Wendy M. Matheson

The defendants brought a motion for summary judgment seeking dismissal of a claim alleging wrongful dismissal, breach of contract, unpaid commissions, discrimination, and various aggravated damages arising from the termination of a financial services associate relationship.

The central issue was whether the plaintiff was an employee or an independent contractor and whether the termination was valid under the governing agreement.

Applying the legal test for employment relationships and considering the contractual terms and surrounding evidence, the court concluded that the plaintiff operated as an independent contractor.

The court further held that the agreement permitted termination where minimum commission levels were not maintained and that the evidentiary record showed the plaintiff earned insufficient commissions.

Claims for unpaid commissions and other damages, including emotional distress and discrimination, were unsupported by evidence.

In a motion arising from an application relating to municipal council conduct, the court addressed refusals made during examinations for discovery and whether the applicant must disclose the identity of individuals financing the litigation.

Respondent councillors had refused to answer questions about matters discussed during closed municipal council meetings under s. 239 of the Municipal Act.

The court held that in camera municipal meetings are not cloaked with confidentiality and that councillors may be required to disclose what transpired, subject only to solicitor-client privilege.

The court also ordered the applicant to disclose the identity of the person or persons who funded the legal retainer, rejecting claims that solicitor-client or litigation privilege protected the identity of the financiers.

The defendants moved to strike or dismiss a civil action alleging malicious prosecution, negligent investigation, and Charter breaches arising from a police detention following an assault investigation.

The plaintiffs commenced their action more than two years after the incident but argued that the limitation period should be extended under the discoverability rule due to alleged ongoing investigations involving police and a regulatory authority.

The court held that the plaintiffs failed to produce evidence linking later investigations to the incident giving rise to the claim or demonstrating that the claim could not reasonably have been discovered earlier.

Applying the two‑year limitation period under the Limitations Act, 2002, the court found the action was commenced out of time.

The defendants’ motion was granted and the action dismissed.

The defendant, the Attorney General of Canada, sought leave to appeal a decision certifying a class action and dismissing a motion to strike the amended statement of claim.

The class action was brought on behalf of Aboriginal children removed from their homes and placed in non-Aboriginal homes in Ontario between 1965 and 1984.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the certification judge's reliance on a 1965 Agreement that was not pleaded as the basis for the alleged fiduciary duty and duty of care, and noting the matter was of sufficient importance.

The applicant sought a declaration that the respondent's new by-law was invalid and that his removal as President under that by-law was void.

The respondent had implemented the new by-law without obtaining the required Ministerial approval under the Canada Corporations Act.

The court found the new by-law invalid and declared the previous 2005 by-law operative.

While the applicant was estopped from challenging actions taken under the shared assumption of the new by-law's validity prior to November 2012, his removal as President occurred after this period and was declared invalid.

The court ordered a fresh election under the 2005 by-law.

Following the dismissal of the plaintiff’s action on summary judgment, the successful defendant sought costs on a partial indemnity basis.

The plaintiff argued the claimed amount was excessive and requested that no costs be ordered, asserting the dispute could have been avoided if the defendant had obtained a current appraisal when the property was sold.

The court held that the core issue had already been litigated and decided against the plaintiff in earlier injunction proceedings and that the plaintiff chose to re-litigate it.

Applying the factors under Rule 57 of the Rules of Civil Procedure, the court found the requested partial indemnity costs reasonable.

Costs were awarded to the defendant in the amount claimed.

Following a status hearing in a civil action, the court addressed costs after the plaintiff’s counsel failed to appear and had not responded to repeated correspondence from defence counsel.

The court noted that the plaintiff’s lawyer provided no explanation for the non‑appearance or lack of communication and that such conduct demonstrated disrespect toward both opposing counsel and the court.

While the court had authority under Rule 48.14 of the Rules of Civil Procedure to dismiss the claim, it declined to do so but warned that the plaintiff’s claim was placed in jeopardy.

Taking into account the defendant’s preparation, travel time, and the possibility that some preparation could be reused if the hearing were renewed, the court reduced the requested amount.

Costs of $4,000 inclusive of disbursements and HST were awarded to the defendant.

The applicant condominium corporation sought an order appointing an arbitrator pursuant to a Complex Reciprocal Agreement.

The respondents agreed on the choice of arbitrator but argued the matters at issue were outside the arbitrator's jurisdiction and that overlapping court proceedings precluded arbitration.

The court applied the competence-competence principle, holding that challenges to an arbitrator's jurisdiction should generally be resolved by the arbitrator first, unless based solely on a question of law or requiring only superficial consideration of documentary evidence.

Finding that at least one issue (allocation of common costs) arguably fell within the arbitrator's jurisdiction, the court granted the application and appointed the arbitrator.

Lawyers sought a declaration that their professional liability insurer owed a duty to defend them in an underlying negligence action arising from a client's failed business investment.

The insurance policy excluded coverage for claims related to investment advice unless the advice was a direct consequence of professional legal services.

Although the pleadings alone could potentially fall within the policy’s coverage for professional services, the policy contained a "notwithstanding" clause permitting the court to consider extrinsic evidence.

The evidence showed the lawyer provided investment advice before any professional legal services were rendered.

The court held the investment advice exclusion applied and the insurer reasonably denied coverage.

The defendants, DaimlerChrysler Services Canada Inc. and Daimler Chrysler Financial Services Canada Inc., brought four motions for summary judgment in four related actions arising from a fatal motor vehicle accident.

They argued the actions against them were statute-barred because they were commenced outside the applicable limitation periods under the Limitations Act, 2002 and the Trustee Act.

The plaintiffs had initially sued the driver as the owner based on a police accident report, only discovering later that DaimlerChrysler was the true owner.

The court dismissed the motions for summary judgment, finding that the plaintiffs exercised reasonable diligence in relying on the police report and the driver's statement of defence admitting ownership.

For the Trustee Act claims, the court found special circumstances existed to allow the claims to proceed despite the expiration of the limitation period, noting the lack of prejudice to DaimlerChrysler.

Following a decision that granted a motion to strike certain affidavit evidence but dismissed an application challenging an arbitral award, both parties sought costs.

The respondent, successful on the application, sought substantial indemnity costs, while the applicant sought costs for its successful motion to strike.

The court declined to award substantial indemnity costs to either party, finding the conduct did not reach the threshold of reprehensible behaviour and there were no settlement offers.

The court held that each side had partial success and that reasonable partial indemnity costs would be similar for both.

As a result, the court ordered that each party bear its own costs.

The plaintiff underwent foot surgery by the defendant orthopedic surgeon, who had diagnosed a ganglion cyst.

During surgery, the defendant discovered a nerve tumour (schwannoma) and proceeded to excise it, causing permanent nerve damage to the plaintiff's foot.

The plaintiff sued for negligence, lack of informed consent, and battery.

The court dismissed the negligence claims regarding assessment and diagnosis but found the defendant liable for lack of informed consent and battery, as the material risks of nerve damage were not disclosed and the plaintiff did not consent to the peripheral nerve surgery.

The court awarded $75,112 in damages to the plaintiff and $5,000 to his wife under the Family Law Act.

Following a prior decision striking the claim against an insurer as an abuse of process, the successful defendant sought costs totaling $10,000 on a partial indemnity basis for the motion, the action, and written submissions.

The plaintiffs argued the award should reflect only the earlier bill of costs relating to the motion and challenged certain items claimed for the broader action as not properly recoverable on a party-and-party basis.

The court considered the range reflected in the competing bills of costs for the motion and the conduct underlying the abuse of process finding.

The court fixed costs for the motion at $5,400, added $300 for written costs submissions and $1,000 for the action.

Total costs were set at $6,700 inclusive of disbursements and HST.

Following a successful motion to set aside a registrar’s order dismissing the action for delay, the court determined the appropriate costs award.

The successful moving party sought full costs of $3,647 plus an additional punitive amount, alleging the opposing party’s conduct caused the dismissal and necessitated the motion.

The responding party argued the amount sought was unreasonable and proposed a substantially lower costs award.

The court accepted that the responding party’s conduct could be considered but declined to award the full amount or punitive costs.

Costs of $3,000 plus HST were ordered payable within 30 days.

The insurer brought a motion under rule 21.01(3) of the Rules of Civil Procedure to dismiss or strike portions of a Toronto action commenced after a prior Newmarket action arising from the same motor vehicle accident.

The plaintiffs had earlier attempted to add insurers as defendants in the Newmarket proceeding under Rule 26 but were directed to bring the motion on notice.

Instead of complying, they commenced a second action in Toronto asserting overlapping claims against the same defendants and the insurer.

The court held that commencing the new action circumvented the procedural requirements of Rule 26 and the court’s supervisory jurisdiction, thereby constituting an abuse of process.

The paragraphs of the Toronto statement of claim asserting claims against the moving insurer were struck without leave to amend.

A family law proceeding addressing child support where the custodial parent sought support and special expenses for a child.

The responding parent argued that religious beliefs exempted him from legal obligations to pay support and provided minimal financial disclosure while claiming near-zero income.

The court rejected pseudo-legal and religious arguments against the authority of Canadian law, referencing Meads v. Meads.

Finding the respondent intentionally unemployed and capable of working, the court imputed income pursuant to s. 19 of the Federal Child Support Guidelines.

Child support and limited s.7 special expenses were ordered based on the imputed income.

The applicant sought to set aside an arbitral award arising from a dispute between two agricultural businesses over the purchase and sale of carrot products conducted under the Fruit and Vegetable Dispute Resolution Corporation arbitration process.

The applicant argued jurisdictional errors, procedural unfairness, improper reliance on mediation materials, lack of arbitrator expertise, and the applicability of the International Commercial Arbitration Act.

The court held that the Arbitration Act, 1991 applied because the dispute involved two Ontario businesses and the arbitration was not international.

The application to set aside the award was statute‑barred because it was brought outside the 30‑day limit under the Arbitration Act and the court had no jurisdiction to extend the time.

In any event, the court found no jurisdictional error or procedural unfairness warranting intervention.

The plaintiff moved to set aside a registrar’s order dismissing the action for delay under Rule 48 of the Rules of Civil Procedure.

The parties had agreed that the defendant would file the trial record and set the action down for trial by a court‑ordered deadline, but the defendant failed to file the trial record, resulting in the dismissal.

The plaintiff promptly brought a motion after learning of the dismissal and explained that the failure arose from the defendant’s omission.

The court held that the plaintiff had provided an acceptable explanation for the delay and that the defendant could not rely on its own failure to comply with the timetable.

Given admissions made by the defendant during discovery regarding the essential elements of the claim, the court found no non‑compensable prejudice and set aside the dismissal order.

The defendant, Atomic Energy of Canada Limited, brought a motion for summary judgment to dismiss the plaintiff's claims for breach of duty of fairness, defamation, negligence, and fraudulent concealment arising from a tendering process.

The court dismissed the motion for summary judgment regarding the duty of fairness and limitation period issues, finding that the voluminous and conflicting evidence required a full trial with viva voce evidence.

However, the court granted summary judgment dismissing the defamation claim, as the plaintiff failed to provide direct evidence of the alleged defamatory statements.

In a child protection proceeding under the Child and Family Services Act, the Children’s Aid Society sought summary judgment making three children Crown wards without parental access.

The court considered Rule 16 of the Family Law Rules governing summary judgment and the statutory requirements for access to Crown wards under s. 59(2.1) of the Act.

Evidence demonstrated a long history of child protection involvement, sexual abuse by the father resulting in incarceration, and expert assessments indicating the mother lacked capacity to meet the children’s needs.

The court found no genuine issue requiring a trial and concluded that parental access would impair the children’s prospects for adoption.

Summary judgment was granted making the children Crown wards with sibling access but without parental access.