Sidney N. Lederman

The plaintiff's action was dismissed for delay by the Registrar.

The Master set aside the dismissal, finding the delay was inadvertent and there was no actual prejudice to the defendants.

On appeal, the Superior Court judge reinstated the dismissal, finding the Master misapprehended the evidence and failed to consider the public interest in finality.

The Court of Appeal allowed the plaintiff's appeal and reinstated the Master's order, holding that the Master's discretionary decision was entitled to significant deference and his findings were reasonable.

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.

The defendants appealed a Master's order dismissing their motion to sever the claims of two plaintiffs who alleged sexual misconduct against their deceased family physician.

The Master had dismissed the motion primarily because it was brought at a late stage in the litigation, after discoveries were completed and the action was set down for trial.

The Superior Court of Justice dismissed the appeal, finding that the Master made no error of law and reasonably exercised her discretion in concluding that the conduct of the trial, including rulings on the admissibility of similar fact evidence, should be left to the trial judge.

A corporation sought an order under the Solicitors Act referring a law firm’s legal accounts to assessment.

The corporation had indemnified a former executive for defence costs in regulatory proceedings and had paid most of the law firm’s accounts over a two‑and‑a‑half‑year period.

The court held that accounts paid more than twelve months before the application were final accounts and therefore statute‑barred from assessment absent fraud or misconduct.

Accounts paid within twelve months were not subject to assessment because the applicant failed to establish “special circumstances.” However, three recent unpaid accounts were referred to assessment as it was just and equitable given the breakdown in the parties’ relationship.

The plaintiffs appealed an order of a case management master requiring them to post additional security for costs in complex civil litigation.

The plaintiffs were non-residents of Ontario and did not claim impecuniosity, but argued that the strength of their claims justified denying security for costs.

The court held that the master applied the wrong legal standard by requiring the plaintiffs to show an "overwhelming likelihood of success" rather than the correct standard of a "good chance of success" when assessing the merits under Rule 56.01 of the Rules of Civil Procedure.

Because this constituted an error of law, the appeal was allowed in part and the matter was remitted to the case management master for reconsideration using the proper standard.

Costs decision following a summary judgment motion where both sides achieved partial success.

The defendant obtained orders striking the personal plaintiff’s claim and a claim for damages for improvident sale.

However, the corporate plaintiff succeeded on the primary issue concerning the mortgagee in possession’s responsibility to insure the corporate plaintiff’s interest.

Applying the factors under Rule 57.01 of the Rules of Civil Procedure, the court held that the corporate plaintiff should receive reduced costs to reflect the divided success.

The applicant sought judicial review of an Ontario Securities Commission decision dismissing its application to review an IIROC Hearing Panel's refusal to stay proceedings.

The applicant argued that IIROC lacked jurisdiction and could not provide procedural fairness because it lacked the power to compel non-member witnesses, which would prevent the applicant from making full answer and defence.

The Divisional Court dismissed the application, finding that the Commission reasonably concluded the stay motion was premature, as any prejudice regarding missing evidence is best assessed during the hearing on the merits.

The applicant union sought judicial review of an arbitration award that dismissed five individual grievances concerning post-age 65 retirement benefits.

The arbitrator had upheld the employer's preliminary objection, finding that the issues had already been decided in a prior policy grievance arbitration and were barred by res judicata, issue estoppel, and abuse of process.

The union argued the arbitrator failed to address its new arguments regarding age discrimination under the Human Rights Code.

The Divisional Court dismissed the application, holding that the arbitrator's application of res judicata and abuse of process was reasonable, as the union could have raised the human rights arguments during the initial policy grievance.

Following summary judgment in an employment dispute, the parties disagreed on the proper calculation of mitigation income to deduct from the damages award.

The moving party sought clarification that mitigation should be calculated using net income rather than gross revenue from subsequent earnings.

The responding party argued that the issue had not been raised during the summary judgment motion and could not be altered through a clarification request.

The court held that the question involved new factual and legal determinations and could not be resolved as a simple clarification of the judgment.

The issue was reopened and directed to proceed by motion with supporting evidence and cross-examination.

The Commissioner of Competition sought declaratory and remedial relief under s. 74.01(1)(a) of the Competition Act for a deceptive marketing scheme involving unsolicited faxes and websites designed to mimic a well‑known business directory provider.

The respondents’ materials suggested recipients were updating existing listings while the fine print created binding two‑year contracts for directory services.

The court found the representations materially false or misleading and concluded the scheme deceived thousands of Canadian businesses and organizations.

The court declared the conduct reviewable under the Competition Act, voided the contracts, ordered restitution to affected customers, imposed corrective notice requirements, and issued a ten‑year prohibition order.

Administrative monetary penalties totaling $8 million against corporate respondents and additional penalties against individual respondents were imposed.

On a defendant mortgagee's summary judgment motion, the court considered whether a mortgagee in possession owed and breached a duty to act prudently regarding insurance of the mortgagor's property interest after cancellation of coverage.

The record contained material conflicts on notice of cancellation, communications between agents, and whether reliance on the mortgagee's blanket insurance could reasonably be inferred, requiring credibility assessments not suitable for summary judgment.

Applying summary judgment principles, the court held that genuine issues requiring a trial remained on duty, breach, causation, and damages, including potential accounting issues tied to any insurance recovery.

The court granted limited summary judgment only to strike the personal plaintiff's claim and the improvident sale allegation, and otherwise dismissed the motion.

The appellant municipality appealed a decision of the Ontario Energy Board declining to review its previous decision that allowed a wind energy company to build distribution facilities on municipal road allowances.

The municipality argued the Board erred in interpreting its review power too narrowly and that the presence of an original panel member on the review panel created a reasonable apprehension of bias.

The Divisional Court dismissed the appeal, finding the Board's interpretation of its review rules was reasonable and that the participation of an original member in a reconsideration process does not raise a reasonable apprehension of bias.

The appellant appealed a decision dismissing his motion to vary a final child support order.

He argued the motion judge failed to consider evidence of a material change in circumstances, erred in allowing the respondent to amend her pleadings to seek a non-dissipation order for the children's RESPs, and demonstrated bias.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's factual findings, no prejudice from the pleading amendment, and no basis for the bias claim.

The plaintiff sought interim and interlocutory injunctions restraining the defendant from continuing an alleged trespass and requiring removal of construction equipment, fencing, refuse bins, and a large stockpile of topsoil from its property.

The dispute arose from a development arrangement where the defendant was permitted under a letter agreement to operate a sales or construction trailer on a commercial block pending reconveyance.

The defendant argued the provision created a lease granting broader rights of occupation, or alternatively that any misuse constituted only a breach of contract.

The court held the agreement granted only a limited licence to place and operate a trailer and did not confer exclusive possession or a leasehold interest.

The defendant’s additional uses constituted deliberate and continuing trespass warranting injunctive relief, and the RJR‑MacDonald test was satisfied in any event.

The plaintiff brought a summary judgment motion in a wrongful dismissal action following the closure of the defendant’s manufacturing operations.

The court considered the appropriate reasonable notice period, whether overtime should be included in calculating damages, the compensability of lost employment benefits, and whether mitigation income earned during the statutory notice period under the Employment Standards Act should reduce common law damages.

Applying the Bardal factors, the court determined that a 20‑month notice period was appropriate.

The court held that overtime formed an integral component of the employee’s compensation and must be included in damages, and that the employee was entitled to compensation for lost benefits.

Mitigation income earned during the statutory ESA notice period was not deductible from damages beyond ESA minimum entitlements.

The plaintiff, having been successful on an appeal from a Master's decision, sought costs of the appeal on a substantial or full indemnity scale, arguing the appeal was spurious.

The court found no basis for an elevated scale of costs, noting the defendants had a right to appeal and the single legal issue was not complex.

Costs were fixed at $4,500 on a partial indemnity scale, having regard to the principle of proportionality.

Following the dismissal of the moving party's motions for leave to appeal and for a stay, the successful responding parties sought their costs on a partial indemnity basis.

The moving party failed to provide any costs submissions.

The court considered the principle of proportionality and the moving party's conduct which thwarted the bankruptcy trustee's mandate.

Costs were fixed at $20,000 for the trustee and $7,323.41 for the applicants, payable by the moving party.