Shawn J. O’Connor

A personal injury action arising from a 12-year-old plaintiff leaping from a balcony in community housing after an intruder forced his way into her apartment.

The defendants moved to strike portions of the statement of claim and to compel further production of documents.

The court dismissed the motion to strike, finding the pleadings relevant to establishing foreseeability and duty of care.

The court granted the motion for further affidavits of documents but directed the parties to engage in collaborative discovery planning under Rule 29.1 before compliance.

No costs awarded due to divided success.

The Court of Appeal for Ontario dismissed an appeal by S.D.M.O. Industries (Kohler-SDMO) and Kohler Co., who sought to stay proceedings on the basis of lack of jurisdiction or a forum selection clause favoring a French court.

The court held that Ontario had jurisdiction, the forum selection clause was not proven to be valid or applicable, and the motion judge made no reviewable error.

The appeal was dismissed with costs.

The plaintiffs brought an action for damages arising from catastrophic failures of emergency generators at a hospital.

Defendants SDMO and Kohler moved to stay proceedings, arguing lack of jurisdiction or that Ontario was not an appropriate forum.

The court found Ontario had jurisdiction simpliciter as the torts (property damage, failure to warn, negligent misrepresentation) occurred in the province.

The court also found the forum selection clause in the contract between SDMO and GAL Power was not properly before the court and would not apply to third parties or be enforceable against GAL Power.

Finally, the court determined Ontario was the most appropriate forum, considering the location of parties, witnesses, and evidence, and the existence of related proceedings.

The motion for a stay was dismissed.

The defendants brought a motion for leave to deliver two supplementary affidavits after cross-examinations had taken place, in the context of a plaintiffs' motion for a certificate of pending litigation.

The court applied the four-part test for granting leave under Rule 39.02(2), considering relevance, responsiveness to cross-examination, potential prejudice, and explanation for delay.

The court found the evidence relevant and responsive, no non-compensable prejudice, and accepted the explanation for delay, noting that some documents were already in the opposing party's possession.

The motion was granted, and the plaintiffs were ordered to pay costs.

The plaintiff landscaping company brought a construction lien action for an unpaid balance of $19,465.00 for stonework performed at the owner's property.

The defendants counterclaimed for damages for delay and deficiencies.

At the reference, the plaintiff moved to strike portions of a defendant's affidavit that contradicted an admission made on discovery that the defendant had not corrected the alleged deficiencies.

The court refused to allow the withdrawal of the admission, finding it would cause non-compensable prejudice.

The court granted the plaintiff's claim, finding the delays were caused by the general contractor and there was no evidence of deficiencies.

The general contractor was ordered to pay the outstanding balance, and the owner was found personally liable for the $18,000.00 statutory holdback.

The counterclaim was dismissed.

The applicant, a self-employed individual who had taken maternity leave prior to the accident, sought an income replacement benefit (IRB).

She argued that calculating her pre-accident income based on her last completed taxation year under s. 4(3) of the Statutory Accident Benefits Schedule (SABS) infringed the Human Rights Code on the ground of sex/pregnancy, as her income was reduced during her maternity leave.

The Adjudicator agreed that s. 4(3) had a discriminatory effect but found that the Tribunal lacked the jurisdiction to amend or read in language to the Schedule to craft the remedy sought by the applicant.

The Adjudicator determined the quantum of the IRB based on the applicant's 2016 tax return without deducting the capital cost allowance (CCA), as the current SABS does not mandate such a deduction.

The applicant's claim for an award under O. Reg 664 was dismissed, but interest on overdue benefits was awarded.

The defendant owner moved under s. 44(2) of the Construction Act to vacate a $2.14 million construction lien by paying a reduced amount into court.

The plaintiff contractor opposed and cross-moved for leave to register a certificate of pending litigation (CPL).

The court allowed the defendant's motion, finding that the plaintiff's claims for contractual interest and delay damages were not lienable, and set the security amount at $1,046,647.52 based on the plaintiff's admissions.

The cross-motion for a CPL was dismissed because the Construction Act provides a complete code for lien claims, conferring no separate interest in land, and the plaintiff failed to include a claim for a CPL in its statement of claim.

The plaintiffs brought a motion to amend the Trial Record to remove the defendants' Amended Statement of Defence, and a motion to set aside a previous consent order dismissing the action against their own insurer, The Co-Operators.

The defendants brought a cross-motion for leave to amend their statement of defence to plead 'inevitable accident' due to a brain tumour.

The court granted the defendants' motion to amend, finding no non-compensable prejudice to the plaintiffs.

The court dismissed the plaintiffs' motion to amend the Trial Record and their motion to set aside the consent order, finding no material change in circumstances or mutual mistake that would justify setting aside the final order.

The moving party defendants, who were directors of the corporate defendants, brought a motion to strike the plaintiffs' claim against them for disclosing no reasonable cause of action.

The plaintiffs, who sold their family farm to the corporate defendants and were left with worthless preference shares following insolvency proceedings, alleged the directors acted oppressively and sought personal liability under s. 241 of the Canada Business Corporations Act.

The court found that the plaintiffs' amended statement of claim sufficiently pleaded facts that, if proven, could support a finding of oppression and personal liability against the directors.

The motion to strike was dismissed.

This decision addresses a costs endorsement following the dismissal of the plaintiff's motion to strike a jury notice as premature.

The parties had initially agreed to partial indemnity costs for the motion, but the defendant, having successfully opposed the motion, sought substantial indemnity costs.

The court considered the defendant's offers to settle, noting they did not trigger Rule 49 consequences.

Despite the defendant's success, the court declined to award substantial indemnity costs, finding the plaintiff's refusal of the offers was not unreasonable given the rapidly evolving legal landscape concerning jury trials during the COVID-19 pandemic and the defendant's shifting position.

Partial indemnity costs of $4,000 were awarded to the defendant.

The plaintiff brought a motion to strike the defendant's jury notice due to the suspension of civil jury trials in Ottawa caused by the COVID-19 pandemic.

The plaintiff argued that the delay in obtaining a jury trial date caused her financial prejudice under the Insurance Act.

The court found the motion premature because the parties were not yet ready for trial, requiring updated medical and actuarial reports.

The motion was dismissed without prejudice to the plaintiff's right to bring a similar motion once the action was trial-ready.

The plaintiff, Ocean Dredging DM Inc., brought a motion for an interlocutory injunction to prevent the defendant, Kehoe Marine Construction Ltd., from breaching a Memorandum of Understanding (MOU) and to compel the defendant to negotiate subcontracts for a marine dredging project.

The court found that the relief sought was mandatory in nature, requiring a strong prima facie case.

The court dismissed the motion, concluding that the MOU was an agreement to negotiate with many outstanding terms, the plaintiff failed to demonstrate irreparable harm, and the balance of convenience favoured the defendant.

The individual defendants brought a motion to strike claims against them, arguing that the plaintiff's amendment to its statement of claim improperly withdrew an admission regarding the timing of alleged conduct, and that the claim failed to plead the required particulars for negligent misrepresentation.

The court held that the dates provided in the plaintiff's response to a demand for particulars were factual pleadings, not deliberate admissions, and could be amended without leave.

However, the court found that the plaintiff failed to plead the essential elements of negligent misrepresentation against the individual defendants.

The negligent misrepresentation claim was struck.

The appellants appealed a trial decision dismissing their claim for adverse possession of a small area of land surrounding an outhouse on their neighbours' property, and awarding them $15,000 in nominal compensatory and punitive damages for the destruction of the outhouse and loss of use of their cottage.

The respondents cross-appealed the damages awards.

The Court of Appeal dismissed both the appeal and cross-appeal, finding no palpable and overriding error in the trial judge's conclusion that the outhouse was placed with permission, which defeated the adverse possession claim.

The Court also upheld the nominal damages awards, finding them to be a rational response to the evidentiary difficulties in assessing damages and the respondent's high-handed misconduct.

The parties appeared to settle the form of a judgment and verify compliance with preconditions to enforcement set out in a previous decision.

The preconditions required the plaintiff to provide certain corporate records and proof of share ownership to the defendant.

Due to the defendant's geographical and communication difficulties in China, the court settled the form of the judgment but deferred ruling on whether the preconditions had been met, allowing the defendant 30 days to review the evidence with counsel.

The plaintiff brought an action to enforce a promissory note for USD $200,000 against the defendant.

The defendant counterclaimed for rescission of the note and damages for mismanagement of a corporation they co-founded.

The court found the promissory note to be valid and enforceable, rejecting the defendant's claims of duress and mistake.

The counterclaim was largely dismissed due to a binding arbitration clause and lack of jurisdiction over the foreign corporation, but the court stayed enforcement of the judgment until the plaintiff produced certain corporate records to the defendant.

The defendant brought motions for leave to amend his counterclaim to add a claim for misappropriation of founder shares, for substituted service, and for document production.

The court dismissed the motion to amend, finding the defendant lacked standing to assert a claim on behalf of his nominee corporation and that the dispute was subject to an international arbitration agreement.

The request for substituted service was also dismissed due to a lack of evidence of impracticability.

However, the court ordered the plaintiff to produce relevant corporate documents within his power.

The appellant appealed a partial summary judgment granted by the motion judge in a rear-end motor vehicle collision case that occurred on an icy road during freezing rain.

The appellant argued that the motion judge applied the wrong test and failed to address the alleged contributory negligence of the respondent, contending that the respondent should not have stopped on the highway.

The Court of Appeal dismissed the appeal, finding no palpable or overriding error and confirming that the motion judge correctly applied the summary judgment test.

The court upheld the finding that the respondent did not act negligently in stopping her vehicle given the road conditions and visibility issues.

This decision addresses the costs arising from a successful summary judgment motion brought by the defendants Nisco Inc. and HVL Ltd. against the plaintiffs.

Nisco had provided financing for a tow truck to Mark Pittuck, who was later seriously injured due to equipment failure.

Nisco's motion for summary judgment was granted, dismissing the plaintiffs' action against it.

Nisco sought costs on a full indemnity basis, citing an indemnity clause in the lease agreement and an offer to settle.

The plaintiffs argued for lower costs, emphasizing their impecuniosity and the absence of reprehensible conduct.

The court, applying Rule 57 of the Rules of Civil Procedure, awarded Nisco $15,000 for the summary motion, $5,000 for costs in the actions, and $5,000 for disbursements against the main plaintiffs, and $4,000 against Sandy Tennant, considering the complexity, importance, and reasonable expectations of the losing party, as well as the plaintiffs' impecuniosity.

The appellants appealed an order finding that a trail across their land was an 'access road' under the Road Access Act and refusing to order it closed.

The Divisional Court dismissed the appeal, finding ample evidence that prior owners had permitted the respondent's use of the road to access his landlocked property.

The court also upheld the application judge's discretionary decision to refuse closure and impose conditions, noting the respondent's long-term use and lack of disruption to the appellants.