Sidney N. Lederman

The Lawyers (Evan L. Tingley and Baldwin Sennecke Halman LLP) were successful in their motion to strike out the Statement of Claim and dismiss the action against them.

They sought costs on a substantial indemnity scale ($7,412.33) or, alternatively, partial indemnity ($5,244.12).

The court found the plaintiff's allegations of breach of trust against the Lawyers lacked factual foundation and were vexatious.

However, considering the plaintiff was represented by an agent, not counsel, and the agent had a good faith basis for some allegations, substantial indemnity costs were deemed inappropriate.

The court awarded partial indemnity costs of $4,000, all inclusive, payable by the plaintiff within 30 days.

The Lawyers' request for personal costs against the plaintiff's agent, J. Brad Maher, for prejudicing or delaying the action was dismissed due to insufficient evidence of significant prejudice or delay.

The plaintiffs, Mi5 Print & Digital Communications Inc. and 2214264 Ontario Inc., sought an interlocutory injunction against their former key employee, Craig Larmer, and other defendants for breach of fiduciary duties, misappropriation of confidential information, and solicitation of clients.

Larmer, a Vice-President, abruptly resigned and diverted Mi5's clients to his wife's reactivated business, LCS Imaging, and other defendants (Pyxalis Inc., Ronald Morgan, Barrie Williams, and Marvin Foy Marketing Incorporated).

The court applied the three-part test for interlocutory injunctions, finding a strong prima facie case against Larmer due to his fiduciary role and clandestine pre-resignation activities.

The Pyxalis defendants were found to have knowingly assisted Larmer.

The court also found irreparable harm due to the difficulty in quantifying loss of goodwill and damaged client relationships, and that the balance of convenience favored granting the injunction to restore fairness.

An interim interlocutory injunction was granted for one year, restraining the defendants from engaging in new activities with the specified clients, subject to existing contracts, and requiring strict accounting.

The plaintiff moved for summary judgment alleging wrongful dismissal and breach of contract, arguing her employment was for a fixed term of one year.

The defendant contended it was an indefinite term.

The court found the employment contract, comprising an email and an attached agreement, clearly established a one-year fixed term.

Consequently, the plaintiff was entitled to damages for the unexpired term without mitigation.

The motion for summary judgment was granted.

The applicant, a former business seller, sought relief against the respondents for fraudulent conveyance and oppression.

The original purchaser (216) defaulted on payments, leading to a default judgment against it.

Subsequently, the principal of 216, through his wife (Hee Kyung Shin), incorporated a new company (222) which took over the business and assets from 216 without consideration, while 216 was stripped of value.

The court found several "badges of fraud" surrounding the transfer of the business, indicating an intent to defraud creditors.

The court also determined that the actions of the officers and directors of 216 and 222 were oppressive and unfairly prejudiced the applicant as a creditor.

Prodensa, a Mexican corporation and defendant by counterclaim, moved to stay the counterclaim against it, arguing lack of jurisdiction, forum non conveniens, or the existence of an arbitration agreement.

The counterclaim, brought by Ontario-based Advantage, alleged torts of fraudulent misrepresentation and conversion related to equipment and funds in Mexico, stemming from a "shelter services" arrangement.

The court found jurisdiction simpliciter based on the tort of fraudulent misrepresentation, which was deemed to have occurred in Ontario where the false information was received and relied upon.

Additionally, the court found a contract (Memorandum of Understanding) connected with the dispute was made in Ontario.

The court dismissed the forum non conveniens argument, emphasizing the inter-relatedness of the counterclaim with the main action and the risk of conflicting judgments.

Finally, it was determined that no valid arbitration agreement governed the parties' relationship.

The motion was dismissed.

This case concerned the validity of a will dated May 21, 2012, which significantly altered the deceased's estate plan from a prior 1999 will.

The applicant, named executor in the new will, sought to propound it.

The respondent, sole beneficiary of the 1999 will, opposed, alleging suspicious circumstances, lack of testamentary capacity, and lack of knowledge and approval.

The court found numerous suspicious circumstances, including the deceased's questionable mental capacity at the time, the absence of a capacity assessment, and the radical change in beneficiaries without clear rationale.

The applicant failed to discharge the burden of proving testamentary capacity and knowledge and approval.

Consequently, the May 21, 2012 will was not admitted to probate, and the application was dismissed.

Following a successful summary judgment motion, the plaintiff sought substantial indemnity costs.

The defendants challenged the plaintiff's bill of costs, arguing for a reduction and a split between partial and substantial indemnity scales, particularly for the pre-summary judgment stages.

The court, considering the defendants' serious misconduct and scurrilous attack on the plaintiff's reputation, awarded substantial indemnity costs throughout the proceeding.

However, the total amount was reduced from the plaintiff's requested $109,122.98 to $90,000, inclusive of disbursements and taxes, payable by the media defendants.

The applicant, having been successful in a prior application concerning solicitor's fees, sought costs on a full indemnity basis.

The respondent solicitor acknowledged the applicant's entitlement to costs but disputed the quantum, arguing the matter was uncomplicated and counsel's hours excessive.

The court agreed the matter was not complex and found the solicitor's interpretation of the retainer agreement regarding fees to be unconscionable.

Considering the principles of proportionality and that counsel's hours were somewhat excessive, the court awarded costs of $38,000 inclusive of disbursements and taxes on an elevated scale, to be paid by the respondent within 30 days.

The defendants, Pfizer, brought a motion under Rule 21.01(1)(b) to strike various claims in the plaintiff Apotex Inc.'s Amended Statement of Claim.

Apotex sought relief for being kept out of the market by Pfizer's invalid patent for Viagra, asserting statutory claims under the Patented Medicines (Notice of Compliance) Regulations, Statutes of Monopolies, and Trade-marks Act, and common law claims for unjust enrichment, nuisance, Ashby v. White, and conspiracy.

The court struck the claims under s. 8 of the PMNOC Regulations and the independent cause of action based on Ashby v. White, finding that the statutory conditions for PMNOC damages were not met and Ashby v. White is a principle, not a cause of action.

However, the court dismissed Pfizer's motion to strike the claims under the Trade-marks Act, unjust enrichment, nuisance, and conspiracy, rejecting the 'complete code theory' as insufficiently settled for a preliminary stage motion and finding the pleadings for these claims to disclose a reasonable cause of action.

The plaintiff, Hercules Moulded Products Inc., and the defendant, Stewart Title Guaranty Company, brought cross-motions for summary judgment regarding coverage under a commercial title insurance policy.

Hercules sought to recover losses related to a municipal by-law violation (dirty yard), development agreements, and an alleged building encroachment on two properties.

Stewart Title sought summary dismissal, arguing no coverage or applicable exclusions.

The court found no coverage for the by-law violation due to the work order being issued post-policy and the plaintiff's failure to disclose known issues.

It also found no actual loss demonstrated from the development agreements or the alleged encroachment, and that exclusions applied due to the plaintiff's knowledge and failure to provide timely notice.

The plaintiff's motion was dismissed, and Stewart Title's motion for summary dismissal was granted.

The plaintiff, Senator Tobias Enverga Jr., brought a motion for summary judgment against Balita Newspaper, Balita Media Inc., and Tess Cusipag for defamation.

The defamatory publications, including an article and Facebook posts, accused Senator Enverga of criminal fraud, being a "biological liar" and "pathological liar," and misrepresenting the charitable status of his foundation.

The court found the words defamatory and dismissed the defendants' defences of justification and fair comment, as they failed to prove the truth of the allegations and conducted no independent investigation.

The court awarded the plaintiff $150,000 in general and aggravated damages, $100,000 in punitive damages, and issued a permanent injunction against the defendants to prevent further defamatory publications, citing their malicious conduct and refusal to retract or apologize.

The Aubrey Dan Family Trust (ADFT) brought a summary judgment motion to allow its income tax appeal for the 2007 taxation year and vacate a reassessment issued by the Minister of Finance.

The motion focused on whether the reassessment was issued outside the statutory limitation period and, if so, whether the limitation period was properly waived.

The court found that the original notice of assessment triggered the normal reassessment period, which expired before the reassessment was issued.

However, the court also found that the T2029 waiver form signed by ADFT was valid under the Ontario Income Tax Act, deeming it a prescribed form and thus effectively waiving the limitation period.

Consequently, ADFT's motion for summary judgment was dismissed.

The plaintiff sought partial indemnity costs following its substantial success on a motion for an interlocutory injunction.

The defendants argued the plaintiff achieved only limited success and that the motion could have been avoided if the plaintiff's initial notice of motion had been narrower.

The court found the plaintiff was substantially successful on the core issue of the confidentiality of the Diagnosis Database, which was the focus of the motion.

While acknowledging some unnecessary evidence adduced by the plaintiff, the court awarded the plaintiff partial indemnity costs, reduced from the amount sought, taking into account the factors under Rule 57.01(1).

The plaintiffs, having been successful on an underlying motion, sought $156,437.17 in costs.

The defendants, who were the moving parties on the underlying motion, argued for costs not exceeding $10,000.

The court considered the complexity and duration of the motion, the defendants' adjournment requests, their continuation of the motion to strike conspiracy claims despite decisive authority, and the plaintiffs' offer to settle.

The court found the plaintiffs' requested amount to be extraordinary and disproportionate to the nature of the pleadings motion, which was decided on written submissions.

Comparing to similar cases where costs ranged from $3,300 to $10,000, the court fixed the plaintiffs' costs at $9,000, including a $1,000 discount for the defendants' reasonable expense in responding to the plaintiffs' overreaching demand.

The plaintiffs' offer to settle was not considered a real compromise under Rule 49.13.

A snow removal contractor brought a motion for summary judgment dismissing a personal injury slip-and-fall claim and related cross-claims.

The plaintiff filed no responding evidence and did not appear on the motion.

The court held that the absence of any admissible evidence regarding the fall, injuries, or sidewalk condition meant there was no genuine issue requiring a trial as against the contractor, and the claim against it was dismissed.

However, the municipality’s cross-claim for contribution and indemnity raised unresolved factual issues, including the interpretation of meteorological evidence and whether contractual snow-removal obligations were met.

Those issues required expert evidence and were determined to be genuine issues for trial.

A former long-term warehouse employee brought a motion for summary judgment seeking damages for wrongful dismissal equivalent to 22 months’ reasonable notice.

The employer argued that summary judgment was inappropriate due to mitigation issues and that the reasonable notice period should be significantly shorter.

The court held that the mitigation issue could be determined on the record and that the employer failed to demonstrate the employee had failed to mitigate.

Applying the Bardal factors, including the employee’s age, long service, and compensation level, the court fixed the reasonable notice period at 22 months.

The court ordered payment of damages using a trust and accounting mechanism for the balance of the notice period to account for potential mitigation income.

The plaintiff brought a motion for summary judgment seeking repayment of a $400,000 loan advanced for the production of a film.

The borrower and guarantor argued that a separate agreement governing distribution of film revenues subordinated repayment of the loan until other liabilities were satisfied and effectively transformed the loan into a risk investment.

The court held that the loan agreement and promissory note clearly provided that the loan was payable on demand and were not modified by the revenue-sharing agreement.

The defendants’ interpretation would contradict the express contractual language and render the loan agreement meaningless.

Summary judgment was granted for the full loan amount plus interest.

The plaintiffs brought an action alleging solicitor negligence arising from a share purchase transaction involving a property previously used as a gas station.

The solicitor defendants admitted a breach of duty for failing to disclose the property's prior use but sought summary dismissal on the basis that the claim was statute‑barred under the Limitations Act.

The court held that reasonable discoverability arose when a prospective purchaser abandoned a resale transaction due to contamination concerns, triggering the two‑year limitation period.

Because the action was commenced after the limitation period expired, the claim against those defendants was dismissed.

Claims against other lawyer defendants raised genuine issues of fact regarding the scope of retainer and limitation warnings and were permitted to proceed to trial.

Family members of a deceased victim brought a claim under s. 61 of the Family Law Act alleging that police breached a duty of care by failing to arrest an intoxicated offender with a known history of violence who later killed the victim.

The defendant moved under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike the statement of claim on the basis that police owed no private law duty of care to the deceased or his relatives.

The court held that plaintiffs bringing derivative claims under s. 61 need only establish that a duty of care was owed to the deceased, not directly to the relatives.

Applying the Cooper-Anns framework, the court concluded it was not plain and obvious that foreseeability and proximity could not be established based on the pleaded facts, including the police's alleged knowledge of the offender’s past violence against the victim and their shared residence.

Residual policy considerations did not clearly negate a prima facie duty of care at the pleadings stage.

The defendant insurer brought a motion to dismiss an indemnification action brought by another insurer arising from a motor vehicle accident involving insured property.

The plaintiff insurer had denied coverage to its insured and was later found liable in separate litigation, after which it sought statutory indemnity from the other insurer whose insured driver was allegedly at fault.

The court considered whether the claim for contribution and indemnity was barred under s. 18 of the Limitations Act, 2002.

The court held that the plaintiff insurer was an alleged wrongdoer in the underlying action and that its indemnity claim fell within the contribution and indemnity regime governed by s. 18.

Because the plaintiff did not bring a third-party claim or otherwise commence its indemnity claim within two years of being served with the original statement of claim, the action was statute-barred.