Thomas R. Lederer

This endorsement addresses a motion brought by Robert Bilich, a non-party, seeking to enforce Revised Minutes of Settlement from a previously settled trial and to obtain declarations regarding alleged misappropriation of funds by the defendants.

The settlement required the defendants to provide quarterly accountings to investors.

Bilich, claiming to represent an investor, alleged non-compliance.

The court found that the defendants had belatedly provided an accounting, thereby purging any potential contempt.

The court dismissed Bilich's motions, refusing an adjournment for cross-examination, as his true intent was to re-open settled trial issues and pursue allegations of misappropriation, for which he lacked status.

The court affirmed the defendants' ongoing obligation to provide quarterly accountings to investors.

The applicant sought damages for breach of contract, tracing orders, constructive trust, equitable lien, and piercing the corporate veil against the corporate and individual respondents.

The court dismissed the application, finding that service was not properly effected under the Rules of Civil Procedure, the application was not a suitable vehicle for the claims as the contract was not founded on an "instrument" as required by Rule 14.05(3)(d), and the claims against the individual respondent for independent tort required an action and possibly a trial, not an application.

The court also declined to grant execution remedies without proper service and an opportunity for the respondents to participate.

This decision addresses five separate motions brought by the plaintiffs to reinstate administratively dismissed actions or extend time for filing/serving Statements of Claim, after 14 years of litigation with minimal progress.

The court dismissed all motions, finding that the plaintiffs had abused the process by repeatedly attempting to re-litigate issues already decided, misusing court procedures for investigative purposes rather than advancing claims, consistently ignoring court orders and timetables, and failing to properly manage their claims and expert evidence.

The court relied on its inherent jurisdiction to manage its process, concluding that the delay was inordinate and inexplicable, and that "enough is enough."

The defendant, MCAP Financial Corporation, brought a motion for summary judgment to dismiss the plaintiff's action, which alleged that MCAP acted improvidently in selling a mortgaged property under power of sale.

The court found that there were genuine issues requiring a trial regarding the reasonableness of MCAP's conduct in the sale process, including the property valuation methodology, the consideration of environmental remediation tax advantages, the marketing efforts, and the evaluation of multiple offers.

The motion for summary judgment was dismissed.

The applicants sought to set aside a sheriff's sale of their property, which was conducted to satisfy outstanding costs awards.

They alleged the sale was improvident, the required process was not followed, and they did not receive proper notice.

The court found that the sale price was not improvident based on a realtor's opinion, the auction was properly conducted, and the applicants had actual notice of the sale despite a minor procedural non-compliance with posting requirements.

The application was dismissed.

This is an appeal from a Master's order concerning two issues: security for costs and solicitor-client privilege over certain emails.

The security for costs issue was resolved by agreement during the appeal.

The primary issue remaining was whether emails sent by the plaintiff to his solicitor using a corporate email account were protected by solicitor-client privilege.

The court upheld the Master's decision, finding that the plaintiff had a reasonable expectation of privacy and that solicitor-client privilege, being a fundamental and substantive principle in Canadian law, was not waived despite the inadvertent disclosure of the emails.

The court distinguished solicitor-client privilege from general privacy expectations and rejected the application of American jurisprudence due to its narrower interpretation of privilege.

The Ontario Psychological Association (OPA) sued its former employee, Charlotte Mardonet, for misappropriating over $1.6 million.

Mardonet counterclaimed against the OPA and its individual officers and directors, seeking contribution and indemnity based on their alleged failure to supervise her.

The individual officers and directors moved to strike these paragraphs of the counterclaim, arguing they disclosed no reasonable cause of action.

The court granted the motion, finding it plain and obvious that officers and directors owe no duty of care or fiduciary duty to an employee to protect them from their own wrongdoing.

Stephen Doherty appealed a Consent and Capacity Board decision finding him incapable of consenting to psychiatric treatment, specifically antipsychotic medication.

The court addressed the mootness doctrine, determining the appeal was not moot due to the potential impact on future substitute decision-making.

Applying a reasonableness standard to the Board's factual findings, the court upheld the Board's determination that Doherty lacked the ability to appreciate the reasonably foreseeable consequences of his treatment decisions, despite some symptomatic improvement.

The appeal was dismissed.

The applicants brought a motion to set aside the discontinuance of their action for misfeasance in public office against the respondents.

The action was discontinued after three days of trial following a settlement.

The applicants sought to adduce new evidence, specifically Canada Revenue Agency re-assessments from January 2016 that allowed their tax objections, arguing these constituted exceptional circumstances.

The court dismissed the motion, finding that the new evidence did not meet the criteria for setting aside a discontinuance, as it did not refer to events leading to the action and would not have changed the original outcome or proven misfeasance.

The court also addressed the inapplicability of res judicata and issue estoppel regarding findings from prior criminal proceedings.

The applicants sought a declaration that the respondent breached a purchase agreement for three properties, leading to the forfeiture of a $400,000 deposit.

The agreement made time of the essence and specified strict notice requirements for waiving or satisfying conditions.

The respondent failed to provide timely written notice that conditions were not waived or satisfied, instead proposing an extension.

The court found that the proposed extension did not constitute proper notice and that the vendors did not breach their duty of good faith by not responding to the extension offer.

Consequently, the conditions were deemed satisfied, the respondent was in default, and the deposit was forfeited to the applicants.

The plaintiff, Louise Talbot, brought a motion for partial summary judgment seeking repayment of $127,843 owed under two promissory notes from the defendants, Jeffrey Nourse and two corporate entities.

The defendants disputed the validity of one $200,000 note, claiming it was an investment, and argued that outstanding undertakings regarding bank statements precluded summary judgment.

The court, applying the framework from Hryniak v. Mauldin, found no genuine issue requiring a trial.

The evidence of a handwriting expert and a witness corroborated the plaintiff's claim regarding the promissory notes.

The court dismissed the defendants' arguments regarding the investment claim and the relevance of outstanding undertakings to the promissory notes.

The court also declined to stay execution of the judgment pending the counterclaim, citing the delay caused by the defendants and the lack of interest on the notes.

Judgment was granted for the plaintiff for $127,843 plus pre- and post-judgment interest.

Telecommunications companies sought leave to appeal certification orders permitting class proceedings concerning cellular phone billing practices.

The proposed class actions alleged that the defendants breached contracts, engaged in deceptive practices contrary to the Consumer Protection Act, 2002, and were unjustly enriched by rounding call durations up to the nearest minute under plans described as billed “per minute.” The moving parties argued that individual contractual contexts prevented the existence of a common issue and that certification was therefore inappropriate.

The court held that the meaning of the contractual phrase “per minute billing” was a common issue capable of resolution across the class, particularly given the standardized and adhesive nature of the consumer contracts.

Leave to appeal was refused and the certification orders were left undisturbed.

Following a jury trial arising from a motor vehicle collision involving a public transit bus, the jury found that although liability was admitted, the plaintiff failed to prove the accident caused compensable injury.

After a subsequent hearing addressing responsibility for trial costs, the estate and former counsel were ordered to pay certain costs to the transit authority.

The present endorsement addressed a further request by the estate trustee, in her personal capacity, seeking substantial costs for the costs hearing itself.

The court held that proceedings determining costs rarely justify an additional award of costs absent unusual circumstances and found the amount claimed disproportionate to a one‑day hearing.

The court concluded that the ordinary principle that costs proceedings do not generate further costs should apply.

The self‑represented plaintiff sought damages against a bank after a cheque issued jointly to the plaintiff and a contractor’s corporation was deposited into the corporation’s account.

The plaintiff alleged the bank had wrongfully negotiated the cheque contrary to advice that both payees must attend in person.

The court found no evidence that the bank made such a representation and held that under the Bills of Exchange Act a cheque payable to joint payees may be negotiated where it bears the endorsement of the absent payee and the funds are deposited to the present payee’s account.

The evidence showed the plaintiff voluntarily endorsed the cheque and delivered it to the contractor as part of an arrangement to obtain insurance proceeds.

The bank’s conduct was consistent with both the governing law and its policies, and any dispute regarding the funds was between the plaintiff and the contractor.

Following a jury trial concerning a motor vehicle collision in which liability had been admitted, the jury found that the accident did not cause or contribute to the injuries alleged by the deceased plaintiff.

The defendant transit authority sought costs.

The court held that the successful defendant was entitled to costs on a partial indemnity scale but reduced the fees claimed after finding aspects of the bill excessive.

The court further held that the estate trustee should not be personally liable for costs where she merely continued litigation commenced by the deceased.

However, due to counsel’s fundamental misunderstandings in presenting the damages case, the court ordered that a portion of the costs be paid personally by plaintiff’s counsel under Rule 57.07.

The defendants appealed an order of a Master granting leave to amend a statement of claim in a solicitor’s negligence action.

The appellants argued the amendments introduced new causes of action related to defamation and republication that were statute‑barred under the Limitations Act, 2002.

The court held that the original pleading already contained the material facts necessary to ground the negligence claim based on the solicitor’s alleged failure to commence proceedings, including defamation claims arising from a police association news release and subsequent publications.

The amendments merely clarified and expanded on the same negligence theory rather than introducing new causes of action.

Applying the liberal amendment principles under Rule 26.01 of the Rules of Civil Procedure, the court dismissed the appeal.

The applicant sought rectification and enforcement of an agreement for the purchase of internment rights in a cemetery development.

The respondent argued that the signed document was merely a memorandum of understanding and that a formal agreement subject to legal review had not yet been concluded, requiring the matter to proceed to trial.

The court examined the parties’ post‑execution conduct, including payment and acceptance of a deposit, commencement of due diligence, engagement of consultants, marketing of burial plots, and planning applications.

These actions demonstrated that both parties treated the May 13, 2014 document as the binding formal agreement.

The court held that references within the document to a future “formal agreement” were the result of mutual mistake and ordered rectification.

The appellant appealed a decision of the Consent and Capacity Board finding him incapable of consenting to treatment with antipsychotic medication under the Health Care Consent Act, 1996.

The court considered whether the Board lacked jurisdiction due to panel composition, the proper legal test for capacity under s. 4(1) of the Act, the applicable standard of review, and whether the Board’s application of the test was reasonable.

The court held that tribunal expertise justified deference regardless of the individual qualifications of panel members and that the standard of review for the Board’s application of law to facts was reasonableness.

The Board reasonably concluded that although the appellant could understand relevant information, symptoms described as perseveration and grandiosity prevented him from appreciating the reasonably foreseeable consequences of refusing treatment.

The Board’s decision fell within a range of defensible outcomes and was upheld.

The plaintiff appealed a Master's refusal ruling made during examinations for discovery in a wrongful dismissal action involving a senior trading employee.

The appeal challenged the Master's refusal to compel answers to certain discovery questions and requests for document production, including historical trading records, settlement negotiation materials, metadata, bonus pool information, and board approval materials for a deferred payment plan.

Applying the proportionality principles under the Rules of Civil Procedure, the court held that the requested production would be disproportionate or irrelevant and that the Master made no palpable or overriding error.

The court emphasized deference to Masters on discovery matters and reaffirmed that proportionality governs the scope of discovery.

The appeal was dismissed.

An insurer appealed an arbitrator’s decision concerning a statutory loss transfer claim under the Insurance Act following payment of statutory accident benefits after a motor vehicle accident.

The appellant insurer argued the two‑year limitation period under the Limitations Act, 2002 began with the first request for indemnification and barred the claim because arbitration commenced more than two years later.

The court upheld the arbitrator’s conclusion that each request for indemnification creates a separate “rolling” limitation period that begins when the second‑party insurer fails to satisfy that request.

While the first request for indemnification was statute‑barred, later requests were within the limitation period and remained enforceable.

The court emphasized that loss transfer claims arise from statute rather than tort principles and are analogous to recurring contractual obligations.