Susan Zakaryan

The Court of Appeal for Ontario quashed the appeal of Michael Paul Duffy, finding that the order under appeal was interlocutory rather than final.

The order in question enforced a right of first refusal for the sale of the matrimonial home, as previously agreed in a consent order.

The court held that the order did not determine the substantive rights of the parties but merely implemented the final consent order, and thus an appeal lay to the Divisional Court with leave, not to the Court of Appeal.

Costs were awarded to Leona Duffy.

The appellant appealed an order requiring him to execute a standard form mutual release with a "no claims over" clause, stemming from a 2017 settlement agreement.

The appellant argued procedural errors (motion under r. 49.09), limitation period expiry, and the overbreadth of the release form.

The Court of Appeal affirmed that while r. 49.09 was inapplicable, the motion was properly brought to enforce a settlement in an ongoing action, and no limitation period had expired as the claim arose when the appellant refused to sign.

However, the court found the motion judge erred in not prescribing the specific form of release.

The appeal was allowed in part, directing the appellant to sign a release including a "no claims over" clause but without an indemnity for its breach, and requiring the attachment of a specific undertaking.

The moving party, Peter Grivogiannis, sought a permanent stay of a third-party claim brought by Pamela Downward, or in the alternative, an order for discovery from Rajan Kaushal.

The motion was based on the alleged non-disclosure of a settlement between Pamela Downward and Rajan Kaushal in the third-party claim.

The court dismissed the motion, finding that the settlement did not significantly alter the litigation landscape and that the non-disclosure was due to inadvertence rather than a deliberate attempt to mislead.

The plaintiffs sought summary judgment to recognize and enforce a U.S. default judgment in Ontario against the defendants for copyright and trademark infringement and unfair competition.

The defendants challenged the U.S. court's jurisdiction, alleged fraud, and claimed a denial of natural justice due to improper service.

The Ontario Superior Court found that the U.S. court properly exercised jurisdiction based on a 'real and substantial connection' to Virginia, dismissed the fraud defense, and confirmed proper service.

The court granted summary judgment, enforcing both the monetary damages and the permanent injunction from the U.S. judgment.

The respondent brought a motion for security for costs against the applicant corporation under Rule 56.01(1)(d) of the Rules of Civil Procedure.

The court found that the applicant had ceased operations and had no assets in Ontario, satisfying the initial burden on the respondent.

The applicant failed to provide sufficient evidence of its assets or impecuniosity, particularly regarding access to funds through its shareholders, which is a high evidentiary threshold for corporate plaintiffs.

The court exercised its discretion, finding it just to order security for costs given the high probability that the respondent would be unable to collect costs if successful at trial.

The motion was granted, and the applicant was ordered to post $32,500 in security for costs and pay $7,500 in costs for the motion.

The moving party sought to set aside a registrar’s default judgment obtained by a bank arising from a corporate lease financing arrangement and a personal guarantee.

The court first considered whether the default judgment was an irregularity under Rule 19.08(1) of the Rules of Civil Procedure and concluded that the claim had been properly served and sufficiently particularized.

Applying the five‑factor test from appellate authority governing the setting aside of default judgments, the court found that although the motion was not brought with unexplained delay, the moving party had no arguable defence on the merits.

The corporate borrower had ceased operations and the guarantor had defaulted under a personal guarantee securing the company’s obligations.

Given the absence of a defence and the prejudice to the lender caused by ongoing storage costs for repossessed equipment, the court declined to set aside the default judgment.

The appellant general contractor appealed a trial judgment allowing part of the respondent subcontractor's construction lien claim.

The appellant argued the trial judge erred in denying a credit for PST, in his treatment of extras and back charges, and in treating the owner's legal costs as a costs issue rather than a charge back under the subcontract.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings and agreeing that equitable estoppel applied to the PST issue and that the legal costs were properly treated as a costs matter.

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.

Following the dismissal of an application for relief from forfeiture, the court addressed the issue of costs.

Both parties agreed that the respondent, as the successful party, should receive costs, but disagreed on the appropriate quantum.

Applying the principles under s. 131(1) of the Courts of Justice Act and Rule 57.01(1) of the Rules of Civil Procedure, the court considered fairness and reasonableness in light of the matter’s limited complexity and the involvement of junior counsel for the respondent.

The court declined to award substantial indemnity costs and instead fixed partial indemnity costs at an amount between the parties’ proposed figures.

Costs of $3,200 inclusive were awarded to the respondent, payable within 30 days.

The appellants appealed a decision of the Superior Court of Justice.

The Court of Appeal found that the motions judge's reasons were inadequate to determine the Limitations Act issue.

However, the Court dismissed the appeal on the basis that the action was misconceived, as it had to be brought as a derivative action and no leave was obtained.

A commercial tenant applied for relief from forfeiture after being locked out of leased premises for non‑payment of rent.

The court considered the criteria governing relief from forfeiture under the Commercial Tenancies Act, including the conduct of the tenant, whether the forfeiture was primarily to secure payment of money, and the proportionality between the value of the lease and the harm caused by the breaches.

The evidence showed persistent late payment of rent, failure to comply with lease requirements, interference with other tenants, and the tenant’s self‑help re‑entry after the landlord changed the locks.

The court held that the tenant’s conduct and multiple breaches weighed against equitable relief.

Relief from forfeiture was therefore denied.