Sidney N. Lederman

An insurer appealed an arbitrator’s refusal to dismiss a statutory loss transfer application brought approximately 11 years after a motor vehicle accident.

The court held that the application was not barred by the two‑year limitation period under s. 5(1)(b) of the Limitations Act, 2002 because the limitation period runs from the day after a first‑party insurer requests indemnity from the second‑party insurer.

However, the court found that the equitable doctrine of laches can apply to delayed statutory loss transfer claims where the scheme possesses an equitable character.

The court further held that acquiescence constitutes a stand‑alone branch of laches and does not require proof of prejudice.

The first‑party insurer’s lengthy and unexplained delay, combined with knowledge of its claim, amounted to acquiescence and barred the loss transfer claim.

The defendants brought motions under Rule 21.01 to strike statements of claim in two actions commenced by the plaintiff.

The claims sought damages for emotional distress and relief removing a writ of seizure and sale, while repeating allegations relating to a partnership dispute previously litigated in Small Claims Court and upheld on appeal to the Divisional Court.

The court held that the plaintiff’s new actions raised the same issues or matters that could have been addressed in the earlier proceeding.

The claims constituted an impermissible collateral attack on the prior judgments and an abuse of process.

Both actions were dismissed and costs awarded to the defendants.

The plaintiff sought return of a commercial lease deposit after an agreement to lease premises for a spa/fitness centre failed because the proposed use, which included massage services, was not permitted under existing zoning.

The lease contained a condition requiring the tenant to obtain the necessary licence within four months.

The court held that the intended use included massage services and therefore required a holistic centre licence, which could not be obtained because zoning did not permit that use at the relevant time.

The landlord had warranted zoning compliance and was therefore in breach when the agreement was executed.

The court rejected arguments that the tenant misrepresented the intended use, waived the condition, or was estopped from relying on it, and ordered return of the deposit.

Following the dismissal of an application, the successful respondents sought costs on a substantial indemnity basis after being personally named in allegations of bad faith and oppression.

The court considered Rule 57.01(1) of the Rules of Civil Procedure, including proportionality, the seriousness of personal allegations against individual directors, and an earlier settlement proposal that could have resolved the dispute.

Although the applicant had an arguable issue relating to an allegedly undisclosed liability in a condominium status certificate, the court found the litigation strategy unnecessarily complex and disproportionate to the amount at stake.

Balancing these factors, the court declined substantial indemnity but awarded substantial costs reflecting the respondents’ success and the unnecessary allegations.

Costs were fixed at $15,000 payable within 30 days.

The moving parties sought costs following two motions attacking an amended statement of defence and counterclaim.

Success was divided on the motion to strike portions of the defence, resulting in no costs for that motion.

However, the moving parties were completely successful in having the counterclaim struck out, although with leave to amend.

The court considered factors under Rule 57.01(1), including the $4,000,000 damages claim, the respondents’ conduct in ignoring a judicial warning and amending pleadings late while maintaining offending allegations, and reputational implications for the lawyer defendants.

Costs of $5,000 all inclusive were awarded for the successful motion to strike the counterclaim.

The plaintiff and defendants by counterclaim brought a motion to strike portions of an Amended Statement of Defence and Counterclaim on the basis that certain allegations were irrelevant, frivolous, or disclosed no reasonable cause of action.

The court struck paragraphs relating to a separate incident and repetitive descriptions of the parties’ physical attributes.

Allegations concerning the prior relationship between the parties and statements about the plaintiff’s employment with his lawyer were permitted to remain because they responded to issues raised in the statement of claim.

The court held that lawyers acting for a party do not owe a duty of care to opposing parties, and therefore claims against the plaintiff’s counsel and her law firm in their professional capacity could not stand.

The counterclaim was struck out with leave to amend.

The applicant purchaser of a condominium unit sought relief alleging inadequate disclosure in the condominium corporation’s status certificate, arguing that undisclosed imminent roof repairs and expropriation funds rendered a subsequent special assessment inapplicable to its unit.

The corporation had received expropriation proceeds from a TTC project and placed them in the reserve fund to finance roof replacement.

A second special assessment was issued solely as an administrative mechanism to access those reserve funds and provided unit owners with options that resulted in no net financial change.

The court held that the status certificate’s disclosure did not result in prejudice because no increase in common expenses was required from unit owners.

The applicant was treated identically to other owners and suffered no financial disadvantage.

The application was dismissed.

The plaintiff sought specific performance of an agreement of purchase and sale for a gas station property after the vendor forcibly repossessed the property while the purchaser was in possession pending final closing.

The defendant argued the agreement was unenforceable due to misidentification of the vendor, non‑payment of deposits, unpaid supplier accounts, lack of readiness to close, and absence of uniqueness of the property.

The court found the misidentification of the vendor was an inadvertent drafting error, that the plaintiff had substantially paid the required deposits and complied with the agreement, and that the vendor had no justification to retake possession.

The property was sufficiently unique to justify specific performance and the equities favoured the purchaser.

The court ordered specific performance and directed a reference to account for deposits, operating profits, and inventory values prior to closing.

Following a successful summary judgment motion dismissing the action against a hospital in a medical malpractice proceeding, the court addressed costs.

The hospital sought recovery of its costs for both the summary judgment motion and the broader action.

The court considered whether a Bullock or Sanderson order was appropriate and the impact of a co-defendant physician’s refusal to admit a key factual issue relating to nursing care.

Exercising discretion under Rule 57.01(1)(g) of the Rules of Civil Procedure and s.131 of the Courts of Justice Act, the court held that the physician’s refusal to admit the fact necessitated the motion and justified shifting the hospital’s costs to him.

The hospital’s costs were fixed for the motion, the action, and the costs hearing.

The defendant corporation brought a motion for summary judgment dismissing an action for wrongful dismissal arising from the termination of a management consulting agreement.

The defendant alleged that the plaintiff consultant committed a “criminal act of dishonesty” by installing hidden surveillance cameras to intercept private communications at a company property, relying on a prior finding that the conduct breached s. 184(1) of the Criminal Code.

The court held that determining whether the criminal act constituted dishonesty within the contractual clause, and whether the act was intended to result in personal gain at the company’s expense, required a contextual assessment of intent and surrounding corporate conflict.

Given conflicting evidence regarding the plaintiff’s motives and the broader corporate struggle between board factions, the issues were unsuitable for determination on a summary judgment record.

A full trial was required to properly assess credibility and context.

The defendants brought a motion to strike portions of a fresh as amended statement of claim in an employment-related action seeking damages for breach of contract, wrongful dismissal, misrepresentation, quantum meruit, and unjust enrichment.

The court held that the pleading failed to disclose a reasonable cause of action against an individual corporate officer because it did not plead material facts showing independent misconduct separate from the corporation.

The court struck the claims against the individual defendant and dismissed the action as against him.

However, the court found sufficient pleaded facts to support the allegation that two corporate defendants could be treated as common employers.

The claim for unjust enrichment was also struck for failure to plead a tangible benefit retained by the defendants.

The purchaser applied for the return of a $100,000 deposit after refusing to close a residential real estate transaction due to an outstanding building permit on the property.

The vendors obtained a commitment from a title insurer to insure over the open permit and offered to complete the transaction with a holdback pending closure of the permit.

The court held that, under the Agreement of Purchase and Sale, a commitment for title insurance was sufficient to address the requisition regarding the open permit.

The purchaser failed to act in good faith by prematurely abandoning the transaction before the closing deadline and by not pursuing the available title insurance solution.

The purchaser was therefore in breach of the agreement and was not entitled to recover the deposit.

The moving party hospital sought summary judgment dismissing a medical negligence action arising from a post-surgical brain infection allegedly caused by a nurse’s failure to report purulent drainage from a patient’s incision prior to discharge.

The plaintiffs alleged the nurse negligently allowed discharge without informing the treating physician or properly documenting the observation.

The court held that the motion record permitted a full appreciation of the issues and that the circumstantial and usual-practice evidence supported the inference that the nurse had reported the drainage to the physician and complied with the applicable standard of care.

The plaintiffs failed to produce evidence contradicting the nurse’s usual practice or establishing causation between any alleged failure and the injury.

Summary judgment was therefore granted dismissing the claims and cross‑claims against the hospital.

Former franchisees rescinded their franchise agreements under the Arthur Wishart Act after failing to receive a disclosure document.

Following a reference determining the franchisor’s payment obligations under s. 6(6) of the Act, the franchisor defendants moved to oppose confirmation of the Master’s report, challenging awards for inventory, supplies and equipment, the refusal to offset profits earned during operation, and the costs award.

The court applied the deferential standard governing review of a master’s report and held that no error in principle or misapprehension of evidence had been demonstrated.

The court confirmed that payments under s. 6(6)(a)-(c) are independent statutory entitlements and cannot be offset by profits under s. 6(6)(d).

The Master’s findings and costs award were upheld.

The plaintiff sold shares of a real estate brokerage to the defendant purchaser under a share purchase agreement and promissory note for $490,000.

After making several instalment payments, the purchaser stopped paying and alleged numerous misrepresentations and breaches of warranty relating to financial statements, agent rosters, liabilities, and business operations, seeking damages and repayment through a counterclaim.

The court found that the purchaser was a sophisticated businessperson who conducted limited due diligence and knowingly proceeded without contractual protections or price adjustments.

Alleged misrepresentations regarding financial statements, agent numbers, liabilities, and business practices were unsupported, and the purchaser did not rely on them when entering the agreement.

Although the vendor breached the agreement by failing to provide audited financial statements, the breach caused no damage and was effectively waived.

The vendor was therefore entitled to recover the outstanding balance under the promissory note and the counterclaim was dismissed.

Following a successful application under the Competition Act resulting in restitution orders and administrative monetary penalties against multiple respondents, the applicant sought partial indemnity costs of $231,768.35.

One respondent opposed the request, arguing the matter was over-lawyered, that legal research disbursements should be excluded, and that costs should be apportioned based on the relative administrative monetary penalties imposed.

The court accepted that the proceeding was complex and a matter of first impression requiring extensive investigation and research, but found some duplication of work by counsel.

The court reduced the overall fees by 15% while allowing the legal research disbursement.

Costs were ordered jointly and severally against the respondents.

The employee brought a motion for summary judgment seeking a declaration that a termination clause in his employment agreement was void for contracting out of minimum standards under the Employment Standards Act, 2000.

The dispute centered on a provision stating that bonuses would not be included in termination pay calculations except as otherwise agreed or required by statute.

The employee argued the clause unlawfully waived ESA rights contrary to s. 5(1).

The court held the provision, read harmoniously with the clause limiting termination entitlements to ESA minimums, did not contract out of the statute and simply confirmed bonuses would be included where required by law or later agreement.

The motion was dismissed and the action was summarily dismissed.

The realtor defendants brought a motion to dismiss or stay the action as an abuse of process, arguing that all parties had operated under the mistaken belief that the claim against them had been struck following a consent order requiring delivery of an affidavit of documents.

In fact, no formal order dismissing the action had ever been obtained.

The moving parties argued that principles of finality and fairness required that the action be treated as if it had been dismissed and that the delay in pursuing the claim against them justified termination of the proceeding.

The court held that the finality principle applies only where a final order exists and that prejudice cannot be presumed where the action remains valid and subsisting.

Balancing fairness and the absence of demonstrated prejudice, the court permitted the action to continue against the realtor defendants.

Following a wrongful dismissal summary judgment decision, the court determined the remaining issues of pre‑judgment interest and costs.

The defendant argued that pre‑judgment interest was unavailable because it was not awarded in the earlier endorsement, while alternatively seeking calculation on an instalment basis.

The court held that the issue could properly be determined post‑judgment and awarded pre‑judgment interest under the Courts of Justice Act using the lump sum approach because the employee received only a lump sum statutory payment on termination and would have received a lump sum payment in lieu of notice if proper notice had been given.

On costs, although the successful plaintiff sought $17,500 plus disbursements and HST and relied on an offer to settle, the court found the request excessive given the limited procedural steps and brief summary judgment motion.

Costs were fixed at $10,500 all‑inclusive on a partial indemnity basis.

The plaintiff objected to the admissibility of a proposed accounting expert retained by the defendants in a commercial dispute involving alleged irregularities in corporate financial records and the valuation of shares.

The objection was based on allegations that the expert lacked independence due to a professional relationship with a trustee in bankruptcy connected to the underlying corporation and that the expert lacked sufficient expertise in industry standards.

The court considered the effect of Rules 4.1 and 53.03 of the Rules of Civil Procedure and whether those provisions impose a higher duty of independence than at common law.

The court held that alleged institutional bias arising from professional connections generally affects the weight of expert evidence rather than its admissibility.

Finding the expert met the Mohan admissibility criteria and possessed sufficient expertise, the court permitted the expert to testify.