Todd J. Burke

The applicant sought entitlement to life insurance proceeds to reimburse expenses for her father's care prior to his death.

The respondent sought removal of the applicant from her positions as estate trustee and trustee of a trust holding corporate shares, and challenged the validity of the deceased's will and trust provisions.

The court found the applicant entitled to the insurance proceeds based on a binding agreement, upheld the validity of the will and trust, declined to remove the applicant as director or estate trustee, but removed her as trustee of the shares due to conflict of interest.

The applicant husband sought to bifurcate family law proceedings, separating professional liability claims (breach of fiduciary duty and intentional infliction of mental distress arising from a prior psychotherapist-patient relationship) from matrimonial claims (divorce, support, and equalization).

The respondent wife opposed bifurcation, arguing the claims were inextricably linked as part of a continuous pattern of coercive control.

The court dismissed the motion, finding that hearing the matters together was more just, efficient, expeditious, and proportionate, particularly given the respondent's intention to testify about the entire relationship in the family law proceeding and the absence of any benefit from a stepwise approach.

The court considered motions for costs personally against George Windsor, who commenced proceedings on behalf of Gilles Jozias Overtveld and Gi-Las Management and Maintenance Ltd. without proper authority.

The action was found to be duplicative, meritless, and a waste of resources.

The court fixed costs on a substantial indemnity basis against Mr. Windsor personally, disallowed him from charging legal fees to the plaintiffs, and set out the principles for awarding costs in such circumstances.

The plaintiffs, Mitel Networks Corporation and Mitel Networks, Inc., sought a declaration that the defendant, Division Integral de Telefonia S.A. de C.V. (“Divitel”), breached a distribution agreement and requested judgment for outstanding payments, as well as the preservation and return of all products.

The court details the extensive efforts required to serve Divitel in Mexico under the Hague Service Convention, including multiple Letters Rogatory and publication in Mexican newspapers.

Divitel was noted in default, and the court granted default judgment in favour of Mitel for $1,607,707.32 CAD ($1,174,966.98 USD), as well as costs and disbursements.

The court found the costs reasonable given the complexity and international service requirements.

This appeal concerned a dispute over indemnification and escrow provisions in an asset purchase agreement, specifically whether an amendment to a Notice of Application was statute-barred.

The Court of Appeal dismissed the appeal, affirming the application judge's decision that the amendment was not statute-barred, despite an error in the application of s. 16(1)(a) of the Limitations Act, as it did not introduce a new cause of action or remedy.

The court also upheld the interpretation of the Escrow Agreement regarding notice delivery, finding that registered mail was not a valid method of delivery.

NorthStar Earth & Space Inc. sought an urgent interlocutory injunction against Spire Global Subsidiary, Inc. to prevent the deorbiting or decommissioning of three failed satellites and the termination of image downloading services.

NorthStar argued these interim measures were necessary pending an arbitration concerning Spire's alleged breaches of a Constellation Services Framework Agreement.

The court granted the injunction, finding a reasonable possibility that NorthStar would succeed on the merits, particularly regarding Spire's anticipatory breach of its obligation to replace satellites and its obligation to continue operating the failed satellites.

The court also found NorthStar would suffer irreparable harm due to a limitation of liability clause and the irreversible nature of deorbiting, and that the balance of convenience favored granting the injunction.

NorthStar was ordered to pay a monthly fee for the continued operation of the satellites, and Spire was ordered to pay NorthStar partial indemnity costs.

The plaintiffs, representing Ottawa taxi plate holders and brokers, brought a class action against the City of Ottawa for its response to Uber's entry into the local market in 2014.

The court found that the City owed a duty of care to the taxi industry based on a long-standing, collaborative relationship and was negligent in failing to enforce its 2012 taxi by-law against Uber.

However, the court dismissed the plaintiffs' claims that the City's actions violated section 15 of the Charter or the Human Rights Code, finding no disproportionate discriminatory impact based on race or immigrant status.

The court also dismissed the claim that the City's taxi licensing fees constituted an unlawful tax, finding a reasonable nexus between the fees and the cost of services provided.

The applicants, SpaceBridge, sought declarations that an indemnity claim made by the respondents, Baylin, under an asset purchase agreement (APA) and related escrow agreement was invalidly delivered, and for the return of $1,826,512 paid out of an escrow fund.

The core dispute revolved around the interpretation of contractual notice provisions, specifically whether delivery by registered mail was a permitted method under the Escrow Agreement, which had different notice modalities than the APA.

The court found that registered mail was not a valid mode of delivery under the Escrow Agreement, meaning Baylin's claim certificate was not properly delivered, and thus SpaceBridge's 30-day objection period never commenced.

Consequently, the payment from the escrow fund was improper, and Baylin was ordered to return the funds.

The court also dismissed Baylin's arguments regarding limitation periods and estoppel, but clarified that the ruling did not invalidate Baylin's underlying indemnity claim under the APA, which could still be pursued through litigation.

The defendant, Dr. Philip Ricciardi, brought a motion to prohibit Brian Ludmer from acting as counsel for the plaintiffs, Jefferson Wiggins et al., in a professional negligence action.

The defendant argued that Mr. Ludmer, having extensively interacted with Dr. Ricciardi as the plaintiff's previous family law counsel, would inevitably be a witness or rely on personal knowledge, creating a conflict of interest under the witness-advocate rule.

The defendant also raised a potential conflict regarding the limitation period defence.

The court granted the motion to prohibit Mr. Ludmer from acting due to the witness-advocate conflict, finding that his questioning would imply an 'unsworn offer of the lawyer’s version of the facts.' However, the court dismissed the limitation period conflict argument, as the plaintiff waived any claim against Mr. Ludmer.

This endorsement addresses three motions: the applicant's motion to strike portions of the respondent's affidavit, the respondent's cross-motion to strike portions of the applicant's affidavit and exhibits, and the applicant's motion to compel answers refused during cross-examination.

The applicant, a former director of the Canadian Internet Registration Authority (CIRA), challenged his disqualification as a board candidate and sought corporate documents related to CIRA's financial affairs, including employee severance packages.

The court dismissed both parties' motions to strike, affirming that preliminary motions to strike on evidentiary grounds are generally inappropriate and admissibility should be left to the application judge.

The applicant's motion to compel answers was allowed in part, compelling answers related to the bona fides of his document request and board briefings on financial settlements, but upholding refusals on questions concerning the merits of whistleblower allegations or legal opinions.

Success was deemed evenly divided, with no order as to costs.

The moving parties, the Canadian Federation of Students (CFS), brought a motion for an interim injunction to prohibit the responding party, the Carleton University Students' Association (CUSA), from proceeding with a referendum regarding disassociation from CFS.

CFS argued the referendum violated its bylaws, which dictate a specific process and timeline for such votes.

CUSA contended the referendum was merely consultative and non-binding.

Applying the RJR-MacDonald test, the court found a genuine issue to be adjudicated and that proceeding with the referendum would cause irreparable harm by subverting the regular process to which all members are bound.

The court granted the mandatory order prohibiting the referendum.

The appellant, Annabelle Maritza Edgeworth, appealed an order which dismissed most of the claims in her action.

Her action alleged that the respondents (lawyers, an insurer, and a medical assessor) conspired to suppress a defence medical report in a prior personal injury case, leading to claims for unlawful means conspiracy, intrusion on seclusion, conspiracy to injure, and misrepresentation.

The Court of Appeal upheld the motion judge's decision, finding that a failure to comply with a procedural rule (r. 33.06) was not a "wrongful act" for unlawful means conspiracy, and the intrusion on seclusion claim failed as the medical examination was consented to.

The court also affirmed the removal of the appellant's counsel due to a conflict of interest.

The appeal was dismissed with costs.

The plaintiff, a former employee of Sun Life, sued his former manager for fraudulent misrepresentation, breach of contract, and intentional interference with contractual relations after his employment was terminated.

The defendant manager moved to strike the statement of claim for disclosing no reasonable cause of action.

The court granted the motion, finding that the plaintiff failed to plead that the manager's actions exhibited an identity or interest separate from the employer, which is required to establish personal liability.

The statement of claim was struck in its entirety without leave to amend.

The plaintiff, Richcraft Homes Ltd., initiated an action against several defendants, including Urbandale Corporation, Urbandale Construction Limited, and Lawrence Weinstein, seeking declaratory relief for oppressive conduct, breach of contract, and punitive damages related to land development projects.

The defendants brought motions under Rule 21 to strike Richcraft's claims, arguing they failed to plead material facts supporting a reasonable prospect of success.

The court granted the motions, finding that Richcraft did not demonstrate compensable injury or a likelihood of threatened oppressive conduct, nor an independent actionable wrong for punitive damages.

Leave to amend was denied due to the absence of proposed amendments or supporting evidence.

The appellants appealed a trial judgment finding them liable for a fuel oil spill at the respondents' home.

The trial judge found that the appellants negligently failed to identify that the respondents' fuel oil tank, which was labelled for indoor use, was installed outdoors, and failed to tag it as non-compliant.

The appellants argued the trial judge erred by applying the 'material contribution' test for causation instead of the 'but for' test.

The Court of Appeal dismissed the appeal, holding that while the trial judge articulated the wrong test, she effectively applied the 'but for' test by finding the spill would not have occurred if the appellants had fulfilled their regulatory obligations.

The Court also upheld the trial judge's apportionment of liability, finding of contributory negligence, and damages assessment.

The plaintiffs, successful in their negligence claims but found 40% contributorily negligent, sought substantial indemnity costs from the defendants following an oil spill.

The court determined the appropriate hourly rates for counsel, disallowed fees for redacted dockets and administrative tasks, and reduced disbursements due to insufficient detail.

The plaintiffs' offer to settle triggered substantial indemnity costs from June 9, 2016, forward.

The court fixed the plaintiffs' total costs at $175,000, with Ultramar Ltd. being entirely responsible but entitled to recover 50% from Kilpatrick Fuels Limited and Joe Burns on its crossclaim.

The plaintiffs, successful in their negligence claims at trial, sought costs.

However, they deliberately withheld the terms of their contingency fee agreement with their insurer and individual clients.

The defendants argued for disclosure, citing the principle of indemnity in costs assessment.

The court found the non-disclosure intentional and crucial for properly fixing costs.

The court ordered plaintiffs' counsel to file the fee agreement under seal for judicial review to determine its compliance with O. Reg. 195/04 and to identify the terms requiring disclosure to the defendants for costs calculation.

The plaintiff, Shaver-Kudell Manufacturing Inc., sought costs on a substantial indemnity basis for an abandoned summary judgment motion and partial indemnity costs for a 13-day trial, following its complete success on liability where it was found that the defendants misappropriated its trade secret and confidential customer information.

The defendants argued for deferral of costs, challenged the scale of costs for the summary judgment motion, and disputed the quantum of costs and disbursements.

The court determined that costs should not be deferred, found the plaintiff's Rule 49 offer to settle the summary judgment motion valid, and awarded partial indemnity costs for the summary motion to the date of the offer and substantial indemnity thereafter.

The court also fixed the trial costs, making adjustments for certain claimed amounts and expert fees, ultimately ordering the defendants to pay specific amounts for both the summary motion and the trial.

The applicants, participants in a syndicated mortgage, sought payment out of court of surplus funds from a municipal tax sale after the mortgage went into default.

They had previously settled litigation against their investment advisor for a substantial sum.

The respondents, also mortgage participants, contended that the applicants must account for these settlement funds, which would alter the distribution of the surplus.

The court found no obligation for the applicants to account for the settlement funds, as these were damages from third-party litigation, not proceeds from the mortgage or land.

The court granted the applications for payment out of court based on the First Priority lenders' interests, dismissing the respondents' accounting claim.

The plaintiff, Shaver-Kudell Manufacturing Inc. (SK), sued the defendants, Knight Manufacturing Inc. (KM), Lucy Shaver (a former long-term employee of SK), Dusko Ballmer (Lucy's common-law spouse and KM's consultant), and Alexander Knecht (KM's founder), for misappropriation of trade secrets related to its metal sleeve manufacturing process and tooling, and for breach of confidence regarding its customer list.

The court found that SK's manufacturing process and tooling were trade secrets, and that the defendants breached confidence and misappropriated these secrets.

Additionally, the court found that Lucy Shaver breached her duty of confidence and good faith by using her memorized knowledge of SK's customer list to solicit clients for KM shortly after leaving SK's employment.