Scott R. Fairley

The plaintiffs brought a motion for summary judgment seeking a declaration that a binding agreement of purchase and sale was reached in September 2012 to divide four jointly-owned healthcare businesses.

The defendants brought a cross-motion for ancillary relief, including the removal of directors and the appointment of a receiver.

The court dismissed both motions, finding that the parties had not agreed on all essential terms of the separation and that the draft agreement was subject to independent legal review which never occurred.

The court held that the ancillary relief sought by both parties was premature and should be resolved at trial.

The plaintiff sought a declaration arising from a 50/50 partnership agreement to purchase an investment property.

The defendant argued that the plaintiff had agreed to withdraw in exchange for the return of his share of the deposit.

The court rejected that position on the evidence, finding it improbable that the plaintiff would abandon a lucrative venture and concluding that the surrounding circumstances supported the plaintiff's account.

The court granted a declaration that the plaintiff held a 50 percent ownership interest in the property, subject to payment of an amount to be determined by the local Referee, including assessment of purchase and carrying costs.

The applicant sought to enforce a non-competition clause in a locum agreement against a chiropractor who later practised in a nearby town and treated former clinic patients.

The court held the agreement had not expired, but found the restrictive covenant unenforceable because any proprietary interest existed only until the clinic was sold and a non-solicitation clause would have adequately protected the clinic’s interests.

The clause was found to restrain competition generally by prohibiting treatment of former patients rather than merely solicitation.

The application was dismissed and the respondent received costs.

The plaintiff, Graydon Cragg, funded and established a financial services business through his corporation, 1350369 Ontario Inc. The defendants, Tom Jarvis and Darren O'Halloran, managed the business and developed its client base.

In 2005, the defendants abruptly left the business, taking the client files and staff to set up a competing operation.

The court found that Jarvis and O'Halloran were employees and fiduciaries of the plaintiff's business, not independent contractors.

By taking the book of business without compensating the plaintiff, they breached their fiduciary duties and were unjustly enriched.

The court directed a business valuation to determine damages.

The plaintiff brought a motion to remove opposing counsel after a law firm merger created a conflict between a lawyer who had briefly acted for the plaintiff on an interim basis and another lawyer in the merged firm who continued to act for one defendant.

Applying the Supreme Court of Canada's conflict test, the court found there was no dispute that confidential information relevant to the matter had been received.

The decisive issue was the risk that the information would be used to the plaintiff's prejudice, viewed from the perspective of a reasonably informed member of the public.

Because the ethical wall was not erected until approximately six weeks after the conflict first arose, the respondents failed to rebut the strong inference that lawyers working together share confidences.

The motion to remove counsel was granted.

The appellants sued the City of Oshawa for negligence, alleging the City incorrectly advised them that no building permit was required for a deck, and subsequently negligently investigated and prosecuted them under the Building Code Act.

The trial judge dismissed the action, finding the City acted reasonably.

On appeal, the Court of Appeal upheld the dismissal, confirming the trial judge applied the correct standard of care for negligent investigation.

However, the Court allowed the appeal on costs, reducing the trial judge's award from substantial indemnity to partial indemnity, as the appellants' conduct was not reprehensible.

Residents of a life lease seniors’ residence sought a declaration restoring a contractual rule designating their floor as “pet‑free.” The residents argued the housing corporation breached the life lease agreement and failed to act in good faith when it amended the rules to remove the pet prohibition.

The court held that the agreement expressly authorized the corporation to amend the rules and regulations, subject only to consultation with the residents’ advisory association while retaining final decision‑making authority.

On the evidentiary record, the corporation consulted residents and considered objections before confirming the change.

The court found the decision was not arbitrary and was made in good faith.

The parties disputed the ownership of a portion of beachfront land and an isthmus connecting a small island to the mainland in Georgian Bay.

The respondent held paper title to the disputed land, which had ambulatory boundaries that changed with the water level.

The applicant, who owned the island, claimed possessory title or a prescriptive easement over the disputed land, arguing that she and her predecessors had used it continuously for access and recreation under the mistaken belief that they owned it.

The court found that the applicant had established adverse possession, as the possession was open, notorious, and continuous for the requisite statutory period prior to the land's conversion to the Land Titles system.

The court also held that occasional inundation of the land by water did not interrupt the limitation period for adverse possession of riparian property.

The respondent's expert witness evidence was rejected due to bias.

The applicant was declared the owner in fee simple of the disputed land.

During a property dispute trial, the possessory claimant brought a mid‑trial motion seeking production of email communications and notes exchanged between the objector’s counsel and the objector’s expert surveyor.

The court found that the communications were relevant to assessing whether the expert had abandoned the role of an independent expert and instead acted as an advocate for the retaining party.

Claims of solicitor‑client privilege, litigation privilege, and the lawyer’s work product doctrine were rejected for most communications because the materials were probative of expert bias and formed part of the factual foundation for the expert’s opinions.

The court held that exposing potential expert bias justified disclosure notwithstanding privilege claims.

The motion was granted and the communications were admitted into evidence on a voir dire.

Following a trial concerning allegations of negligence by municipal officials relating to the requirement of a building permit for a deck constructed at a multi-unit residential property, the plaintiffs were unsuccessful.

The plaintiffs had originally advanced a claim for malicious prosecution but abandoned it shortly before trial, while continuing to seek aggravated and punitive damages based on allegations of improper and dishonest conduct by municipal officials.

The defendant municipality sought substantial indemnity costs, arguing that the plaintiffs pursued speculative and serious allegations without evidentiary foundation and forced extensive preparation, including for claims later withdrawn.

The court found the plaintiffs advanced excessive and unfounded allegations and had rejected several settlement offers from the defendant.

Substantial indemnity costs were therefore justified, though the court reduced the quantum sought and fixed costs at $70,000 inclusive of HST.

In a new trial ordered following a successful appeal concerning a possessory claim and an appeal under the Land Titles Act, the objector sought to read portions of the claimant’s prior cross‑examination transcript from the original trial into evidence.

The claimant objected on the basis that prior procedural orders required lay witnesses to testify viva voce and did not authorize the use of her previous testimony.

The court held that the Rules of Civil Procedure governed the proceeding rather than the evidentiary flexibility permitted under the Land Titles Act or the Statutory Powers Procedure Act.

The proposed transcript excerpts could only be used for impeachment and should have been put to the witness during cross‑examination in accordance with the rule in Browne v. Dunn and the Ontario Evidence Act.

As the statutory and common‑law requirements for admitting such evidence were not satisfied, the motion to read in the transcript evidence was dismissed.

The defendant moved to set aside a default judgment and sought leave to file a statement of defence and counterclaim, or alternatively to stay enforcement of the judgment pending determination of a counterclaim alleging deficiencies in contractual work.

The court found no evidence that the defendant intended to defend the action when the defence was due and noted repeated warnings and follow-ups from the plaintiff before default judgment was obtained.

The alleged deficiencies were not raised until months after judgment and enforcement efforts.

Applying the principles governing motions to set aside default judgment, the court held the defendant had effectively made a conscious decision not to participate in the litigation and had not demonstrated a meritorious defence at the relevant time.

The default judgment remained enforceable, although the defendant’s counterclaim could proceed independently.

A status Indian respondent challenged the constitutionality of Section 41 of the Family Responsibility and Support Arrears Enforcement Act, 1996 (FRSEAA), arguing that enforcement proceedings by the Director against him for spousal support arrears violated his rights under the Indian Act.

The respondent contended that the enforcement measures impaired his vested legal rights as a status Indian under Sections 29 and 89(1) of the Indian Act.

The court dismissed the constitutional challenge, finding that the Director's enforcement actions were authorized by Section 89(1) of the Indian Act because the Director acts "for the benefit of" the support recipient, who was also a status Indian.

The court also found that Section 88 of the Indian Act permitted the application of the provincial FRSEAA as a law of general application.

The plaintiffs brought a negligence action against a municipality alleging that building officials negligently provided incorrect advice about whether a building permit was required for construction of a residential deck.

After acting on the advice, the plaintiffs were later ordered to obtain a permit and faced enforcement proceedings under the Ontario Building Code Act.

Although a later Divisional Court decision determined that a permit was ultimately unnecessary, the trial court held that the municipal officials had acted reasonably in responding to a brief verbal inquiry and in subsequently enforcing the Building Code after receiving a complaint.

Applying the Anns/Kamloops framework and authorities including Ingles v. Tukaluk Construction Ltd., the court found the officials met the applicable standard of care in administering the Building Code and municipal policy.

The court also held that the claimed damages, including legal costs from prior proceedings and alleged lost income, were not recoverable in this negligence action.

The claim was dismissed.

Following a successful summary judgment motion dismissing the action, the defendant sought costs of both the motion and the underlying proceeding.

The plaintiff argued that costs should be limited because the defendant delayed bringing the summary judgment motion until shortly before trial despite participating in discovery and other litigation steps for years.

The court rejected this argument, finding the defendant acted reasonably in defending the claim and that evolving jurisprudence after amendments to Rule 20 justified bringing the motion after discoveries were completed.

Substantial indemnity costs were refused because the defendant’s settlement offers did not trigger Rule 49 consequences.

Partial indemnity costs were fixed by the court, including fees and disbursements, payable forthwith.

The defendants brought a motion for summary judgment dismissing claims arising from the premature deterioration of pine roof shingles installed on the plaintiff’s home.

The plaintiff alleged breach of contractual warranty, breach of statutory warranties under the Sale of Goods Act, and negligent misrepresentation relating to representations that the roof would last 50 years.

The court found the plaintiff had discovered the alleged defects and the basis of her claims by November 2005, yet did not commence the action until March 2008.

Applying the two‑year limitation period under the Limitations Act, 2002, the court held the claims were statute‑barred.

The court also concluded there was no evidence the retailer provided a contractual warranty or representation guaranteeing the shingles for 50 years.

The possessory claimant brought a motion to stay a new trial or, in the alternative, for security for costs, following a successful appeal that ordered a re-trial due to apprehension of judicial bias.

The objector brought a cross-motion for security for costs.

The court noted that both parties had achieved parallel success in previous proceedings and faced similar risks of losing their properties to pay litigation costs.

Finding that a stay would deny access to justice and that neither party should be given an advantage under the rules, the court dismissed both the motion and the cross-motion.

Following the dismissal of its application for the enforcement of letters rogatory, the applicant argued that no costs should be awarded because the application raised novel issues of law.

The court rejected this argument, finding that the applicant was a commercial entity pursuing its own private interests in foreign litigation, not a public interest litigant.

The court awarded partial indemnity costs to the successful respondent but reduced the quantum claimed from $32,647.71 to $18,189.46, noting that the respondent had already received a substantial costs award on an earlier, nearly identical application.

The applicant, an American pharmaceutical company, sought to enforce amended letters rogatory issued by a United States District Court to compel testimony and documentary evidence from the respondent, a federal Crown corporation, for use in foreign litigation.

The respondent opposed the application, arguing that it enjoyed Crown immunity.

The court held that the presumption of Crown immunity under s. 17 of the federal Interpretation Act prevented the enforcement of letters rogatory against a Crown agent, as the provincial Evidence Act does not bind the federal Crown.

Furthermore, the court found that the applicant failed to satisfy the legal standard for enforcing letters rogatory, as the evidence sought was not necessary for trial and had already been obtained through an Access to Information Act request.

The application was dismissed.

Following a commercial lease trial between a tenant applicant and a landlord respondent, the court was required to determine the appropriate costs award.

The tenant sought $185,421.51 in post‑trial costs arising from extensive factual analysis required due to the landlord’s inadequate maintenance records and litigation conduct.

The court held that while the tenant had beaten settlement offers and was largely successful, the circumstances did not justify substantial indemnity costs.

Considering the parties’ conduct, the scale of the litigation, and the principles in Rule 57 of the Rules of Civil Procedure, the court fixed costs on an enhanced partial indemnity basis.