Sean F. Dunphy

The plaintiff participated in a charitable donation tax shelter, claiming substantial tax refunds which were later disallowed by the Canada Revenue Agency (CRA).

The plaintiff brought a claim in Superior Court alleging CRA and its employees owed a duty to police the registration of the charity associated with the scheme and to warn the public.

The defendants moved to strike the statement of claim.

The court allowed the motion, finding no duty of care owed by CRA to warn taxpayers about unsuccessful tax schemes, that the Charter claim was bald and untenable, and that claims against individual employees were an abuse of process.

The court also struck damages related to the lost tax deduction as being within the exclusive jurisdiction of the Tax Court.

The defendants brought a motion to disqualify the plaintiff's counsel, Gowling WLG (Canada) LLP ("Gowlings"), from further representing the plaintiff.

The defendants argued that Gowlings possessed confidential information obtained during failed negotiations with four dissident partners (now associated with the defendants) and that Gowlings partners were likely material witnesses.

The court found that Gowlings held confidential information relevant to the claims, imparted under a reasonable expectation of confidentiality, and that there was a risk of misuse.

Given the lack of an immediate and effective ethical wall, and the early stage of litigation, the court granted the motion, disqualifying Gowlings.

The potential for Gowlings partners to be witnesses was considered an additional factor supporting disqualification.

The plaintiffs sought damages from the vendor for alleged deficiencies in a renovated home they purchased.

The defendant vendor, who was self-represented and failed to appear at trial, was sued for costs incurred to rectify the issues.

The court examined whether alleged oral agreements and various deficiencies constituted warranties that survived the completion of the Agreement of Purchase and Sale (APS) or were merely conditions of closing.

The court found that most claims related to conditions of completion and did not survive closing, except for specific warranties regarding chattels and an undertaking for a $10,000 holdback.

The plaintiffs were awarded the $10,000 holdback and a limited amount for specific breaches of surviving warranties, totaling $3,563.31 plus pre-judgment interest.

This endorsement addresses costs following the dismissal of the plaintiffs' claim.

The court considered whether the successful defendants, Sparkasse Siegen and Thomas Magnete GmbH, should receive costs on a higher scale due to settlement offers, and whether costs should be awarded against a non-party, Mr. Mellema.

The court declined to award higher scale costs, finding the plaintiffs' claim was not frivolous and their refusal to accept settlement offers was not unreasonable.

It also declined to award costs against Mr. Mellema personally, noting the defendants' awareness of his involvement and their prior opportunities to seek increased security for costs or provide notice.

The plaintiffs were ordered to pay partial indemnity costs to both defendants.

This costs endorsement addresses the allocation of costs following an underlying motion.

The court considered a pre-litigation settlement offer made by the responding party, Lise Partanen, to the moving party, Edward Sorozan Jr., which was more favourable than the outcome achieved by Mr. Sorozan Jr. Despite not being a formal Rule 49 offer, the court gave it significant weight.

The court ordered Mr. Sorozan Jr. to pay Ms. Partanen $2,500 in costs, balancing the principle of indemnity, reasonable expectations, and the unique circumstances, including the early settlement offer.

The Attorney General applied under the Civil Remedies Act for civil forfeiture of $8,740 seized from a young Somali-Canadian man.

The police seized the cash after detaining the man near the scene of an unverified shooting, relying on circumstantial evidence including the amount of cash, a police dog sniff, and the man's uncooperative behaviour.

The court dismissed the application, finding the evidence entirely circumstantial and highly equivocal.

The court emphasized that the burden of proof rests on the Attorney General and cautioned against relying on stereotypes or the mere possession of cash to infer unlawful activity.

The applicants, owners of residential and additional parking units in a condominium, brought an application disputing the allocation of common expenses to their parking units and seeking access to financial information.

The court found that a previous order had already definitively ruled that parking units are subject to common expenses.

On the merits, the court interpreted the condominium's Declaration to clearly mandate common expense contributions from parking unit owners, as these are separate units.

The application was dismissed, and costs were fixed against the applicants, acknowledging some divided success on information access but the respondents' overall success on the main legal issue.

The Attorney General of Ontario applied under the Civil Remedies Act, 2001, for forfeiture of $64,560 in Canadian currency seized from an unlicensed gambling operation.

An audit revealed the actual amount seized was $62,560 due to a counting error.

The court found the funds were proceeds of unlawful activity, as evidenced by the sophisticated gambling setup, lack of licenses, and absence of credible claims of legitimate ownership.

The application for forfeiture was granted for the corrected amount of $62,560.

The defendants moved to strike various claims by the plaintiff, Apotex Inc., including claims under the Trade-marks Act and the Monopolies Acts, as well as claims for unjust enrichment and a "basket clause" for other relief.

The motion was brought under Rules 21.01(1)(b) and 25.11(b) and (c) of the Rules of Civil Procedure, arguing no reasonable cause of action, frivolousness, vexatiousness, or abuse of process, and also raising arguments of "complete code" and res judicata.

The court dismissed the defendants' motions, except for the unjust enrichment and "basket clause" claims which Apotex did not oppose, finding that the legal issues were insufficiently settled to be decided at the pleadings stage.

The court emphasized the need to avoid piecemeal appeals and directed a case conference to expedite the matter to trial.

The Superior Court of Justice issued a costs endorsement following the dismissal of the plaintiffs' action due to their non-appearance at trial.

The defendants sought costs on a substantial indemnity basis.

The court awarded costs, fixing them at $42,342.98 plus post-judgment interest, payable by the plaintiffs Lina and Paul Lochner.

The court determined that while general costs for the action should be on a partial indemnity basis, costs for trial preparation thrown away due to the plaintiffs' deliberate non-appearance warranted a substantial indemnity scale.

This is an appeal from a Master's decision concerning an ex parte certificate of pending litigation.

The Superior Court found that the plaintiff failed to make full and fair disclosure of material facts when obtaining the certificate, misstating the nature and purpose of underlying agreements related to an interest in land.

The Master also erred in ordering all proceeds of sale into court, exceeding the plaintiff's claimed interest.

The appeal was allowed, the Master's order set aside, and the certificate of pending litigation discharged.

The defendants moved to set aside a default judgment in a mortgage enforcement action.

The court, on its own motion, stayed the entire proceeding pursuant to s. 106 of the Courts of Justice Act, finding that the plaintiff had initiated a second action for the same debt while an earlier, defended action was still pending.

The court deemed this an abuse of process, setting aside the default judgment and staying the current action in favour of the earlier one, reserving costs to be dealt with in the 2011 action.

The plaintiff, a construction manager, moved for an order to compel the appointment of an expert to determine if project delays constituted a "material change in scope" under the contract, which would entitle them to additional compensation beyond a fee cap.

The court dismissed the motion, finding that delay itself was not a change in scope as defined by the contract, but rather a consequence.

The court also held that the specific dispute regarding materiality had not yet crystallized, rendering the motion premature, and declined to grant leave under the Construction Lien Act in the current circumstances.

The appellant, J.S., appealed two decisions of the Consent and Capacity Board: one confirming a Community Treatment Order (CTO) dated November 11, 2015, and another confirming her lack of capacity to consent to treatment prescribed under her Community Treatment Plan.

The Superior Court reviewed the Board's findings on the validity of the CTO, the reasonableness of its confirmation, and the finding of incapacity.

The court dismissed both appeals, upholding the Board's decisions, finding that a technical error on the CTO form was not fatal, the Board reasonably concluded that without the CTO, the appellant was likely to suffer substantial mental deterioration, and the finding of incapacity was reasonable given the appellant's inability to appreciate her mental illness due to the disorder itself.

The court addressed competing claims to life insurance proceeds between the deceased's spouse and son, following the insurer's payment of disputed funds into court.

The son moved for payment to him, while the spouse cross-moved for payment to her.

The court inferred the existence of a lost beneficiary designation form naming the spouse as the sole beneficiary, based on circumstantial evidence including a superseded prior designation, a subsequent "Retiree Group Life Insurance Record" confirming the spouse as sole beneficiary, and the deceased's consistent testamentary intentions.

The court dismissed the son's motion and granted the spouse's cross-motion, ordering the funds paid to her.

The plaintiffs, suppliers of automated assembly lines, sued the defendants for negligent misrepresentation and breach of contract following the cancellation of a major auto sector project.

The plaintiffs alleged they relied on a comfort letter from the defendants regarding project financing and that a subsequent oral agreement was made for the defendants to assume the debt.

The court dismissed the claims, finding the comfort letter was not misleading and reliance on it was unreasonable given the plaintiffs' own deceptive request.

The court also found no evidence of the alleged oral agreement and held that any such claim would be barred by the Limitations Act and the Statute of Frauds.

This application sought rectification of a corporate resolution declaring a dividend.

Due to a clerical error, the resolution and Canada Revenue Agency election form were incorrectly dated, resulting in a 60% tax liability under the Income Tax Act instead of the intended tax-free capital dividend.

The court granted the rectification, finding a clear and specific intention to achieve a tax-free distribution that was frustrated by a simple mistake in implementation.

An application to approve a settlement for a plaintiff under disability, injured in a motor vehicle accident, was adjourned by the Ontario Superior Court of Justice.

The court found the submitted affidavits from the litigation guardian and solicitor to be inadequate, lacking sufficient detail regarding the plaintiff's injuries, their current status, and the justification for the proposed legal fees, particularly concerning any contingent fee arrangement.

The court emphasized its responsibility to ensure the settlement is in the best interests of the party under disability and that legal rights are not compromised without proper compensation, and that fees are justified.

Further affidavits were directed to address these deficiencies.

The applicant, Sheila Di Florio, sought to claim contribution from her brothers-in-law, Tony and Frank Di Florio, for a joint and several judgment debt she alleged to have satisfied on behalf of her separated spouse, Sandy Di Florio, who had declared bankruptcy.

The court dismissed the application, finding that Sheila failed to provide evidence that she personally made any payment towards the debt.

Furthermore, the court held that any right of contribution arising from payments made by or on behalf of Sandy's bankrupt estate vested solely in Sandy's trustee in bankruptcy, not in Sandy personally after his bankruptcy, and therefore could not be assigned to Sheila.

The applicant brought an ex parte application seeking an order to examine the respondent before trial in Montreal for an action pending in the Quebec Superior Court.

The court dismissed the application, finding no basis to proceed ex parte and noting multiple deficiencies in the materials.

Specifically, the applicant failed to comply with the Interprovincial Summonses Act by not providing a certificate signed by a judge, failing to tender witness fees, and not addressing the lack of reciprocal immunity provisions in Quebec.

The dismissal was without prejudice to bringing the application back on notice with a proper record.