Todd J. Burke

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 appellant physiotherapist appealed an 18-month suspension imposed by the Discipline Committee for practicing without professional liability insurance and misleading the College.

This was the appellant's third disciplinary proceeding involving dishonesty.

The Divisional Court dismissed the appeal, finding that the penalty was not demonstrably unfit or clearly excessive given the exceptional circumstances, repeated instances of dishonesty, and the need for specific and general deterrence.

The respondents brought motions to quash the appellant's appeal of an order striking parts of her statement of claim and removing her lawyers of record.

The respondents argued both orders were interlocutory and should be appealed to the Divisional Court with leave.

The Court of Appeal dismissed the motion to quash the appeal of the order striking the claim, finding it was final because it effectively foreclosed amendments.

However, the court quashed the appeal of the order removing counsel, confirming it was interlocutory and leave to appeal must be sought in the Divisional Court.

The College of Dental Hygienists of Ontario held an uncontested discipline hearing regarding a registrant who admitted to engaging in a concurrent sexual and treating relationship with a patient from 2016 to 2018.

The Discipline Committee found that the conduct constituted sexual abuse of a patient and professional misconduct.

Accepting a joint submission on penalty, the Committee ordered the immediate revocation of the registrant's certificate of registration, an oral reprimand, reimbursement for any patient therapy funding, and $2,000 in costs.

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 College of Psychologists of Ontario brought disciplinary proceedings against a psychologist for engaging in a sexual relationship with a former client within two years of terminating the therapeutic relationship.

The member admitted to the allegations and the parties submitted an agreed statement of facts and a joint submission on penalty.

The Discipline Committee found the member guilty of professional misconduct and ordered a reprimand, a 12-month suspension (with 4 months suspended upon completion of remedial courses), and $2,000 in costs.

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.

This ruling addresses the final terms of judgment following a trial where liability was apportioned 60% to Ultramar and 40% to the plaintiffs.

The court resolved disputes between the parties regarding the precise wording of the judgment, specifically concerning the subrogated claim, Ultramar's crossclaim for indemnity, and the inclusion of pre-judgment and post-judgment interest.

The court largely adopted the plaintiffs' proposed judgment wording, emphasizing that a judgment must reflect the enforceable result rather than the underlying calculations or reasons for decision.

Pre-judgment interest and costs were noted as subjects for a subsequent order.

The appellant, a registered physiotherapist, appealed a decision of the Discipline Committee finding him guilty of professional misconduct for inappropriate touching during a patient's ankle treatment.

The Committee imposed a three-month suspension and costs.

On appeal, the appellant argued the Committee breached procedural fairness by attempting to physically recreate his described treatment techniques during their private deliberations.

The Divisional Court dismissed the appeal, holding that the Committee's actions were a proper evaluation of the evidentiary record and its credibility findings were reasonable and entitled to deference.

The penalty was also upheld as falling within a reasonable range.

The appellant appealed the dismissal of his motion seeking leave to bring a derivative action in the name of the respondent corporation pursuant to s. 246 of the Business Corporations Act.

The appellant argued the motion judge applied the wrong legal test and considered irrelevant factors when determining whether the action appeared to be in the interests of the corporation.

The Divisional Court dismissed the appeal, finding the motion judge correctly applied the legal test and appropriately considered multiple relevant factors, including the appellant's negligible shareholdings, the lack of support from other shareholders, and the potential diversion of management resources.

The appellant appealed from orders of the Superior Court of Justice dated March 29, 2016 and December 6, 2016, as well as an associated costs award dated June 3, 2016.

The Court of Appeal for Ontario issued a costs endorsement awarding costs to the respondent, The Toronto-Dominion Bank, on a partial indemnity scale.

The appellant appealed from orders of the Superior Court of Justice dismissing the bank's motion for summary judgment while also dismissing the appellant's motion to strike the statement of claim, as well as a costs award and a case management order.

The Court of Appeal quashed the appeals, finding that the orders appealed were not final orders as they did not dispose of the action or finally dispose of an issue or defence.

The court held that the proper appeal route was to the Divisional Court and that the absence of a motion to quash did not afford jurisdiction to the Court of Appeal.

The plaintiff sued numerous lawyers, insurers, medical assessors, experts, and court reporting parties arising from the handling of underlying motor vehicle accident tort and accident benefits litigation.

The court applied the summary judgment framework and held that the claims were either statute-barred, defeated by the absence of any duty of care, barred by expert witness immunity, unsupported by admissible evidence, or lacking any proof of compensable damage.

Claims against former counsel failed for limitation and lack of expert support and causation; claims against opposing counsel and insurers failed because no duty was owed to an adverse party; claims against expert assessors failed because their litigation-related reports were immune from suit.

Allegations that discovery transcripts had been doctored were unsupported and did not disclose any triable issue.

Summary judgment was granted to all defendants and the action was dismissed.

This endorsement addresses a refusals motion where the defendants, Eli Lilly, sought to question the plaintiff, Apotex, regarding communications with the government during Apotex's abbreviated new drug submission (ANDS) process.

Apotex argued that its drug approval process was immune from challenge by Lilly.

The court distinguished between an impermissible collateral attack on Health Canada's regulatory approval and a permissible inquiry into factors that might affect the "start date" for damages under s. 8(1)(a)(ii) of the Patented Medicines (Notice of Compliance) Regulations.

The court found Lilly's request to be probative of a properly pleaded issue concerning the quantum of damages, rather than the validity of the approval itself.

Consequently, the motion was granted, and the question was ordered to be answered.

The College of Psychologists of Ontario brought professional misconduct allegations against a psychologist for practicing outside her authorized area of school psychology and making custody and access recommendations without the father's consent.

The psychologist admitted to the allegations.

The Discipline Committee found her guilty of professional misconduct and ordered a reprimand, completion of an ethics course, and a 12-month mentorship.