Tara L. Lemke

The plaintiff alleged she was sexually assaulted while in the Witness Protection Program and sought damages against Ontario on theories of negligence, breach of fiduciary duty, and breach of contract.

The court found on a balance of probabilities that the sexual assault occurred, but held that the protection team’s private duty of care was limited to protection from the identified outside threat and that no breach of the applicable standard of care was proven, particularly in the absence of expert evidence on the Witness Protection Program standard of care in 1987.

The court further held that legal causation and foreseeability were not established, and rejected the fiduciary and contract claims.

In an alternative assessment, the court would have awarded damages for psychological harm from the assault, but not for COPD, income loss, or housekeeping claims.

The decision addresses two motions in a commercial real estate dispute: a motion to strike claims against individual condominium directors, and a motion for production of documents.

The court struck the claims against the directors but granted the plaintiff leave to amend, finding the pleadings did not sufficiently distinguish the directors’ conduct from that of the corporation.

The court also dismissed the plaintiff’s production motion, holding that privilege over communications with counsel and the property manager was not waived by the addition of the property manager as a third party.

The ruling clarifies the high threshold for personal liability of condominium directors and the scope of privilege in multi-party litigation.

Following a jury trial for damages arising from a motor vehicle collision, the plaintiff sought partial indemnity costs.

The court awarded the plaintiff $275,000 in fees, $100,000 in disbursements, and $30,000 for costs incurred in pursuing a SABS settlement that significantly benefited the defendants.

The court denied the plaintiff's claim for litigation loan interest due to insufficient evidence.

The defendants' request for costs under Rule 49.10(2) was dismissed because the plaintiff's judgment exceeded the defendants' offer.

In this personal injury trial, the plaintiffs sought to have the jury quantify damages for past attendant care and housekeeping.

The court denied this request, ruling that such claims were barred due to the male plaintiff's prior settlement of his Family Law Act claim for services provided to his wife, which would result in impermissible double recovery.

Additionally, the court found there was insufficient evidentiary foundation to put these specific questions to the jury, as the plaintiffs failed to provide adequate evidence regarding the hours of services rendered by third parties or the value of non-monetary compensation, and the proposed methodology of valuing damages based on need rather than services actually received was incorrect in law.

The defendant brought a motion to set the prejudgment interest rate on non-pecuniary damages awarded to the plaintiffs by a jury at 1.3% instead of the prescribed 5%.

The plaintiffs cross-moved, seeking an 8.46% rate for both non-pecuniary and past pecuniary damages.

The court granted the defendant's motion, reducing the prejudgment interest on non-pecuniary damages to 1.3%, citing low prevailing prejudgment interest rates and the future loss component of the award.

The plaintiffs' cross-motion was dismissed, with the court maintaining the default 0.8% rate for past pecuniary damages, rejecting the plaintiffs' arguments for a higher rate based on their investment returns or the defendant's insurer's returns.

The applicant insurer brought an urgent motion to stay a Licence Appeal Tribunal (LAT) proceeding pending a judicial review of the LAT's refusal to grant an adjournment.

The applicant's newly retained counsel had scheduling conflicts with the set hearing dates.

Applying the RJR-MacDonald test, the court found there was a serious issue to be tried regarding procedural fairness and right to counsel of choice.

However, the court concluded the applicant failed to establish irreparable harm, as other counsel from the firm might be available or the presiding official could address fairness concerns at the hearing.

The balance of convenience favoured the respondent, who had been waiting for benefits.

The motion for a stay was dismissed.

The applicant insurer brought an urgent motion to stay a Licence Appeal Tribunal (LAT) order that denied an adjournment of an upcoming hearing, pending a judicial review application.

The applicant argued that denying the adjournment violated procedural fairness and the right to counsel of choice, as newly retained counsel was unavailable for the scheduled dates.

Applying the RJR-MacDonald test, the court found a serious issue to be tried but concluded the applicant failed to establish irreparable harm, noting other counsel from the firm might be available.

The court also found the balance of convenience favoured the respondent, who had been waiting for benefits.

The motion for a stay was dismissed.

The defendant County brought a motion for further discovery and production of documents in an action arising from a 2009 motor vehicle accident that was not commenced until 2017.

The County sought evidence relevant to a limitation period defence, specifically regarding the plaintiff's capacity and whether a litigation guardian had been appointed earlier.

The court found the plaintiff's affidavit of documents was sufficient and privilege had not been waived.

The court ordered the plaintiff to answer certain refused questions relating to employment records and police calls, but upheld refusals based on solicitor-client privilege and relevance.

The defendant was granted two additional hours of discovery.

Following the dismissal of the defendants' motions for summary judgment regarding a prefabricated building dispute, the parties could not agree on costs.

The plaintiff sought $50,000 in elevated costs or $40,000 on a partial indemnity basis.

The court found no basis for elevated costs but awarded the plaintiff partial indemnity costs.

Noting some excessiveness in the plaintiff's use of two lawyers, the court fixed the costs at $33,000, inclusive of disbursements, to be paid equally by the defendants, and ordered a case conference to manage outstanding issues.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action regarding the defective construction of a storage building.

The defendants argued they owed no duty of care because they followed the plaintiff's specifications for ventilation, and that the action was statute-barred.

The court dismissed the motion, finding the defendants failed to meet their evidentiary burden to show there was no genuine issue requiring a trial regarding their duty of care and reliance.

The court also found the evidence did not establish the claim was discovered outside the two-year limitation period.

The appellant appealed a motion judge's stay of crossclaims against its co-defendant, ABB Inc., arising from a defective tap changer.

The motion judge stayed the crossclaims based on the 'Orgalime' standard terms and conditions, which included an arbitration clause and excluded liability for consequential loss.

The appellant argued that ABB failed to specifically bring these clauses to its attention, relying on Tilden Rent-a-Car.

The Court of Appeal dismissed the appeal, finding that the appellant was a sophisticated corporate consumer and could reasonably be expected to have reviewed the terms referenced in the contractual documents.

The respondent purchased a transformer from the appellant, which failed due to a defective tap changer.

The respondent sued for breach of contract and was granted summary judgment based on the 'fit for purpose' warranty in the Sale of Goods Act.

The appellant appealed, arguing that summary judgment would prejudice its cross-claim against the third-party manufacturer.

The Court of Appeal dismissed the appeal, finding no triable issue regarding the contract breach and no risk of inconsistent findings of fact in the remaining cross-claims.

The plaintiff, a grieving father, sued his son's mother, a funeral home, and its director for breach of contract, deceit, and intentional infliction of mental distress after being excluded from his son's funeral.

The defendants brought a summary judgment motion seeking dismissal of the lawsuit.

The court dismissed all claims, finding no enforceable contract between the parties, no false misrepresentation to support deceit, and insufficient evidence of subjective intent to cause psychological harm for intentional infliction of mental distress, despite acknowledging the defendants' callous and insensitive conduct.

This endorsement addresses two motions in a personal injury action arising from a 2009 motor vehicle accident.

The plaintiffs, who commenced their action eight years post-accident, claim damages against the County of Renfrew for alleged road maintenance failures.

The County brought an omnibus motion, including for summary judgment against municipal employees and for documentary production related to the plaintiffs' limitation defence.

The plaintiffs brought a cross-motion regarding undertakings and refusals.

The court granted summary judgment against the municipal employees on consent, lifted the deemed undertaking rule for previous litigation files, and ordered production of those files subject to privilege.

The court also provided guidance on the form of affidavits of documents and ordered answers to some discovery questions while denying others.

The appellant appealed a Small Claims Court judgment ordering him to repay $10,550 to the respondents.

The respondents had provided the funds to the appellant to post a bond for their brother's release from a U.S. detention centre.

When the U.S. Treasury reimbursed the appellant, he retained the funds, claiming they were for other expenses.

The Deputy Judge found the appellant was unjustly enriched and ordered repayment.

On appeal, the Divisional Court found no error in the application of the test for unjust enrichment and no palpable and overriding error in the factual findings.

The appeal was dismissed.

This is an appeal from a Deputy Judge's decision finding the defendant unjustly enriched.

The plaintiffs had contributed to a bail bond for a relative, which the defendant received reimbursement for but did not repay the plaintiffs.

The appeal addressed whether the Deputy Judge erred in applying the test for unjust enrichment, specifically the absence of juristic reason, and whether there was a palpable and overriding error in the findings of fact.

The court dismissed the appeal, affirming the Deputy Judge's application of the unjust enrichment test and findings of fact.

Following dismissal of a motion seeking removal of the plaintiff’s solicitor for alleged conflict of interest, the court addressed costs.

The plaintiff sought substantial indemnity costs of $6,700, while the defendant argued the time spent was excessive.

The court held that costs should follow the event and that the unsuccessful party should ordinarily pay costs.

Although the motion lacked merit, the court declined to award substantial indemnity costs and instead fixed costs at a reduced amount.

The plaintiff obtained a judgment against a hotel for unpaid marketing invoices.

When the judgment remained unsatisfied, the plaintiff commenced a second action against the hotel's owner and manager.

The motion judge dismissed the second action as an abuse of process, finding the plaintiff's president had purposely withheld evidence about the owner's liability in the first action.

The Court of Appeal allowed the appeal, holding that the motion judge's factual finding was clearly wrong.

The Court further held that in circumstances of joint and several liability, obtaining judgment against one party does not bar a subsequent action against another party, and the second action was not an abuse of process.

The appellants appealed a jury's damages award of nearly $1 million following a motor vehicle accident where liability was conceded.

The appellants argued the trial judge improperly interfered by questioning witnesses to assist the plaintiff's case, unfairly diminished the defence's position in the jury charge, and that the damages were excessive.

The Court of Appeal dismissed the appeal, finding the trial judge's questions were largely for clarification and non-confrontational, noting that experienced trial counsel did not object.

The court also found the jury charge was fair and balanced, and saw no basis to interfere with the damages award.

The appellants appealed a jury verdict awarding damages under the Family Law Act following a fatal motor vehicle accident.

They argued the trial judge erred by failing to correct inflammatory comments by the respondents' counsel, allowing a loss of income claim without actuarial evidence, and that the $200,000 award to the deceased's mother for loss of care, guidance and companionship was grossly excessive.

The Court of Appeal dismissed the appeal regarding the jury addresses and the loss of income claim, finding the trial judge's instructions were sufficient and actuarial evidence is not strictly required.

However, the Court allowed the appeal in part by reducing the mother's award for loss of care, guidance and companionship to $125,000, finding the original amount exceeded the permissible range.