Thomas J. Curry

A law firm appealed an application judge’s decision interpreting a contingency fee retainer agreement and rejecting its claim to a share of damages awarded on appeal.

The client had retained new counsel for the appeal, which resulted in a substantial damages award after an unsuccessful trial.

The firm argued it was entitled to fees under the retainer or alternatively on a quantum meruit basis.

The Court of Appeal held that the retainer expressly limited fee entitlement to damages recovered by settlement or judgment at trial and did not include recovery obtained on appeal.

The court also held that quantum meruit relief was unavailable where the parties had expressly defined the circumstances of payment.

The appeal was dismissed.

This endorsement concerns the costs arising from successful summary judgment motions brought by Eaton Industries (Canada) Company and The Corporation of The City of London against Albert Bloom Limited (ABL).

The motions dismissed ABL's claims as statute-barred.

ABL conceded entitlement to costs but disputed the quantum, alleging duplication and excessiveness, particularly given Eaton's prior cost award in a related third-party motion.

The court found the claimed costs reasonable, noting the significance of the litigation, Eaton's efforts to avoid duplication, and ABL's failure to disclose its own costs for comparison.

The defendants, Eaton and the City of London, moved for summary judgment to dismiss the plaintiff's environmental contamination claims as statute-barred.

The plaintiff alleged that historical manufacturing operations on the defendants' former property caused TCE contamination that migrated to the plaintiff's property.

The court found that the plaintiff had actual or objective knowledge of its potential claims against the defendants more than two years before seeking to add them to the action.

The court also rejected the plaintiff's argument that the ongoing migration of contaminants constituted a continuing tort or a continuing spill under the Environmental Protection Act.

The motions for summary judgment were granted and the claims against Eaton and the City were dismissed.

The defendants brought a motion to set aside a default judgment entered against the Crown in an action arising from a fatal mining accident.

The parties reached a resolution consenting to set aside the default judgment on terms, including the payment of substantial costs by the Crown.

The court endorsed the resolution, finding that the five-part test for setting aside a default judgment was met, as the delay was due to unique circumstances compounded by the pandemic, and the Crown had an arguable defence.

The court also granted a sealing order for certain medical information to protect personal privacy.

The self-represented plaintiff, citing a disability, requested several accommodations to proceed with her action, including the recusal of the case management judge, the appointment of an out-of-province judge, and state-funded legal counsel.

The defendants argued these requests were substantive remedies requiring a formal motion.

The case management judge agreed, finding that the requested accommodations could not be granted informally and directed the plaintiff to bring a formal motion for recusal, setting a timetable for the exchange of materials.

The self-represented plaintiff requested an adjournment of a scheduled case conference, submitting a brief medical note stating she was unable to attend court proceedings due to an ongoing disability.

The defendants opposed an indefinite abeyance, arguing the note lacked details on prognosis or necessary accommodations.

The court adjourned the case conference for a short period, directing the plaintiff to provide more extensive medical evidence of her disability and to propose reasonable accommodations, noting that the litigation could not be delayed indefinitely.

The plaintiff, a self-represented litigant, commenced an action alleging anti-Black discrimination in the workplace.

The defendants sought to schedule a case conference to advance their motion to strike the action on jurisdictional grounds.

The plaintiff resisted scheduling the case conference, asserting she was unable to proceed due to a disability caused by the defendants' conduct.

The case management judge held that while the court must accommodate litigants with disabilities, such accommodation does not extend to indefinite delays that prejudice the defendants' right to have the action determined.

The court scheduled a case conference and directed the plaintiff to consider her position regarding accommodation or retaining counsel.

The Court of Appeal fixed the respondents' costs of the appeal at $90,000 inclusive of disbursements and applicable taxes.

The appellant physician appealed a jury verdict finding him liable for negligent management of a twin pregnancy, which resulted in premature birth and brain damage to one of the twins.

The appellant argued the jury's verdict on causation was unreasonable due to a lack of evidence that the required treatment, amnioreduction, was available at the referral hospital in 1991.

The appellant also challenged the trial judge's jury instructions regarding adverse inferences, the characterization of expert evidence, and the failure to instruct on loss of chance.

The Court of Appeal dismissed the appeal, finding that there was an evidentiary basis for the jury's conclusion on causation and that the jury charge was fair, balanced, and legally correct.

This decision addresses the costs arising from two applications brought by the Town of Oakville that were struck out by the court.

Clublink, the successful party, sought $137,903.70 in partial indemnity costs, while the Town argued for no costs or, alternatively, $30,000.

The court rejected the Town's arguments for denying costs, noting that the Town's counter-applications created an unnecessary multiplicity of proceedings.

While acknowledging the extensive litigation context and the involvement of multiple senior counsel, the court found Clublink's requested costs excessive for a relatively straightforward motion to strike.

Applying principles of fairness, reasonableness, and proportionality under the Courts of Justice Act and Rule 57.01, the court fixed costs on a partial indemnity basis at $65,000, inclusive of disbursements and HST.

The plaintiff, a lawyer employed by the Crown, moved for a mandatory interlocutory injunction to reinstate her salary and benefits pending the outcome of her action alleging racial discrimination and a toxic workplace.

The court dismissed the motion, finding that the dispute over pay and benefits fell within the exclusive jurisdiction of an arbitrator under the collective agreement.

Furthermore, the court held that the Proceedings Against the Crown Act barred injunctive relief against the Crown, and the plaintiff failed to meet the stringent test for a mandatory injunction, including failing to establish a strong prima facie case or irreparable harm.

In a medical malpractice jury trial, the court determined whether long‑term disability (LTD) and Canada Pension Plan (CPP) disability benefits should be deducted from damages for past and future income loss.

The plaintiff suffered a stroke after being discharged from hospital and claimed permanent inability to work.

The court held that CPP disability benefits are not deductible from income loss awards.

However, applying the Supreme Court of Canada’s guidance in IBM Canada Limited v. Waterman, the court concluded that the plaintiff’s employer‑funded LTD benefits functioned as indemnity for wage loss and should be deducted from any jury award to avoid double recovery.

The jury was therefore instructed to deduct LTD payments from both past and future wage loss damages.

Two legal associations brought motions for leave to intervene in an appeal concerning professional misconduct and the role of advocates.

The appeal raised issues regarding when zealous advocacy crosses into actionable misconduct and the use of prior court decisions in disciplinary proceedings.

The court granted both motions, finding that the proposed interveners, as recognized organizations of advocates, would provide useful perspectives on the implications of the issues raised without duplicating the parties' submissions.

In bankruptcy proceedings involving the debtor, the court addressed two issues: post‑judgment interest on a foreign judgment and the proposed terms of a Mareva injunction in aid of execution.

The parties agreed that simple interest on the foreign judgment would run from April 20, 1998 to September 28, 1998 at 10% per annum, which the court ordered.

The moving party sought a broad Mareva injunction restricting the debtor’s dealings with assets and requiring extensive disclosure.

Given emerging concerns about the adequacy of disclosure by the moving party in earlier proceedings and the fact that the trial judge would be hearing additional evidence on sanctions, the court declined to rule on the Mareva relief and left the issue to the trial judge.

Following extensive trial reasons in complex bankruptcy and fraud proceedings, the court issued a second case conference memorandum addressing outstanding procedural and remedial issues.

The court directed that issues concerning damages recoverable by a creditor, tracing relief, and costs orders against certain defendants be scheduled before the associate chief justice who presided over related contempt proceedings.

The memorandum also clarified that a previously ordered constructive trust over the bankrupt’s property should be incorporated into the final order without further submissions.

The court established a timetable for written submissions on post‑judgment interest relating to an earlier judgment and on the terms of a Mareva injunction in aid of execution.

The decision functioned primarily as case management to finalize remaining issues in the litigation.

The case management judge issued directions regarding the scheduling and sequencing of outstanding issues in a complex bankruptcy proceeding.

The court ordered written submissions for issues concerning the disclosure of the Trustee's report and the release of funds, while deferring other matters, including examinations and discharge hearings, until the trial judge releases supplementary reasons and determines contempt sentencing.

The Toronto Police Association (TPA) Board passed a resolution dissolving the Legal Assistance Plan Board and assuming its duties.

The respondents, members of the Plan Board, successfully applied for a declaration that the resolution was ultra vires.

The TPA appealed.

The Court of Appeal held that the regulation creating the Plan Board had the legal status of a by-law, and under the TPA's letters patent and section 129 of the Corporations Act, the TPA Board could not amend it without member approval.

The appeal was dismissed regarding the resolution's invalidity, but allowed in part to strike an overly broad mandatory order restraining the TPA Board from using the Plan Board's files for any purpose.