Sean Dewart

The moving parties brought a motion for leave to appeal the decision of Kimmel J. dated December 13, 2024.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs of $2,200 to the responding parties.

The moving parties brought a motion for leave to appeal a decision of the lower court.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to the responding parties in the fixed amount of $2,200.

The defendant, Michelangelo Rizzo, moved to stay a Toronto action as an abuse of process due to a partial settlement agreement between the plaintiffs and co-defendant Tara Daniel that was disclosed to him but not to the court.

The plaintiffs sought a right of way over property owned by Rizzo and Daniel, or damages in lieu.

The court found that the procedural agreement did not sufficiently change the litigation alignment to justify a stay, but the plaintiffs' failure to disclose the agreement to the court warranted a costs sanction.

The motion for a stay was dismissed, but costs were awarded to Rizzo.

The defendants, Dentons Canada LLP and Philip Rimer, brought a third-party claim against various individuals and entities, including other lawyers and advisors, seeking contribution and indemnity in a professional negligence action.

The third parties brought Rule 21 motions to strike the third-party claim, arguing that they acted as agents for the plaintiff and therefore any negligence on their part would be attributable to the plaintiff, precluding a third-party claim.

The court struck the claims against one director (Wang) and the escrow agent, finding them doomed to fail based on agency and contractual principles.

However, the court allowed the claims against the other third-party advisors and lawyers to proceed, finding that they fell into a category of non-agency advisory roles where the plaintiff might not be held contributorily responsible for their actions.

Leave to amend was granted to particularize the claims against certain third parties.

The plaintiffs brought two motions in a class action: one to approve a settlement agreement with Graham Turner LLP, declare notice not required under s. 19 of the Class Proceedings Act, approve a notice plan for class members, and grant leave to remove Emily Flammini as a representative plaintiff; and a second motion to approve Class Counsel's legal fees, the Class Proceedings Fund's levy, and the use of the remaining settlement fund for ongoing disbursements.

The court approved the settlement as fair and reasonable, found notice of the hearing unnecessary given the use of funds for disbursements, approved the proposed notice plan, and granted the removal of the representative plaintiff.

Class Counsel's fees and the CPF levy were approved, and the balance of the settlement fund was ordered to be held in trust for the class and applied towards ongoing disbursements.

The applicant sought statutory accident benefits following a 2010 motor vehicle accident.

The insurer raised a preliminary issue that the applicant was statute-barred from proceeding with her application for income replacement and housekeeping benefits due to the expiry of the two-year limitation period under s. 56 of the Schedule.

The Tribunal found that the initial January 2011 letter was a valid denial for both benefits.

However, because the insurer subsequently reinstated the income replacement benefit in February 2011, the limitation period for that benefit was restarted and a subsequent termination without a dispute resolution form did not trigger a new limitation period.

The applicant was therefore barred from proceeding with the housekeeping benefit claim, but permitted to proceed with the income replacement benefit claim.

The appellant appealed an order setting aside an ex parte order that had extended the time for service of his statement of claim.

The motion judge found the appellant failed to make full and fair disclosure regarding an ongoing Mutual Fund Dealers Association investigation.

The motion judge also dismissed the appellant's cross-motion to extend time retroactively due to prejudice to the respondents.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's factual findings and deferring to the discretionary balancing of prejudice.

The applicants brought a motion to strike an affidavit filed by the Registrar in an application for judicial review of a decision refusing reimbursement for burial site investigation costs.

The court held a case conference and summarily struck the affidavit, finding it was inadmissible as it went beyond providing general background and improperly sought to supplement the decision-maker's reasons with post-decision commentary and factual assertions.

The plaintiffs moved to set aside a dismissal order and a full and final release from a 2013 settlement, arguing the injured plaintiff was under a disability and the settlement was never approved by the court under Rule 7.08.

The plaintiffs' former lawyer had fraudulently settled the action without their knowledge and misappropriated the funds.

The court found the plaintiff was under a disability at the time, but declined to set aside the settlement because the tort insurer acted in good faith, was unaware of the disability, and the settlement itself was not unconscionable.

The motion was dismissed.

The defendants moved to strike the jury notice in an action for malicious prosecution.

The plaintiff, a former lawyer, alleged that the defendants (Law Society of Ontario and its counsel) had maliciously prosecuted him since 2002, leading to the revocation of his license.

The defendants argued the case was too complex for a jury due to intertwined legal and factual issues from multiple prior proceedings and potential admissibility disputes.

The court dismissed the motion, applying a "wait and see" approach, finding that the issues, including concepts like causation, reasonable and probable grounds, issue estoppel, and malice, could be explained to a jury.

The court also noted the defendants' delay in raising complexity and the summary trial format simplifying evidence handling.

The decision emphasized the substantive right to a jury trial and that complexity concerns often do not materialize as anticipated.

The Corporation of the City of Kawartha Lakes moved to stay or dismiss the action against it, alleging abuse of process due to the plaintiffs' delayed disclosure of a cooperation agreement with co-defendants.

The plaintiffs concurrently moved for court approval of this agreement.

The court examined the disclosure obligations for partial settlement agreements that alter the litigation landscape.

It found that while immediate disclosure is generally required, the moving party had sufficient prior knowledge of the agreement's essential terms to avoid "litigation by ambush." Consequently, the motion to stay was dismissed, and the plaintiffs' motion to approve the cooperation agreement was granted.

A separate consent motion to dismiss the action against The Dominion of Canada General Insurance Company and John Doe was also granted.

The appellants, six defendants in a construction dispute, appealed a motion judge's decision dismissing their request to permanently stay the action.

They argued that a partial settlement between the plaintiff (respondent) and three other defendants (including an insurer) was not immediately disclosed, constituting an abuse of process.

The settlement involved the plaintiff assigning claims to the insurer and contemplating a Pierringer Agreement.

The motion judge found the settlement did not significantly alter the litigation dynamics to require immediate disclosure and that disclosure, if required, was immediate.

The Court of Appeal upheld the motion judge's finding that the settlement did not significantly alter the litigation dynamics, emphasizing that the claims against the settling parties were fundamentally distinct from those against the appellants, and the use of the term "Pierringer Agreement" was not determinative without a substantive change in adversarial positions to cooperative ones.

The appeal was dismissed.

This appeal concerned an insurance coverage dispute following a cyberattack on CarePartners, a healthcare company.

A class action was commenced against CarePartners, and Aviva, their insurer, denied full coverage due to a Data Exclusion Endorsement.

The parties entered a funding agreement for defence and settlement on a 60/40 basis, without prejudice to coverage issues.

Aviva sought a declaration in Superior Court regarding its duty to defend and indemnify.

The application judge found no duty for personal injury claims but a duty for bodily injury claims, without allocating costs.

CarePartners cross-appealed, seeking reimbursement of their 40% settlement contribution and arguing that a new application by Aviva for allocation was res judicata.

The Court of Appeal dismissed CarePartners' cross-appeal, affirming the application judge's coverage decision and ruling that the allocation issue was not before the lower court, thus res judicata did not apply.

Rosemont brought an application against Cityzien and Mr. Faraci regarding an abortive real estate transaction and property management dispute.

Rosemont and Cityzien reached a partial settlement, which was negotiated by a Cityzien director without the required unanimous shareholder approval.

Rosemont moved to enforce the settlement, while Mr. Faraci moved to permanently stay the application against him, arguing that the failure to promptly disclose the settlement—which changed the litigation landscape by aligning Rosemont and Cityzien against him—constituted an abuse of process.

The court refused to enforce the settlement, finding it unauthorized and improvident, and granted the stay against Mr. Faraci, holding that the delayed disclosure of the settlement was an abuse of process.

This decision addresses the issue of costs following the striking out of the plaintiff's claim.

The plaintiff sought to have his former lawyer personally pay costs or for no costs to be awarded.

The court dismissed the request for personal costs against the lawyer, finding his conduct did not cause unnecessary costs and did not meet the high threshold for such an order.

The court awarded partial indemnity costs to the defendants and imposed terms requiring the plaintiff to pay all outstanding costs orders (including prior ones) before being permitted to amend his claim, failing which the action would be dismissed.

The appellant contested the denial of statutory accident benefits following a 2010 automobile accident, bringing simultaneous proceedings before the Divisional Court by way of statutory appeal on questions of law and judicial review on questions of fact and mixed fact and law.

The courts below held that, where there is a limited statutory right of appeal, judicial review should only be exercised in exceptional or rare cases.

The Supreme Court of Canada held this was an error: a circumscribed statutory right of appeal on questions of law does not restrict the availability of judicial review on questions of fact or mixed fact and law, and the Strickland framework does not support imposing a heightened threshold for judicial review in such circumstances.

The Court further found that the LAT adjudicator's reconsideration decision was unreasonable because he failed to consider the effect of the reinstatement of income replacement benefits on the validity of the initial denial and failed to have regard to relevant tribunal jurisprudence on the point.

The appeal was allowed and the matter remitted to the LAT adjudicator for reconsideration.

The defendants brought a motion for summary judgment to dismiss an action concerning the interpretation of a centralized health and benefits trust deed.

The plaintiffs, a local union and three of its members, sought an order that the trust wrongly denied them an annual open enrollment window for benefits, which they argued was guaranteed by their prior local collective bargaining agreement and incorporated into the centralized trust.

The court found that the trust deed, read in its grammatical sense and as a whole, and consonant with the purpose of the collective bargaining regime, did not require the continuation of the annual open enrollment window.

The court emphasized the trustees' duty of prudence in adopting industry standards to minimize "anti-selection" risk.

The motion for summary judgment was granted, dismissing the plaintiffs' claim.

The Law Society of Ontario (LSO) brought a motion for a stay of a Divisional Court costs order, pending the determination of its motion for leave to appeal the Divisional Court's substantive decision.

The Divisional Court had allegedly ruled on costs without affording parties an opportunity for submissions.

The Court of Appeal granted the stay, applying the three-part test from RJR-MacDonald.

The court found a serious issue regarding both the substantive decision and the costs order, irreparable harm to the LSO if required to pay out monies that might be unrecoverable, and that the balance of convenience favored the stay, especially given its limited duration and the LSO's automatic entitlement to a stay if leave to appeal is granted.

Following the settlement of the main class proceeding, the defendant and third party plaintiff brought a consent motion to dismiss the third party claims against the remaining third parties.

The court granted the order dismissing the third party action with prejudice and without costs.

The Law Society of Ontario (LSO) investigated a cheating scandal involving the November 2021 licensing exams.

Based on statistical anomalies, the LSO voided the applicants' exam results and their registration in the licensing process without holding a hearing.

The applicants sought judicial review.

The Divisional Court held that while voiding the compromised exams was a reasonable administrative measure, voiding the applicants' registration and imposing regulatory sanctions without a hearing breached procedural fairness.

The court quashed the punitive sanctions and remitted the matters to the LSO.