Victoria R. Chiappetta

A commercial tenant brought an action alleging overpayment of additional rent and damages after disputes with its landlord concerning taxes, maintenance, and insurance charges under a net lease.

The landlord counterclaimed for unpaid rent and interest, relying in part on recalculated square footage measurements conducted years into the lease.

The court held that the landlord could not retroactively recalculate rent based on new measurements taken nine years into a ten‑year lease, and that the contractual square footage originally used by the parties governed.

The tenant failed to prove any improper TMI charges, while the landlord established entitlement to unpaid additional rent based on the original measurements.

Judgment was granted on the counterclaim for $118,761.68 plus interest accrued on funds paid into court.

Insurers moved for summary judgment dismissing claims against them on the basis that an automobile insurance policy had been properly terminated prior to an accident involving an uninsured motorist.

The court held that the insurer complied with the statutory requirements for delivery of a notice of cancellation under s. 12 of the Statutory Conditions – Automobile Insurance, as the notice was sent by registered mail to the insured’s correct address.

However, a genuine issue requiring trial remained regarding compliance with s. 11 governing effective termination, specifically whether the insurer’s attempted withdrawal of double the monthly premium created the payment default that triggered cancellation.

The court ordered production of banking records to determine whether sufficient funds existed to cover the agreed monthly premium and service charge.

Summary judgment was granted in part and the remaining issue was adjourned pending further evidence.

The representative plaintiff appealed an order of a Master dismissing a motion for production of communications between a distressed company and its financial advisor and between the company and government actors.

The court considered whether solicitor‑client privilege extended to communications with a financial advisor who might have served as a CCAA monitor, and whether common interest privilege protected communications with federal and provincial governments during restructuring negotiations.

The court held that the financial advisor’s role was integral to the legal advice provided and that the communications were subject to solicitor‑client privilege.

The court also upheld the Master’s finding that communications shared with governments during negotiations to secure restructuring funding were protected by common interest privilege.

Finding no palpable and overriding error in the Master’s factual determinations, the appeal was dismissed.

A dispute arose over entitlement to a $75,000 deposit following the failed closing of a residential real estate transaction governed by an Agreement of Purchase and Sale.

The contractual closing date passed without either party being ready to close, leaving the agreement alive and permitting either party to re‑establish time of the essence by fixing a reasonable new closing date.

The purchasers subsequently declared they would not proceed and sought a mutual release, asserting the vendor was in breach.

The court held the purchasers repudiated the agreement without first setting a new closing date or reinstating time of the essence.

The vendor later properly re‑established a closing date and tendered; the purchasers refused the tender.

Relief from forfeiture was denied and the deposit was ordered released to the vendor.

The defendant brought a motion for summary judgment seeking dismissal of a motor vehicle negligence action as statute-barred under the Limitations Act, 2002.

The central issue was when the plaintiff discovered or ought to have discovered that her injuries met the statutory threshold under s. 266(1) of the Insurance Act, which would permit recovery of damages for bodily injury.

The court reviewed extensive and conflicting medical evidence regarding the seriousness and permanence of the plaintiff’s injuries and whether objective evidence existed before April 22, 2007 establishing a threshold claim exceeding the statutory deductible.

Applying the framework in Hryniak v. Mauldin, the court concluded that determining discoverability would require weighing complex medical evidence and credibility issues inappropriate for summary judgment.

A genuine issue requiring trial existed regarding when the plaintiff’s injuries became objectively discoverable as meeting the threshold.

The plaintiff broadcaster sought partial summary judgment to enforce payment of two dishonoured post‑dated cheques issued by the defendant in connection with a sports broadcasting agreement.

The defendant argued that equitable set‑off should apply because the cheques were issued for services to be rendered and the dispute did not involve international commerce.

The court held that under the Bills of Exchange Act equitable set‑off is not available as a defence to an action on a dishonoured cheque, and that the rule applies regardless of whether the transaction involves international trade or services yet to be performed.

Partial summary judgment was granted for the value of the dishonoured cheques.

However, because the defendant’s counterclaim raised triable issues, execution of the judgment was stayed on condition that the defendant pay the judgment amount with interest into court.

A third party defendant brought a motion for summary judgment seeking dismissal of negligence allegations in a third party claim arising from a water main failure involving high density polyethylene pipe.

The court applied the framework for summary judgment articulated in Hryniak v. Mauldin and considered whether the evidentiary record demonstrated a genuine issue requiring a trial.

Several negligence allegations relating to manufacturing defects, inspection failures, and product design were dismissed on partial summary judgment.

However, claims alleging that the pipe may have been damaged while in the moving party’s care, custody, or control were allowed to proceed because causation remained unresolved among multiple parties who handled the pipe.

The court concluded that determining which party caused the fracture required a full evidentiary record and credibility findings best addressed at trial.

The defendant municipality appealed a master's order granting leave to amend a statement of claim to add additional plaintiffs and new causes of action relating to a municipal waste services tender process.

The municipality argued the proposed claims were statute-barred under the Limitations Act, 2002 because the discoverability date arose when the first tender was cancelled.

The court held that it was arguable the first and second tenders formed a single continuous procurement process, meaning the claim might not have been discoverable until the cancellation of the second tender.

Because the proposed amendments were not clearly statute-barred and therefore not plainly impossible of success, the master's decision permitting the amendments was upheld.

Appeal from an arbitral decision concerning a priority dispute between insurers over statutory accident benefits.

The issue was when the respondent insurer received a “completed application” triggering the 90‑day notice period under s. 3(1) of O. Reg. 283/95 (Disputes Between Insurers).

The arbitrator held that the application became functionally complete when full spousal insurance details were received months later.

The court held that the application became functionally adequate earlier, once the insurer obtained sufficient information to begin reasonable investigations into potential priority insurers.

Because notice was given more than 90 days after that point and the savings provision in s. 3(2) did not apply, the appeal was allowed and the arbitration award set aside.

The plaintiffs moved for summary judgment to enforce two promissory notes issued in 2007 and 2008.

The defendants ultimately advised shortly before the hearing that they would not oppose the motion, despite failing to comply with an earlier court-ordered timetable for responding materials and failing to communicate their position until the last moment.

The court held that this conduct was unreasonable and amounted to reprehensible litigation behaviour within the meaning of Rule 20.06 of the Rules of Civil Procedure.

Summary judgment was granted and the court awarded costs to the plaintiffs on a substantial indemnity basis.

The defendants’ late communication and failure to follow procedural directions justified elevated costs as a sanction.

The plaintiff alleged breach of contract and bad faith after terminating a lease and selling its dry cleaning business back to the defendant for $35,000.

The plaintiff argued it had been deceived into relinquishing its right of first refusal under the lease because the defendant falsely represented an intention to operate the business personally, but then resold it shortly afterward to a third party for $225,000.

The court held that the plaintiff failed to prove on a balance of probabilities that the defendant misrepresented its intentions or breached a duty of good faith during negotiations.

Evidence from an independent purchaser supported the defendant’s explanation that the subsequent sale arose opportunistically after the lease ended.

Although the court commented that damages could have been approximately $175,000–$190,000 if liability were established, the claim was dismissed.

Following the dismissal of a motion for summary judgment, two self‑represented individual defendants sought costs totalling $21,605.60 for their work responding to the motion.

The court reviewed the principles governing costs awards to self‑represented litigants, including the requirement that the litigant demonstrate an opportunity cost by foregoing remunerative activity while performing work normally done by counsel.

The defendants provided no evidence that they sacrificed remunerative work to prepare their materials.

As a result, they were not entitled to legal fees calculated in the same manner as counsel.

The court allowed only a modest amount for reasonable disbursements and fixed costs at $300 payable by the plaintiff.

The defendants brought a motion to stay the plaintiffs’ civil action on the basis of an arbitration clause contained in a shareholders agreement executed as part of a share purchase transaction.

The plaintiffs alleged misrepresentations inducing the share purchase and sought declarations regarding share value, rescission of the transaction, and damages including wrongful dismissal.

The court held that the dispute was not clearly outside the scope of the arbitration clause, which broadly applied to disputes relating to interpretation or implementation of the shareholders agreement.

Applying s. 7(1) of the Arbitration Act, 1991 and appellate guidance on deference to arbitration agreements, the court stayed the claims that arguably required interpretation of the shareholders agreement.

The wrongful dismissal claim arising from a separate employment agreement was not stayed.

The trustee of a deceased lawyer’s estate brought a motion for summary judgment seeking dismissal of a third party negligence claim arising from mortgage transactions handled by the deceased solicitor.

The estate argued the claim was barred by the two‑year limitation period under s. 38(3) of the Trustee Act, which governs tort claims by or against estates.

The responding party argued that the limitation period should be tolled due to fraudulent concealment or, alternatively, special circumstances.

The court held that while a solicitor‑client relationship constituted a special relationship, the evidence demonstrated negligence rather than unconscionable conduct required to establish fraudulent concealment.

The doctrine of special circumstances could not be used to commence a new claim after expiry of the limitation period, and the third party claim against the estate was dismissed.

The plaintiff employer moved for default judgment against two former employee accountants alleged to have misappropriated corporate funds over several years.

Evidence from an internal investigation and a forensic consulting report established that the defendants conducted numerous fraudulent withdrawals and falsified accounting records.

The court held the pleadings and affidavit evidence established liability for conversion, fraud, and breach of fiduciary duty and granted judgment for proven losses totaling over $1.96 million, but declined to include certain suspicious transactions that could not be adequately traced to the defendants.

Punitive damages were awarded due to the deliberate and prolonged abuse of positions of trust, though the amount sought was reduced after considering the defendants’ gambling disorder evidence, ongoing criminal proceedings, and proportionality.

The court also awarded investigative costs and substantial indemnity legal costs.

The applicant insurer appealed an arbitrator’s decision barring its statutory loss transfer claim under s. 275 of the Insurance Act on the basis of the equitable doctrine of laches due to delayed notice.

The court held that loss transfer rights under s. 275 are purely statutory and do not attract equitable relief, making the doctrine of laches inapplicable.

Even if laches could apply, the arbitrator’s finding was unreasonable because mere delay without acquiescence or demonstrated prejudice cannot establish the defence.

The respondent failed to prove that the delay impaired its investigation or caused prejudice.

The appeal was allowed and the applicant insurer was permitted to pursue the loss transfer claim.

The moving defendants sought summary judgment dismissing liability claims arising from a chain-reaction rear-end motor vehicle accident.

They argued there was no genuine issue requiring a trial regarding their liability.

The court found conflicting evidence concerning how the collision occurred, including discrepancies relating to lane changes and cell phone usage prior to the accident.

Credibility issues affecting both drivers could not be resolved on the written record.

The court held that a full appreciation of the evidence required oral testimony at trial and dismissed the motion.

The defendants brought a motion under Rule 21.01 of the Rules of Civil Procedure to strike a statement of claim alleging negligence, breach of s. 7 of the Canadian Charter of Rights and Freedoms, and misfeasance in public office arising from a drive‑by shooting committed by a third party.

The plaintiffs alleged that police had prior intelligence about the shooter and owed a private law duty of care to protect a narrow class of potential victims.

The court held that the pleadings did not establish a special relationship of proximity between the police and the victim sufficient to create a private law duty of care, distinguishing the case from Doe v. Metropolitan Toronto Commissioners of Police.

The Charter claim failed because the Charter does not impose a positive obligation on police to prevent harm, and the pleadings did not establish the elements of misfeasance in public office.

The Fresh as Amended Statement of Claim was struck with leave to amend.

The applicant sought a declaration that he was entitled to a $1,000,000 critical illness benefit under a policy after being diagnosed with papillary thyroid cancer.

The insurer denied coverage relying on a policy exception excluding benefits where, within 90 days of the policy’s effective date, the insured experienced signs, symptoms, or investigations that led to a cancer diagnosis regardless of when the diagnosis was made.

The court interpreted the exclusion clause according to established principles of insurance contract interpretation and held the language was clear and unambiguous.

The discovery of thyroid nodules during a carotid Doppler test within the 90‑day window constituted a sign that ultimately led to the cancer diagnosis months later.

The insurer therefore properly relied on the exclusion clause to deny the claim.

The plaintiff brought a motion for summary judgment in a wrongful dismissal action seeking damages equivalent to 24 months’ reasonable notice after being dismissed without cause following more than 22 years of employment.

The defendant argued that the notice period should be between 12 and 16 months and that the plaintiff failed to reasonably mitigate her damages.

The court held that the motion record was inadequate to resolve conflicting evidence regarding the plaintiff’s mitigation efforts and the availability of comparable employment opportunities, both of which are relevant to determining reasonable notice under the Bardal factors.

Because credibility assessments and fuller evidence were required, the court found genuine issues requiring a trial.

The motion for summary judgment was dismissed and the matter was scheduled for a two‑day trial.