration to determine whether the plaintiff would have succeeded in the underlying 1985 action and the quantum of damages.

The arbitrator concluded the plaintiff had no reasonable probability of success and suffered no compensable damages, and the plaintiff’s subsequent appeal of the arbitration award was dismissed for delay.

Applying the doctrine of res judicata and the summary judgment framework, the court held that the arbitration award and dismissal of the appeal were final and binding and that no genuine issue requiring a trial remained.

The action was dismissed and substantial costs were awarded to the defendants.

The defendants brought a motion under Rules 21.01, 25.06 and 25.11 of the Rules of Civil Procedure to strike paragraphs of the plaintiffs’ Statement of Claim, or alternatively strike the claim entirely, alleging it disclosed no reasonable cause of action and was frivolous or vexatious.

The action arose from a long‑standing neighbour dispute involving repeated complaints to police and municipal authorities, and alleged malicious prosecution related to withdrawn or dismissed charges.

Applying the “plain and obvious” test from Supreme Court jurisprudence governing motions to strike, the court held that the pleadings disclosed arguable causes of action including harassment, nuisance, intentional infliction of mental suffering, and malicious prosecution.

The pleaded facts provided sufficient particulars and context to permit the defendants to respond.

The motion to strike was therefore dismissed and the plaintiffs were awarded costs.

A bank mistakenly wired duplicate funds to a recipient’s account and sought summary judgment to recover the second payment.

The respondent argued he merely acted as a trustee for another party and had already disbursed the funds without knowledge of the bank’s error, relying on the defence of change of position in unjust enrichment.

The court held that recovery of mistaken payments is permitted where the recipient is enriched without juristic reason and rejected the change of position defence because the respondent knew or ought to have known of the error.

The evidence showed rapid withdrawals, refusal to authorize repayment, and inability to explain expenditures.

The court concluded there was no genuine issue requiring a trial and granted summary judgment for repayment of the mistaken funds.

The defendants sought an order in the nature of an appeal from a construction lien master’s report confirming liability arising from renovation work performed on the defendants’ home.

The master found that although the corporate plaintiff was not the direct contracting party, recovery was available on the basis of unjust enrichment given the services and materials supplied and the essential connection between the corporate entity and the individual who performed the work.

The defendants argued the master exceeded jurisdiction under the Construction Lien Act and erred in awarding equitable relief and in recognizing a subcontractor’s lien entitlement.

The court held that the statutory scheme provides broad authority to resolve all matters arising from the lien action and permits personal judgment even where a lien fails.

Finding no palpable or overriding error, the court confirmed the master’s report.

The moving parties, estate trustees for the deceased's estate, brought a motion to remove the responding party's daughter as her litigation guardian and attorney for property.

The responding party, who was mentally incapable, had appointed her two children as attorneys, but one withdrew due to a conflict of interest.

The court found that the remaining attorney had a conflict of interest, resided outside the jurisdiction, and had previously depleted the incapable person's funds by selling her home and taking the proceeds.

The court removed the daughter as litigation guardian and appointed the Public Guardian and Trustee to act as litigation guardian and guardian of property.