T. R. Lofchik

The defendants sought leave to appeal an order requiring the corporate defendant to pay interim legal fees and disbursements of the plaintiffs in an oppression remedy action under s. 249(4) of the Ontario Business Corporations Act.

The motion judge had ordered payment of all past and future legal fees to create a level playing field between minority shareholders and the corporation that had funded the defence.

The court held that the motion judge properly applied the governing test from Alles v. Maurice regarding merit of the claim and the complainants’ financial inability to pursue the action without assistance.

However, the court found a serious question regarding the correctness of awarding 100% reimbursement of past fees and unlimited future costs, noting that prior authorities typically limit interim cost awards to specific stages or purposes.

Because conflicting approaches existed and the issue was of broader importance for oppression remedy litigation, leave to appeal was granted and the underlying order was stayed pending appeal.

The moving defendants, a lawyer and law firm acting for a mortgagee in a mortgage enforcement proceeding, brought a motion under Rule 21.01 of the Rules of Civil Procedure to strike portions of the amended statement of claim alleging improper withholding of surplus proceeds following a power of sale.

The plaintiff alleged the lawyers attempted to extort a release by withholding trust funds and sought damages for abuse of process, negligence, and breach of ethical duties.

The court held that opposing counsel owe no duty of care or fiduciary duty to an adverse party and that alleged breaches of professional or ethical duties are owed to the court and the governing law society, not to opposing litigants.

As a result, the claims disclosed no reasonable cause of action and were frivolous and vexatious.

The impugned portions of the claim against the lawyer and law firm were struck.

Property owners brought an application seeking a declaration that they could enforce obligations under a private road maintenance agreement and compel mediation or arbitration regarding disputes about maintenance.

The respondents argued there was no privity of contract because the applicants were not parties to the same agreement.

The court held that the developer’s scheme of entering identical agreements with each purchaser, combined with an enurement clause binding successors and assigns, demonstrated an intention that the purchasers benefit from and enforce the obligations relating to road maintenance.

Alternatively, the court found the circumstances satisfied the third‑party beneficiary test articulated by the Supreme Court of Canada.

The applicants were declared entitled to rely on the agreement and to require mediation or arbitration concerning road maintenance disputes.

The defendant brought a motion for summary judgment seeking dismissal of the action against her.

The plaintiff had advanced $250,000 to a co-defendant for investment purposes and alleged losses after the funds were traded and lost.

The moving defendant was a joint holder of a bank account through which some of the funds briefly passed, but there was no evidence she participated in the transfers, trading activity, or received any benefit from the funds.

The court applied the summary judgment framework under Rule 20.04 and the “full appreciation test” from Combined Air Mechanical Services v. Flesch.

Finding no evidence supporting liability or a viable tracing claim, and determining the Fraudulent Conveyances Act claim was premature, the court held there was no genuine issue requiring a trial and dismissed the action against the moving defendant.

The accused brought a constitutional application challenging the exclusion of common-law spouses from the spousal incompetency rule in s. 4 of the Canada Evidence Act and the related common law.

The court considered whether the distinction between married spouses and common-law partners violated s. 15(1) of the Canadian Charter of Rights and Freedoms.

Applying evolving equality jurisprudence following Quebec (Attorney General) v. A., the court held that denying common-law partners the protections afforded to married spouses constituted discrimination based on marital status.

The court further concluded that the infringement was not justified under s. 1 of the Charter because excluding common-law spouses was not rationally connected to the objective of protecting conjugal confidences and marital harmony.

The appropriate remedy was to read common-law spouses into s. 4 of the Canada Evidence Act and the common law spousal incompetence rule.

The Crown brought a motion seeking to introduce evidence from several witnesses that would disclose prior criminal conduct and other discreditable acts by the accused in a murder prosecution.

The Crown argued the evidence was relevant to motive, the relationship between the accused and witnesses, and consciousness of guilt, including allegations that the accused plotted to eliminate a key witness.

The court applied the established rule that evidence of disreputable conduct is presumptively inadmissible unless its probative value outweighs its prejudicial effect.

The court held that most of the proposed evidence formed part of the narrative explaining the motive and relationships surrounding the alleged homicide and was therefore admissible with limiting instructions.

Certain evidence, including alleged assaults on a spouse, buried firearms, and an ante‑mortem statement attributed to the deceased, was excluded as marginally relevant and of questionable probative value.

The Crown sought a ruling that statements made by the accused to police during two interviews in 2006 were voluntary and admissible at trial.

The defence argued the statements were induced by promises of protection for the accused’s family and that the failure to provide Charter cautions violated ss. 7 and 10(b).

The court held the accused was not detained in relation to the investigation and that the interviews were investigative in nature while he was incarcerated on unrelated matters.

Applying the legal detention test, the court found no inducements or promises of favour tied to providing information.

The statements were therefore found to be voluntary and admissible.

Following a trial involving a dispute over a claimed leasehold interest and alleged obligations to improve leased premises, the plaintiffs’ claim was dismissed and the defendants succeeded on a counterclaim for rent arrears in the amount of $120,000 plus prejudgment interest.

The successful defendants sought recovery of legal costs on a partial indemnity basis.

Applying the factors under Rule 57.01(1) of the Rules of Civil Procedure, the court assessed the reasonableness of the claimed fees and disbursements.

The court reduced amounts relating to certain research, an unsuccessful motion for possession, and certain disbursements.

Costs were fixed at $33,900 in fees plus $2,681.43 in disbursements inclusive of tax.

Following dismissal of the plaintiff’s $4.5 million action alleging that corporate sponsors of a soccer association owed a duty to ensure adequate insurance coverage for players, the court determined the issue of costs.

The successful defendants sought substantial partial indemnity costs following a Rule 21 motion that terminated the claim at an early stage.

The court held that while the defendants were entitled to significant costs, the hours claimed by counsel were excessive and involved duplication of work.

Considering the factors under Rule 57.01 of the Rules of Civil Procedure, the court reduced the requested amounts and fixed reasonable costs payable to the successful defendants.

Following the dismissal of an action against an insurer on summary judgment, the court determined the appropriate costs award.

The plaintiffs had advanced a novel negligence claim alleging the insurer owed a duty of care to ensure adequate insurance coverage for a sports association member who became quadriplegic while playing soccer.

After the action against the insurer was dismissed, the insurer sought costs.

Applying the factors in rule 57.01 of the Rules of Civil Procedure, the court reduced the amounts claimed due to duplication of effort and excessive time entries but held that the successful defendant was entitled to partial indemnity costs.

The plaintiffs alleged they had entered into a four-year lease of rural property to operate a horse boarding and breeding business and claimed the landlords were obliged to repair and complete the barn and related facilities before rent became payable.

They sought damages for lost profits after the property allegedly remained unusable.

The defendants denied any such agreement, asserting that only limited draft leases existed and that the only executed lease concerned the residential portion of the property.

The court found no agreement requiring the defendants to complete repairs and held that the draft leases, which imposed repair obligations on the tenants and contemplated shorter terms, were the best evidence of the parties’ intentions.

The plaintiffs’ claim was dismissed, possession was ordered to the defendant companies, and judgment was granted on the counterclaim for unpaid rent relating to the house lease.

The insurer brought a motion for summary judgment seeking dismissal of claims alleging that it negligently provided inadequate insurance coverage for members of a sports association.

The plaintiffs argued that the insurer owed a duty to advise that the policy limits were insufficient and should have refused to offer the policy.

The court held that where an experienced broker represents the insured, the insurer owes no direct advisory duty to the insured beyond issuing the policy requested through the broker.

As the evidentiary record showed no direct advisory relationship and the plaintiffs failed to provide evidence supporting the alleged duty, there was no genuine issue requiring a trial.

The defendants, corporate sponsors of a soccer organization, brought a motion under rules 21.01(1)(b) and 25.11 of the Rules of Civil Procedure to strike a negligence claim arising from a catastrophic soccer injury.

The plaintiff alleged the sponsors had a duty of care to ensure that the organization maintained adequate insurance coverage for players.

The court held that mere financial sponsorship and advertising relationships do not create a proximate relationship giving rise to a duty of care to participants.

The pleadings failed to establish reliance, proximity, or control over the event or insurance arrangements.

The statement of claim disclosed no reasonable cause of action and was struck.

An extradition judge considered whether the evidence contained in the certified record of the case established conduct that would justify committal for trial in Canada under s. 29(1)(a) of the Extradition Act.

The requesting state alleged that the respondent arranged for the arson of a furniture store to collect insurance proceeds and later filed an insurance claim.

Applying the evidentiary framework from Ferras, the court held that extradition evidence may be disregarded only if manifestly unreliable or defective and that weaknesses in accomplice testimony did not meet that threshold.

The court found sufficient evidence for committal on the parallel Canadian offences of arson for fraudulent purpose, unauthorized possession of a firearm, and attempted fraud, but not fraud or obstruction of justice.

The respondent was ordered committed into custody to await surrender on the supported offences.

An application was brought seeking a declaration interpreting a municipal zoning by-law to determine whether an existing church could expand its use onto an adjacent parcel of agricultural land once the parcels were merged.

The municipality argued that the by-law permitted only “existing churches” on lands where such uses existed at the time the by-law was passed, thereby preventing expansion onto new lots.

Applying the modern principle of statutory interpretation, the court examined the wording, purpose, and scheme of the by-law.

The court held that the exemption for “existing churches” applied to the building rather than to a specific lot and that the by-law did not expressly restrict expansion onto adjoining lands.

A declaration was granted permitting the merged lands to be used for church purposes.

Residual beneficiaries brought a motion for directions in a contested passing of accounts relating to a large estate.

They alleged that estate trustees had taken excessive executor’s compensation and sought review and possible repayment.

A former trustee sought to add an accounting firm as a party on the basis that the firm had received a substantial portion of the executor compensation through a partnership arrangement and might be vicariously liable under the Partnerships Act if the compensation was excessive.

The court held that there was a triable issue regarding whether the partner acted within the scope of partnership business or with the firm’s authorization, and that the firm’s presence was necessary to adjudicate the issues effectively.

The firm was therefore added as a party and a procedural timetable was established for discovery and trial of the passing of accounts.

In an extradition proceeding, the person sought applied to introduce additional evidence challenging the reliability of evidence contained in the requesting state’s record of the case.

The court considered the limited role of an extradition judge under the Extradition Act and the Supreme Court’s guidance in Ferras requiring only a limited qualitative assessment of evidence.

The court held that most of the proposed evidence merely challenged the credibility of cooperating co‑conspirators and therefore went to weight rather than admissibility.

Such evidence could not render the requesting state’s evidence manifestly unreliable for the purposes of the committal test under s. 29(1).

Only evidence relating to contradictory statements about citizenship, relevant to the obstruction of justice allegation, was permitted to be introduced.

The Crown applied to have the offender declared a dangerous offender under s. 753 of the Criminal Code following convictions for aggravated assault, assault causing bodily harm, assault with a weapon, threatening death, obstruction of justice, weapons offences, and multiple breaches of probation.

The court reviewed the offender’s history of violent assaults and expert psychiatric and psychological evidence assessing the risk of violent recidivism.

Although the offender demonstrated anti‑social personality traits and a moderate risk of violent reoffending, the court found the offences did not establish the level of intractable pattern of behaviour required for a dangerous offender designation.

Applying conventional sentencing principles including denunciation, deterrence, rehabilitation, and the totality principle, the court imposed a determinate penitentiary sentence.

Credit for pre‑sentence custody was reduced from the usual 2:1 given the offender’s risk profile and incarceration history.

A defendant brought a motion for summary judgment dismissing a personal injury action arising from a roofer’s fall from a neighbouring property onto a metal fence.

The plaintiff alleged that the fence constituted a dangerous trap and that the occupier breached duties under the Occupiers’ Liability Act and a municipal fence by-law.

The court applied the summary judgment framework and concluded there was no genuine issue requiring a trial.

It held that the fence was visible, not a hidden danger, and that the risk of a person falling from a neighbour’s roof onto the fence was not reasonably foreseeable.

Summary judgment was granted dismissing the claim against the moving defendant.