Civil Litigation - Defendant - SCJ

The decision concerns a claim by Monique Miller and Michel Desjardins against Jacques Lajoie, a home inspector, and his company, for negligence and negligent misrepresentation in the conduct of a pre-purchase home inspection.

The court found that Mr. Lajoie failed to meet the standard of care required of a reasonable and prudent home inspector, particularly in failing to report in writing on significant, visible deficiencies in the foundation, roof, and windows.

The plaintiffs reasonably relied on the inspection report in deciding to purchase the property and suffered damages as a result.

The court awarded damages for the cost of repairs to the foundation, roof, and a portion of the windows and doors.

The plaintiffs, Yusuf Ebadi and Hasina Ebadi, brought a motion to amend their statement of claim to add a claim for loss of equity, seeking an additional $610,000 in damages.

The defendants did not object to the amendments provided the plaintiffs gave relevant disclosure, reattended at examinations for discovery, and paid the defendants’ costs thrown away.

The court granted leave to amend the statement of claim and set a timetable for further steps, including disclosure and discoveries.

The court found the defendants were entitled to costs thrown away in the amount of $15,000, due to the expanded scope of litigation and the need to duplicate certain steps.

The timetable for next steps was set out, and the parties were directed to adhere to it.

The court considered whether a condominium unit owned by the late Qasem Mahmud was held in trust for the Arabic and Islamic Education Foundation.

The applicant, as estate trustee, sought a declaration that neither an express trust nor a purchase money resulting trust existed in favour of the Foundation.

The court found that the requirements for an express trust were not met, as Mr. Mahmud did not own the property when the declaration of trust was signed and the necessary formalities were lacking.

The court also found that the Foundation did not contribute to the purchase price at the time of acquisition, so no purchase money resulting trust arose.

The application was allowed, and the Foundation was found to have no beneficial interest in the property.

The Royal College of Dental Surgeons of Ontario sought penalties against Latif Alsoma for civil contempt, stemming from his breach of a 2018 consent order prohibiting him from practicing dentistry without a license and holding himself out as a dentist.

The court found Alsoma in contempt due to his deliberate and unremorseful actions, including performing controlled dental acts on a patient over an extended period and maintaining a dental clinic without registered dentists.

The court imposed a conditional sentence of 45 days house arrest, 100 hours of community service, and a $10,000 fine payable to the Provincial Treasurer.

A permanent injunction mirroring the consent order was also granted, along with substantial indemnity costs to the College, but investigatory costs were denied.

The plaintiff, Michael Forstner, sued the defendants, Manbir Singh Sandhu, Gurpreet Singh Sandhu, and Computer Window Inc., for conversion of a computer/dialer and for assault and battery following an altercation.

The court dismissed all of the plaintiff's claims.

It found that the plaintiff failed to prove conversion, as the computer was returned, and that the alleged assault and battery by Mrs. Sandhu was not established on a balance of probabilities.

The plaintiff's credibility was significantly undermined by inconsistent evidence regarding the purchase date and timeline of events.

Damages for conversion and personal injury were also not proven.

The defendants' counterclaim was withdrawn at the outset of the trial.

The respondent wife brought a motion to strike the applicant husband's application due to his repeated failure to comply with multiple disclosure orders in their divorce proceedings concerning financial matters, spousal support, child support, and equalization of net family property.

While the court found the applicant's non-compliance wilful, it declined to strike the pleadings immediately due to recent, albeit late, disclosure.

Instead, the court ordered the applicant to provide specific outstanding financial disclosure within strict timelines, including a business valuation, updated financial statements, and tax returns.

Failure to comply with certain orders would result in the abandonment of related claims, and the respondent was granted leave to bring a further urgent motion to strike if the applicant failed to meet the new deadlines.

The applicant sought to enforce two arbitration awards totaling over $4 million against the respondent real estate developer.

Pending the hearing of the enforcement application and the respondent's application to set aside the awards for reasonable apprehension of bias, the applicant moved for a preservation order under Rule 45.01 or a Mareva injunction to prevent the respondent from dissipating its remaining assets.

The court dismissed the motion, finding that Rule 45.01 was inapplicable because the applicant claimed no property interest in the assets, and a Mareva injunction was unwarranted because the applicant failed to establish a real risk that the respondent would dissipate its assets to avoid judgment.

The plaintiff moved under Rule 49.09 of the Rules of Civil Procedure to enforce a settlement agreement.

The court determined that Rule 49.09 was inapplicable as the settlement was not a formal Rule 49 offer.

Furthermore, the court found that no enforceable common law settlement agreement existed because the parties had not reached a mutual agreement on all essential terms, specifically the precise monetary amounts, as evidenced by ongoing negotiations.

Consequently, the plaintiff's motion was dismissed.

The plaintiffs, Dentalcorp Health Services Ltd. and related entities, sought an interim, interlocutory, and permanent injunction against the defendants, Dr. Arsalan Poorsina and his professional corporations, for alleged breaches of non-competition and non-solicitation agreements.

These agreements stemmed from the plaintiffs' 2016 purchase of five dental clinics from Dr. Poorsina.

The court found that the plaintiffs had a strong prima facie case that the restrictive covenants were breached and were enforceable, given they were negotiated by sophisticated parties in the context of a business sale.

However, the motion for injunction was dismissed because the plaintiffs failed to demonstrate irreparable harm that could not be compensated by damages, and the balance of convenience favoured the defendants, particularly due to the plaintiffs' significant delay in seeking injunctive relief and the fact that the restrictive covenant's term was nearing its end.

The plaintiff, Chicago Title Insurance Company, sought an interim ex parte Norwich order requiring non-party financial institutions to disclose extensive financial records of the defendants, who were involved in a fraudulent mortgage scheme.

The court dismissed the motion, finding that a second Norwich order was not necessary as the principal wrongdoer and other recipients of funds were already identified and named as defendants, allowing for discovery through the Rules of Civil Procedure.

The court emphasized that Norwich orders are extraordinary remedies not to be used as a substitute for discovery, especially when the identity of wrongdoers is known and litigation has commenced.

This motion concerned an application for court approval of a full and final settlement of statutory accident benefit claims for an adult under disability.

The applicant, who sustained catastrophic injuries in a motor vehicle accident, sought approval of a $735,000 settlement and the legal fees of his counsel.

The court approved the settlement and its proposed structured payment, finding it fair and reasonable and in the best interest of the person under disability.

However, the court declined to enforce the contingency fee agreement for accident benefits and instead approved a significantly reduced legal fee based on quantum meruit, citing the distinct nature of accident benefit claims compared to tort claims and the minimal legal work required.

The plaintiff sought an assessment of costs after accepting a Rule 49 offer to settle from State Farm Mutual Automobile Insurance Company and Certas Home and Auto Insurance Company, statutory third parties.

The court had previously awarded the plaintiff partial indemnity costs for the tort action but denied costs related to the recovery of statutory accident benefits (SABS) and Canada Pension Plan (CPP) disability benefits.

Both parties sought costs for the assessment motion.

The court found that success was divided, as the plaintiff succeeded on the quantum of legal fees for the tort action and disbursements, but failed on SABS and CPP costs.

State Farm failed to resist the quantum of legal fees.

Given the divided success and the complexity of some issues, the court ordered that each party bear their own costs.

The applicant brought a motion seeking leave to amend his application, orders compelling the respondent to answer refusals and undertakings, to strike certain paragraphs from the respondent's affidavit, and to provide medical information for the parties' child.

The applicant also sought to expand his access to the child to include one overnight per month.

The respondent consented to the application amendment and some production.

The court granted the applicant's requests for expanded overnight access, full medical information for the child, and struck inflammatory paragraphs from the respondent's affidavit.

Costs were awarded to the applicant.

The plaintiff moved to certify a class action against a children's aid society and other defendants following a privacy breach where a confidential document containing personal information of 284 individuals was accessed and posted online.

The defendants consented to or did not oppose certification.

The court found that the pleadings disclosed a cause of action, including the tort of intrusion upon seclusion, and that all criteria for certification under section 5(1) of the Class Proceedings Act, 1992 were satisfied.

The motion for certification was granted.

Following a successful injunction motion, the Plaintiff, Ontario Graphite Ltd., sought substantial indemnity costs of $130,886.09.

The Defendants argued for costs to be reserved or in the cause.

The court found the Plaintiff achieved substantial success on the motion, which involved important issues.

Considering the extensive materials, the utility of the information for the ongoing action, and the Plaintiff's reasonable settlement efforts, the court awarded the Plaintiff $80,000.00 in costs, inclusive of disbursements and taxes, to be paid within 60 days.

This award is without prejudice to further submissions on costs at trial.

The plaintiffs sought a Mareva injunction freezing assets of an individual defendant alleged to have received fraudulent transfers from a corporate defendant.

The court accepted that the plaintiffs had established a strong prima facie case that certain transfers constituted fraudulent conveyances and that judgment in related U.S. proceedings was likely.

However, the evidence failed to demonstrate the existence of assets in Ontario or a current risk of dissipation within the jurisdiction.

The court concluded that a Mareva injunction cannot be used as a tool to investigate whether assets exist.

Because the applicants could not satisfy the jurisdictional asset and dissipation requirements, the motion was dismissed.

At a Commercial List case conference in a complex civil fraud action involving numerous defendants and related proceedings, the court addressed litigation management issues including settlements, expert reports, discoveries, and trial planning.

Several defendants had reached settlements with the plaintiff.

Discoveries were complete and the matter was ready for trial.

The parties proposed an electronic trial process, which the court approved, directing that the plaintiff initially fund the infrastructure costs but permitting those costs to qualify as allowable disbursements for later costs determination.

The court also endorsed a streamlined trial timetable expected to shorten the originally estimated trial length.

A former senior executive sued for wrongful dismissal after termination without cause.

The dispute concerned whether a later employment document replaced an earlier agreement containing a 12‑month severance clause, the appropriate reasonable notice period, and entitlement to bonus payments.

The court held the later document constituted a new employment agreement that displaced the earlier severance provision, leaving notice to be determined under the common law.

Applying the Bardal factors, the court awarded a 12‑month reasonable notice period despite the employee’s relatively short tenure and rejected the employer’s proposed three‑month period.

The court also denied the employee’s claim to bonus payments because the bonus plan required active employment at the payout date.

The plaintiff brought an undefended action seeking damages after her checked luggage went missing during international air travel from Canada to Togo.

She claimed extensive expenses, medical costs, emotional distress, and punitive damages following delays in recovering the baggage.

The court held that liability for lost or delayed baggage in international carriage by air is governed by the Montreal Convention, 1999, incorporated into Canadian law by the Carriage by Air Act, which limits recovery to 1,000 Special Drawing Rights unless additional insurance was purchased.

Claims for pain and suffering, emotional distress, and punitive damages were barred by the Convention.

The court awarded the capped compensation amount for delayed baggage together with reimbursement of an improperly charged airline upgrade fee.

Following earlier reasons amending an order under the slip rule, the court addressed competing claims for costs.

The applicants sought partial indemnity costs after succeeding on the motion to correct the order, while the respondent sought substantial indemnity costs and personal costs against opposing counsel under Rule 57.01 and Rule 57.07.

The court declined to revisit the merits of the slip issue despite further submissions from the respondent.

Applying the principles governing personal costs against counsel, the court found the case did not meet the high threshold for such relief and that the respondent had largely been unsuccessful.

Given that the applicants’ counsel created the error necessitating the motion and contributed to unnecessary conflict, the court also declined to award costs in the applicants’ favour.