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Apr
18
2019

Reasons for Decision Incomplete

Rinc Consulting Inc. v. Grant Thorton LLP 2019 Ont SCJ

Reasons for decision were given in an action. The unsuccessful party felt that the reasons did not cover all of the issues that it had raised and brought a motion under Rule 59.06 to have the judge deliver his decision on these matters. This is one way to do it. The other way is to get the consent of the other party to send a letter to the judge bringing the omissions to his or her attention such that a formal motion would not be necessary. The judge has full jurisdiction to amend a decision before the formal order or judgment is taken out. A judge has jurisdiction under Rule 59.06 if “an inadvertent failure to deal with the claim led to an error in expressing my manifest intention.” As to the merits, the judge had dismissed the action, even though a breach of contract had been proven, because the plaintiff did not prove its damages. The judge refused to award nominal damages because he felt that the theory of damages was based upon “fictitious losses.” The judge dismissed the claim for other special damages because the invoices supplied as proof of those damages were redacted, which precluded a meaningful review of both the type of services performed and whether those services were incurred as a result of the breach of contract.

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Apr
18
2019

Trust Claims

The Guarantee Company of North America v. Royal Bank of Canada 2019 Ont C.A.

The Construction Act establishes a deemed statutory trust. The Bankruptcy and Insolvency Act sets out a distribution scheme for an insolvent person. Beneficiaries of the deemed trust have always attempted to take priority over the creditors of the bankrupt by claiming that trust money does not form part of the estate. The courts have held that a deemed trust has priority if it meets three certainties under the common law: certainties of object, subject matter, and intention. The trial judge had held that the statutory trust did not meet the certainty of object and the Court of Appeal overruled. Commingling of funds did not destroy that object because the receiver had kept good accounting records and knew exactly what the trust amounts were.

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Apr
18
2019

Limitations

Western Life Assurance Company v. Penttila 2019 Ont SCJ (Div Ct)

This is another case on when it is “appropriate” under section 5(1)(a)(iv) of the Limitations Act for a plaintiff to commence an action. In this case, the court held that a limitation period did not start when disability benefits were denied, but when the appeal process to the insurer was completed. The court also listed the rules in determining whether it was legally appropriate to wait to commence an action.

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Apr
18
2019

Expert Report

Peller v. Ogilvie-Harris 2018 Ont SCJ

To be valid, an expert report must opine on the key issues on which testimony is to be given. The testimony does not have to be within the four corners of the report, but must articulate the opinion and the reasons for it. A reader cannot be left to guess about what the expert means. In this case, the report did not opine on causation and the expert was not allowed to do so in testimony.

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Apr
18
2019

Undertakings & Refusals

Maxrelco Immeubles Inc. Jim Pattison Industries Ltd. 2017 Ont SCJ

The judge held the following:

1. The mere consent by a party to setting the dates for trial is not a consent under Rule 48.04(1) to place the action on the trial list. Accordingly, the party consenting to dates may still bring motions that are unavailable to the party setting down the action for trial.

2. A right to a follow-up discovery, oral or written, after receiving answers on undertakings or refusals is not absolute. The court must determine whether, if the answers had been given at the discovery itself, the opposing party would have been able to ask follow-up questions.

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Apr
18
2019

Form of Order

Schnarr v. Blue Mountain Resorts Limited 2018 Ont C.A.

The court noted that an order reflects the ultimate decision, not the reasons for it. Conclusions regarding issues are not to be in the order, absent a request for a declaration. Further, when costs are determined on a different date than the merits, there should be two orders, each with the appropriate date: one relating to the merits and the other relating to costs. This decision related to an appeal in the Court of Appeal, but would seemingly apply to a trial decision and order(s).

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Apr
18
2019

Default Judgment

1705371 Ontario Ltd. v. Leeds Contracting Restoration Inc. 2018 Ont SCJ

Under the Rules, a defendant who does not defend is deemed to admit the allegations in the statement of claim. However, default judgment on some claims cannot be dealt with by a Registrar and requests for default judgment need to be brought before a judge on motion. The judge needs to view the materials in this situation to determine, even if the allegations are true, whether there are sufficient facts on which to impose liability and damages. Normally, one does not have to serve the defendant with the motion for judgment. In this case, the judge ordered that the plaintiff serve the motion, not because it is mandatory under the Rules, but because there have been too many instances in which a motion is held, judgment is granted, and then the defendant moves to set aside the judgment. This is a waste of judicial resources.

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Apr
18
2019

Pierringer Agreement

IPEX Inc. AT Plastics Inc. 2017 ONT SCJ (MC)

In this type of settlement agreement, a plaintiff settles with one defendant and continues its action against the other. In this case, the second defendant wanted to view the settlement agreement; in particular, since most of the agreement had already been disclosed, the defendant wanted to know the quantum of the settlement. The Master refused, on the basis of settlement privilege, relying on the 2013 Supreme Court of Canada decision in Sable Offshore Energy. The Master noted that the quantum would only be divulged after the case had been tried and a decision rendered to ensure that the plaintiff did not receive an amount that was more than its actual damages.

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Apr
18
2019

Harassment

Merrifield v. Canada 2019 Ont C.A.

There is no free standing tort of harassment. Actionable conduct must fit within the tort of intentional infliction of mental suffering.

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Apr
05
2019

Pre-Trial Certificate

Kampers v. York Fire & Casualty Insurance Company 2019 Ont CA

Rule 50.08(3) requires a pre-trial judge to deliver a pre-trial conference report and counsel to certify on the copy of the report he or she understands the contents of the report and acknowledges the obligation to be ready to proceed on the date fixed for the trial or hearing. In this case, counsel had agreed at the pre-trial that Ontario law, rather than Nevada law, applied to the dispute. In a subsequent pre-trial, plaintiff’s counsel realised he had been in error and indicated that he would take the position that Nevada law applied. The Court of Appeal upheld the motion judge’s ruling that signing a pre-trial certificate was not the equivalent of entering into a litigation agreement; the plaintiff had made an admission, but, under the Rules, admissions could be withdrawn and, in this case, the admission was allowed to be withdrawn. The Court noted that the signing of a certificate merely acknowledges the obligation to be ready to proceed, nothing more.

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