Tanya A. Pagliaroli

This is a medical malpractice action arising from the death of Maria Patria Asajar on January 22, 2014, following alleged misdiagnosis and delay in treatment of an aortic dissection at North York General Hospital.

The plaintiffs brought a motion for a status hearing under Rule 48.14(6) of the Rules of Civil Procedure after the action had not been set down for trial within the prescribed timeframe.

The defendants opposed, arguing the action should be dismissed for delay.

The court found that the plaintiffs provided an acceptable explanation for the delay and that there was no non-compensable prejudice to the defendants.

The action was permitted to proceed with new mediation and trial-setting deadlines.

Two equal 50% shareholders in a lakeside condominium development project in Burlington, Ontario (Nautique Lakefront Residences) sought court guidance on separating their partnership following an acrimonious impasse.

The applicant, an investor providing approximately 90% of equity funding, proposed a court-imposed shotgun buy-sell mechanism.

The respondent proposed a buyout under section 207 of the Business Corporations Act using a valuation report prepared by KSV Soriano Inc. The court found that both parties had engaged in oppressive conduct but determined that separation was necessary to preserve the project.

The court ordered a section 207 buyout by the respondent at a price representing the midpoint between two valuation scenarios, rejecting the shotgun mechanism due to procedural fairness concerns arising from late notice and the respondent's good faith participation in case management conferences.

The court granted the Monitor's application to assign John Aquino into bankruptcy and continued the Mareva order against him.

The decision addresses the requirements for a bankruptcy order under the Bankruptcy and Insolvency Act, the discretion to dismiss or stay such an application, and the standards for continuing a Mareva injunction post-judgment.

The court found that John Aquino had committed an act of bankruptcy, was unable to pay his debts, and that there was no bona fide dispute with the Monitor.

The court also rejected arguments that the application was brought for a collateral purpose and found the continuation of the Mareva order appropriate.

The court granted a bankruptcy order against Thomas Dylan Suitor, finding that the applicant, The Fuller Landau Group Inc. (as Receiver of The Lion’s Share Group Inc.), established the necessary statutory requirements under the Bankruptcy and Insolvency Act.

The court found that Mr. Suitor was personally liable under promissory notes as both borrower and guarantor, that he owed debts exceeding $1,000, and that he had ceased to meet his liabilities generally as they became due.

The court also found the existence of multiple creditors and/or special circumstances justifying the order, and declined to exercise its discretion to refuse the order.

The court considered cross-applications between Michelle Goldstein Zaldin and Seymour Goldstein regarding the enforcement of a shotgun clause in a shareholders’ agreement for their jointly owned insurance and investment businesses.

The court found that a binding agreement was reached for Ms. Zaldin to purchase Mr. Goldstein’s shares, and that Mr. Goldstein’s failure to obtain necessary regulatory approvals constituted a breach that prevented closing.

The court granted specific performance in favour of Ms. Zaldin, declined to imply additional terms into the agreement, and awarded her costs.

The court considered cross-applications between Michelle Goldstein Zaldin and Seymour Goldstein regarding the enforcement of a shotgun clause in a shareholders’ agreement for their jointly owned insurance and investment businesses.

The court found that a binding agreement was reached for Ms. Zaldin to purchase Mr. Goldstein’s shares, and that Mr. Goldstein’s failure to obtain necessary regulatory approvals constituted a breach that prevented closing.

The court granted specific performance in favour of Ms. Zaldin, declined to imply additional terms into the agreement, and awarded her costs.

This is a costs endorsement following a decision where the appeal was allowed in part and the cross-appeal was also allowed.

The appellant Estate succeeded against one of three respondents, while respondent D.O. was completely successful on the cross-appeal, though one aspect was conceded and the other involved a lesser amount.

Given the divided success, the Court of Appeal ordered that each party bear their own costs of the appeal and cross-appeal.

This appeal and cross-appeal arose from a matrimonial dispute concerning financial advances and child support.

The Estate of T.O. (husband) appealed the trial judge's dismissal of a claim for $341,000 in advances to Ridgeway (a corporation indirectly owned by D.O., the wife), arguing the limitation period was misapplied.

D.O. cross-appealed the finding of her liability for a $40,346 advance made by the husband's corporation and a child support calculation error.

The Court of Appeal allowed the Estate's appeal against Ridgeway, finding the 2013 advances were demand loans and thus not statute-barred.

It dismissed the appeal against D.O. and 201.

The cross-appeal was allowed, setting aside D.O.'s liability for the $40,346 advance (as the creditor was a non-party corporation) and correcting the child support calculation.

This is a costs endorsement following an application decision that determined dog ownership.

The court addressed the proportionality of legal costs, noting that both parties incurred excessive fees (over $265,000 collectively) for a non-monetary issue.

Despite the applicant's success in the underlying application, the court found the requested costs disproportionate and awarded partial indemnity costs of $83,570, significantly less than the $129,345.90 partial indemnity sought by the applicant, and less than the respondent's offer to pay for the dog.

The proposed defendants in a medical malpractice action brought a motion to strike a supplementary affidavit sworn by the plaintiffs' lawyer.

The proposed defendants argued the affidavit was an abuse of process, violated rules of professional conduct regarding lawyers acting as witnesses, and constituted improper reply evidence.

The court dismissed the motion, holding that disputes over whether the affidavit attempted to change or repudiate earlier evidence should be determined by the judge hearing the substantive leave motion.

The court also found that Rule 39.02(2) did not preclude the plaintiffs from delivering the supplementary affidavit because they had not cross-examined on an adverse party's affidavit.

The appellant, Aliesha Verma, brought a motion to stay an order of Stewart J. pending appeal to the Court of Appeal for Ontario.

The underlying order declared that a dog, Rocco Jr., was owned by the deceased Leonard Carvalho and formed part of his estate, ordering Ms. Verma to return the dog to the estate trustee.

The motions judge applied the three-part test for a stay from RJR-MacDonald Inc. v. Canada (Attorney General): serious question to be tried, irreparable harm, and balance of convenience.

The court found that the grounds of appeal had little prospect of success, that Ms. Verma failed to establish irreparable harm related to the denial of the stay, and that the balance of convenience favoured the estate trustee due to Ms. Verma's past conduct and social media campaign.

The motion for a stay was dismissed, and costs were awarded to the responding party.

The applicant, Arlete Carvalho, as estate trustee for the deceased Leonard Carvalho, sought a declaration that a dog, Rocco Jr., was owned by the deceased at the time of his death and should be returned to the estate.

The respondent, Aliesha Verma, argued she owned the dog, or it was gifted to her, or that promissory estoppel applied.

The court found that the deceased maintained ownership and control of the dog, and the elements of a valid gift (specifically delivery) were not met.

The promissory estoppel argument also failed due to lack of a clear promise.

The court declared the dog part of the estate and ordered its return to the applicant.

The appellant moved to amend the notice of appeal to clarify that relief is sought against two corporations added as parties below.

The respondent opposed due to late notice.

The Court of Appeal adjourned the appeal and cross-appeal, ordering the motion to amend to be heard in writing with a set schedule for submissions.

Costs were reserved to the disposition of the motion, and the panel remained seized of the motion but not the main appeal.

The applicant, Link 427 General Partnership, sought to enforce an interim arbitral order compelling two non-parties, Fay Marzuq and Melissa Raffoul, to attend examinations for discovery.

The court dismissed the application, holding that an arbitrator lacks jurisdiction over non-parties to an arbitration agreement, and therefore the court would not enforce such an order.

The court also noted, as an alternative reason for dismissal, that the information sought from the non-parties had already been provided.

This is a costs endorsement following an appeal.

The appellant, Felicia Vacaru, was unsuccessful in her appeal.

The respondent, Marmer Penner Inc., was awarded costs on a partial indemnity scale, fixed at $17,500, inclusive of taxes and disbursements.

Felicia Vacaru appealed a trial judgment that found her liable to Marmer Penner Inc. for outstanding forensic accounting fees and dismissed her crossclaim against her former lawyers, Legge & Legge and John Legge, for negligence.

Vacaru also sought to adduce fresh evidence on appeal and leave to appeal costs.

The Court of Appeal dismissed the motion to adduce fresh evidence, finding it inadmissible hearsay or irrelevant, and dismissed both appeals, upholding the trial judge's findings of fact regarding the fee agreement and the dismissal of the negligence crossclaim due to lack of breach of standard of care, causation, and limitation period issues.

Leave to appeal costs was also denied.

The appellant, Dr. Mistry, appealed an Associate Justice's order that granted a motion to add him and Dr. Karmali-Rawji as defendants in a medical malpractice action.

The core issue was whether the claim against Dr. Mistry for delayed diagnosis and failure to refer was statute-barred under the Limitations Act, 2002.

The Master had found the claim was discovered in May 2017 when the plaintiff's counsel reviewed medical records, thus the limitation period had not expired.

Dr. Mistry argued the claim was discoverable earlier, by February 2015.

The court dismissed the appeal, finding no palpable and overriding error in the Master's decision.

It affirmed that the plaintiff, an unsophisticated litigant, and his counsel could not have drawn a plausible inference of liability against Dr. Mistry without the new information from the full medical records, which revealed the spinal lesion was diagnosable earlier.

The defendant lawyer brought a motion for summary judgment to stay the plaintiff's solicitor negligence action as an abuse of process.

The plaintiff sued her former family lawyer, alleging negligence in the negotiation of a separation agreement regarding spousal support, but had not first sought to set aside or vary the agreement under the Family Law Act.

The court granted the motion and stayed the action, holding that a family law litigant must exhaust statutory remedies against their former spouse before pursuing a civil action for damages against their lawyer to avoid circumventing the family law statutory scheme.

The case involved a claim by Scotia Capital Inc. against Aphria Inc. for an "Independence Fee" under an engagement letter for financial advisory services in defending a hostile takeover bid, and a counterclaim by Aphria for defamation related to Scotia's discontinuation of analyst coverage.

The court found that Scotia successfully defended Aphria against the takeover bid, entitling it to the Independence Fee.

The court dismissed Aphria's defense arguments of lack of causality and repudiation.

The court also dismissed Aphria's counterclaim for defamation, finding no evidence that the discontinuation of coverage lowered Aphria's reputation or caused economic loss.

The appellant agreed to sell her home at 45 Moore Avenue, Toronto to the respondents.

Between execution of the Agreement of Purchase and Sale and closing, neighbouring property owners asserted ownership of a two-foot-wide strip of the driveway.

The respondents refused to close, claiming the appellant could not convey clear title to the entire driveway.

The appellant sued for damages; the respondents counterclaimed for return of their deposit.

The motion judge found in favour of the respondents, determining that the APS represented the appellant owned all of what visually appeared to be the functioning private driveway, and that the title defect was significant enough to justify refusing to close.

The appellant appealed, arguing the APS only required sale of a seven-foot-wide driveway (per the 1987 survey) and that any defect was not significant.

The Court of Appeal dismissed the appeal.