Tara L. Lemke

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 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 applicant sought dispute resolution at the Licence Appeal Tribunal after being denied post-104 week income replacement benefits, medical benefits, and costs of examinations following a motor vehicle accident.

The adjudicator found that while the applicant suffered physical impairments from the accident, he did not suffer a complete inability to engage in any employment for which he was reasonably suited.

The adjudicator preferred the respondent's vocational evidence, finding the applicant could work as a delivery driver.

The adjudicator also found the applicant's psychological issues were caused by subsequent life stressors, not the accident.

The claims for medical benefits and assessments were dismissed as not reasonable or necessary.

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 applicant sought statutory accident benefits for chiropractic and physiotherapy treatments following a 2013 motor vehicle accident.

The Licence Appeal Tribunal dismissed the application, finding that the applicant failed to establish that the claimed expenses were reasonable and necessary as a result of the accident.

The Tribunal noted a significant gap of two to three years between the accident and the medical records provided, which prevented the establishment of a causal link.

A new issue raised at the hearing for additional chiropractic expenses was permitted but denied because no treatment plan had been submitted.

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.

The defendants brought a motion seeking an order bifurcating a jury trial so that liability would be tried first and damages later in a motor vehicle accident action involving catastrophic brain injury and complex insurance coverage issues.

The court held it lacked jurisdiction to bifurcate liability and damages where a valid jury notice had been delivered and the parties did not consent, relying on binding Court of Appeal authority.

The court further noted that even if jurisdiction existed, bifurcation would risk duplicative evidence, inconsistent findings, additional delay and cost, and could undermine settlement incentives.

The motion was dismissed and costs were awarded to the responding plaintiff.

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.

The applicant insurer sought judicial review of a decision by the Director's Delegate of the Financial Services Commission of Ontario.

The Director's Delegate had overturned a preliminary arbitration order that found the respondent insured's application for mediation was time-barred.

The Divisional Court held that the Director's Delegate was reasonable in concluding that the two-year limitation period under the Insurance Act and the Statutory Accident Benefits Schedule did not begin to run until the insurer provided notice of refusal to pay following a negative Designated Assessment Centre report, rather than from the initial notice of stoppage of benefits.

The application for judicial review was dismissed.