Tina H. Lie

The appellant appealed a judgment awarding over one million dollars in damages to the respondents for personal injuries sustained in a motor vehicle accident.

The trial judge discharged the jury after finding that defence counsel breached the rule in Browne v. Dunn by failing to cross-examine the plaintiff on a significant piece of evidence regarding fluid leaking from his ear, which was later introduced through expert witnesses.

The trial judge found the breach irreparably tainted the jury and proceeded with a bench trial, ultimately accepting the plaintiff's evidence and rejecting the defendant's malingering theory.

The Court of Appeal upheld all aspects of the trial judge's decision, including the finding of a Browne v. Dunn breach, the discharge of the jury, the qualification of a treating physician as an expert witness, and the damages award.

The applicants sought the appointment of an Inspector to investigate the management and affairs of two companies, Morris Kerbel Holdings Limited and Paladium Construction Limited, alleging oppressive and unfairly prejudicial conduct by the respondents under the Ontario Business Corporations Act.

The court dismissed the applications, finding that the applicants had not met the second and third parts of the three-part test for appointing an inspector, specifically regarding the necessity and appropriateness of such an extraordinary remedy given that information could be obtained through ordinary litigation tools like an oppression proceeding.

The court also noted concerns about the broad scope, unknown costs, and lack of company resources to fund the investigation.

This costs endorsement followed successful appeals by the Fram and Kerbel entities against Romandale Farms Limited.

Romandale had initially been awarded substantial indemnity costs for four intertwined actions tried together.

The Court of Appeal, applying the principle of overall success rather than issue-by-issue determination, found that Fram and Kerbel were entitled to partial indemnity costs for the original actions, having achieved overall success on appeal and having beaten a joint settlement offer.

The applicants, former officers of the respondent corporation, brought applications for advance funding of their legal fees to defend an action alleging complex commercial fraud.

The applications were brought pursuant to the corporation's Unanimous Shareholders Agreement and section 124 of the Canada Business Corporations Act.

The court applied the strong prima facie case test to determine if advance funding should be denied due to bad faith.

The court dismissed the application of the former CEO, finding a strong prima facie case of fraud had been established against him in a related Mareva injunction motion.

The court granted the application of the former COO, as the evidence did not establish a strong prima facie case of fraud against him.

The appellants appealed a partial summary judgment order finding them liable for breach of contractual warranty and/or negligent representation arising from an inaccurate tree inventory attached to an Asset Purchase Agreement for the sale of tree farm assets.

The respondents claimed a shortfall of 83,106 saleable trees from the represented inventory of 236,341 trees.

The Court of Appeal allowed the appeal and set aside the liability finding, holding that the tree inventory was not a contractual representation or warranty but rather a description of purchased assets.

The court found that the respondents had expressly agreed through due diligence inspection provisions that they had satisfied themselves as to the quantity and quality of plant material, precluding subsequent claims of misrepresentation.

An appeal of a wrongful dismissal judgment where the trial judge awarded an investment banker 18 months' reasonable notice damages following his dismissal without cause due to the closure of his employer's Mergers & Acquisitions division.

The principal issue on appeal concerned whether damages should include the deferred portions of the employee's bonus (60% of annual bonuses paid as notional shares that would vest over time).

The appellants also challenged the trial judge's awards for vacation pay, prejudgment interest, and costs.

The Court of Appeal upheld the trial judge's decision in all respects.

The appellant appealed a jury verdict dismissing her action against her insurer for damages under unidentified motorist coverage.

The appellant claimed that an unidentified vehicle crossed the center line and caused her to lose control of her vehicle and roll into a ditch.

The jury answered "no" to the question of whether the unidentified driver's negligence caused the accident, but answered "yes" to whether the appellant's evidence of the involvement of an unidentified automobile was corroborated.

The appellant argued the jury's answers were inconsistent, that the trial judge erred in her charge on the standard of care in emergencies, the burden of proof, and that the charge was unbalanced.

The appellant also challenged the conduct of defence counsel.

The Court of Appeal dismissed the appeal, finding the jury's answers were reconcilable, the trial judge's charge was adequate, and any concerns about counsel's conduct were appropriately addressed.

The defendant employer brought a motion to stay the plaintiff's wrongful dismissal action, arguing the dispute fell within the scope of an arbitration clause in the employment agreement.

The plaintiff opposed the stay, arguing the arbitration clause was void for lack of consideration and that subsequent amendments to the agreement conferred exclusive jurisdiction to the courts.

Applying the competence-competence principle, the court found it was arguable that the claims fell within the scope of the arbitration clause and that the plaintiff had not established a clear case of invalidity.

The motion for a stay of proceedings was granted, leaving the jurisdictional challenge to be resolved first by the arbitrator.

This appeal concerns the calculation of damages in a motor vehicle accident case involving statutory accident benefits (SABs) deductions, prejudgment interest rates, and statutory deductibles.

The plaintiff was injured in a 2008 collision caused by an impaired driver.

At trial, a jury awarded $220,000 in compensatory damages, but after deductions for SABs and the statutory deductible, the trial judge reduced the judgment to $34,000.

The appellate court addressed three key issues: (1) whether SABs for income replacement should be deducted from both past and future income loss awards; (2) whether punitive damages should have been put to the jury; and (3) the temporal application of amendments to prejudgment interest rates and statutory deductibles.

The court also addressed the defendant's cross-appeal regarding HKHM benefits deductions and the statutory deductible amount.

The plaintiff, Solar Income Fund Inc. (SIF), sued Jennifer Jackson (its former President and COO), Emerging Power Inc. (EPI), and 2427672 Ontario Inc. (242) for $1,000,000 in damages, alleging misrepresentation, breach of contract, and intentional interference with economic relations.

The defendants brought motions for summary judgment to dismiss SIF's action and grant their respective counterclaims.

Jackson counterclaimed for indemnification under SIF's by-laws, while EPI and 242 counterclaimed for outstanding invoices, termination pay, expenses, and commissions.

The court dismissed SIF's claims, finding no genuine issue for trial regarding Jackson's alleged bad faith or breach of duty as an officer/director, nor any evidence of damages.

The court granted all defendants' counterclaims, confirming Jackson's right to indemnification, EPI's entitlement to unpaid fees and termination pay, and 242's right to outstanding commissions, rejecting SIF's arguments of waiver or technical non-compliance.

Costs were awarded to the defendants on a substantial indemnity basis due to the inflammatory nature of SIF's unproven allegations of intentional misconduct.

The Plaintiff, David Bain, sought costs and pre-judgment interest following a successful wrongful dismissal trial against UBS Securities Canada Inc. and UBS Securities LLC, where he recovered over $2.5 million.

The court, applying Rule 57.01 factors and the principle of proportionality, fixed partial indemnity costs for the Plaintiff at $225,000 plus HST of $29,250 and disbursements of $15,000, totaling $269,250.

The court also determined that pre-judgment interest should be calculated on a lump sum basis, awarding $122,756.03, given the Defendants' failure to provide salary continuance or a bonus upon termination.

David Bain, a Managing Director, Head of Canadian M&A at UBS, was terminated without cause after 14 years of service.

He claimed damages for wrongful dismissal, including an extended notice period, unpaid bonuses for 2012 and a stub period in 2013, vacation pay, benefits, referral fees, and mitigation expenses.

The court found the appropriate notice period to be 18 months, determined that bonuses were an integral part of his compensation, and that UBS failed to exercise its discretion fairly in denying bonuses due to his termination.

The court awarded damages based on salary and bonuses, as well as other claimed expenses.

The action against UBS Securities LLC was dismissed.

The defendant brought a motion for summary judgment seeking dismissal of a claim arising from a land purchase agreement involving residential development lands in Oshawa.

The plaintiff alleged that the Agreement of Purchase and Sale and related Omnibus Agreement required a post-closing readjustment of the purchase price where the net developable area of the lands was later reduced.

The court held that the contracts did not provide for post-closing adjustments to the purchase price, and that the closing adjustments based on the consultant’s calculation of net developable area were final.

The plaintiff’s later attempt to rely on a recalculation based on modified development constraints was not conducted using the contractual definition of net developable area and was based on the purchaser’s subsequent development choices.

Interpreting the agreements to allow indefinite post-closing adjustments would create commercial uncertainty and absurdity.

Summary judgment was granted dismissing the claim.