The Ontario Court of Appeal in Butera v. Chown, Cairns LLP, 2017 ONCA 783, recently overturned an award of partial summary judgment in a professional negligence action and provided guidance on the appropriate circumstances in which partial summary judgment motions should be brought. In the original action, the plaintiffs brought an action against various Mitsubishi companies after their Mitsubishi dealership franchise failed, claiming damages for breach of contract, misrepresentation, negligence and breaches of the Arthur Wishart Act. The original action was dismissed on summary judgment because the applicable two-year limitation period had passed. The plaintiffs were also ordered to pay $150,000 in costs for both the action and the summary judgment motion. The plaintiffs appealed the summary judgment motion decision and argued that a six-year limitation period was applicable notwithstanding that they had conceded at the motion that the applicable limitation period was two years. The appeal was dismissed. The plaintiffs then brought the subject action against their former lawyers for negligence. The plaintiffs claimed damages for … Read More
Summary Judgment Granted in Multiple Proceedings Surrounding Enforcement of Italian Judgment
The case of King v Lang Michener, 2017 ONSC 1917 (one of three related actions), began with a transaction that went awry. The Plaintiff, Gregory King, a lawyer at Aylesworth and later Gowling Lafleur Henderson LLP, acted in a transaction relating to a new hotel in China with an Italian company, Sincies Chiementin SpA (“Sincies”), and various other foreign individuals and businesses. Mr. King received a 5% interest in the hotel, and Aylesworth was to receive payment for legal fees. Sincies went bankrupt, and one of its assets, a $600,000.00 USD deposit, vanished. Sincies’ trustee in bankruptcy eventually sued Mr. King, among others, in Italy, to try to recover the money. Mr. King did not defend the Italian proceedings. The Italian court ruled against him, and ordered him to pay the deposit. Mr. King did not pay the judgment on the grounds that the Italian court lacked jurisdiction. Sincies’ trustee then … Read More
Insurance Coverage For Cyber Crime: The Brick v. Chubb
In the recent case of The Brick v. Chubb Insurance, the Alberta Court of Queens Bench held that the plaintiff’s commercial crime policy did not cover the money lost by the plaintiff as a result of a social engineering fraud. The plaintiff had been contacted by unknown persons pretending to be one of the plaintiff’s service providers, and requested banking information from their accounts payable department, which ultimately led to the plaintiff changing their internal records and sending of payments to the fraudsters’ own account instead of their service provider. The plaintiff sought coverage for the losses, and the insurer denied coverage. The court noted that the policy only applied to fund transfers made “without the insured’s knowledge or consent”. The plaintiff argued that they did not consent, since their actions were induced by the fraudulent correspondence. The insurer argued that the policy did not require consent to be “informed” or otherwise … Read More
Restriction on Use of Summary Judgment Where Key Issues Turn on Credibility
Since the Supreme Court of Canada’s landmark decision in Hryniak v Mauldin, 2014 SCC 7, summary judgment has been lauded as an effective tool to enhance access to justice and achieve cost-effective results for litigants. Indeed, in recent years, summary judgment motions have become more common, making trials in civil litigation a rare occurrence. But has the pendulum begun to swing now in the opposite direction? The Court of Appeal’s recent decision in Lesenko v Guerette, 2017 ONCA 522, challenges the limits of summary judgment, and outlines that it may not be appropriate in cases where key issues turn on the credibility of the parties. In Lesenko, a husband, his wife, and his sister decided to sell their respective homes and buy a house together. The sister sold her home, and some of those sale proceeds went to pay for the entire purchase price of the subject property. The sister … Read More
Court of Appeal Emphasizes Confidence in Fact Finding on the Record for Summary Judgment
In Meehan v Good, 2017 ONCA 103, the Court of Appeal allowed the appeal of the plaintiffs of the dismissal of their claims by summary judgment against their former lawyer, Mr. Cardill. The motion judge had determined that the subject retainer was only with respect to assessment of the accounts of their earlier former lawyer, Mr. Good, and not any possible negligence action against Mr. Good, and thus there was no genuine issue whether Mr. Cardill owed the plaintiffs a duty of care to advise them about the limitation period in relation to a possible negligence action against Mr. Good. The Court of Appeal held that the motion judge’s analysis focused narrowly on the written retainer agreement, and not, as is required when determining if a lawyer owes a duty of care to a client, examining all the surrounding circumstances that define the lawyer and client relationship, when, as was pleaded here that … Read More
Sabrina Singh Wins Precedent Court of Appeal Ruling Affirming Parties Obligations in Summary Judgment Proceedings
Many people believe that if they have a legal case, they are entitled to their “day in court” with a full trial and a chance to tell their story in front of a judge and/or a jury. They may find out however that their case will be decided based on documents, and lawyers making arguments on a “summary judgment motion”. The Supreme Court of Canada recently decided that to save time and expense, this process should be used more, and as lawyers we’re seeing more and more cases being dealt with in this way. If a case or issue really requires a trial (e.g., where credibility of witnesses is critical), the court will permit the matter to go to a full trial. Because these types of motions determine substantive issues in a case, the law requires all parties to “put their best foot forward” and “lead trump or risk losing”. … Read More
Ontario Court of Appeal Finds Misrepresentation and Breaches of OSC Rulings Against Trump Hotel Developer
In the recently released decision of Singh v. Trump, the Ontario Court of Appeal has reversed a lower court decision and granted summary judgment in favour of two investors in the Trump International Hotel & Tower in Toronto, on the basis that the developer made representations to purchasers that purchasing the hotel condominium units would result in highly profitable rental income. The court found those representations to have been false, and that making those representations was in contravention of a previous Ontario Securities Commission ruling which prohibited the developer from marketing the hotel condominium units as a profit-making investment. The Court of Appeal also reversed the motion judge’s dismissal of claims of oppression, collusion, and breaches of fiduciary duty as against current US presidential candidate Donald Trump and other invidiual defendants, on the basis that those issues were not properly put before the summary judgment motion judge at the motion. The … Read More
Toronto Lawyers for Victims of Investment Fraud: When Investing in a Toronto Business Goes Bad
A bad investment may not be the result of market fluctuations. A false representation inducing and leading to an investment loss may be actionable at law. Often there is a promised high-yield on an investment in a company, project or property. Sometimes a loss occurs from a scheme where there is no intention by those entrusted with an investment to make the promised purchase or transfer. In Ontario, civil lawsuits for the victims of investment fraud have often been framed as claims for deceit, fraudulent misrepresentation, civil conspiracy, breach of contract, unjust enrichment and restitution. Increasingly though, plaintiffs in lawsuits simply claim damages for losses arising directly from the tort of civil fraud. The leading case on civil fraud in Canada is the Supreme Court of Canada decision in 2014 in Hryniak v. Mauldin, 2014 SCC 7, and in that case civil fraud is defined this way “… the tort of … Read More
Vicarious Liability for Vehicle Owners under HTA Based on Possession, not Operation
The Superior Court has confirmed that a vehicle owner is vicariously liable for the negligence of another driver under the Highway Traffic Act, even if the owner consents only to the possession of the vehicle, and not its operation on the highway. In Fernandes v. Araujo et al., the owner’s insurer brought a motion for summary judgment stating that the owner was not vicariously liable for the driver’s negligence as the owner had not given permission to the driver to operate the vehicle, an ATV located on the owner’s farm, on the highway, as the driver only had a G1 license and was not licensed to use the ATV on a highway. The insurer attempted to rely on the similar decision of Newman v. Terdik, where the owner was not found to have given consent as he had expressly forbidden the driver from taking the vehicle off his farm and … Read More
Divisional Court Addresses “Best Foot Forward” Requirement on Summary Judgment
The recent decision of the Ontario Divisional Court of Pereira et al. v. Contardo found in favour of the plaintiff on a summary judgment motion to dismiss the plaintiff’s personal injury claim as statute-barred. At issue was whether the plaintiff complied with his obligation to put his best foot forward in opposing the motion, as the plaintiff did not file any responding material, and simply relied on the evidence put forward by the defendant to defend the motion. The Rules of Civil Procedure require that a responding party on a motion for summary judgment “must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial”. Rather than file responding material, the plaintiff simply relied on the affidavit evidence put forward by the defendant and argued that the limitation period for his claim started when he received an expert medical report, … Read More
Franchise Rescission Granted Due to Deficient Disclosure
The recent Ontario Superior Court of Justice decision in 2337310 Ontario Inc. v. 2264145 Ontario Inc., 2014 ONSC 4370, addressed a partial summary judgment motion brought by the franchisee of a cafe seeking a declaration that it was entitled to exercise its right of rescission under the Arthur Wishart Act (Franchise Disclosure), 2000 (“the Act”). The franchisee sought to rescind the franchise agreement approximately six months after entering into the agreement by arguing that the disclosure document provided by the franchisor was so deficient that it amounted to receving no disclosure at all. In contrast, the franchisor argued that the franchisee was provided with disclosure as required under the Act, and the franchisee was simply attempting to resile from a bona fide transaction due to its own incompetence and inability to operate the business successfully. The Court found a number of deficiencies in the disclosure provided by the franchisor, including failure to provide: (1) … Read More
Partial Summary Judgment Granted for Rescission of Franchise Agreement
In the recent Ontario Superior Court of Justice decision in 2147191 Ontario Inc. v. Springdale Pizza Depot Ltd., the plaintiffs brought a partial summary judgment motion seeking to rescind a franchise agreement under the Arthur Wishart Act (Franchise Disclosure), 2000 (the “Act”). After purchasing the business from an existing franchisee, the plaintiffs alleged that they were entitled to receive disclosure from the franchisor but the disclosure received was so materially deficient that it amounted to no disclosure at all. As a result, the plaintiffs claimed that they were entitled to rescind the franchise agreement within two years of entering into the franchise agreement. The defendant franchisor argued that it was not required to provide disclosure to the plaintiffs due to its minimal involvement in the sale transaction, or in the alternative, it provided satisfactory if imperfect disclosure which would only entitle the plaintiffs to rescind the franchise agreement within sixty days of receiving the disclosure documents (which had elapsed). Under subsections 5(7) and 5(8) … Read More
Civil Fraud Lawsuit Dismissed on Summary Judgment Motion
In Danos v. BMW Group Financial Services Canada, 2014 ONSC 2060, the Ontario Superior Court of Justice dealt with a summary judgment motion brought by the defendants to dismiss the plaintiffs’ claims that it forged their signatures on car leasing documents. The plaintiffs had leased a luxury car from the defendants but failed to keep up with the lease payments. The defendants took steps to repossess the car and commenced an action to recover its losses. After receiving the defendants’ productions, the plaintiffs’ allegedly discovered that their signatures were forged on a number of leasing documents, and commenced a fresh action claiming damages arising from the alleged fraud. The defendants brought a summary judgment motion to dismiss the action. The Supreme Court of Canada in Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, recently summarized the elements of the tort of civil fraud as follows: (1) a false representation made by the defendants; (2) some level of knowledge of the falsehood of the … Read More
Court Grants Summary Judgment in Employment Dispute
In Gregory Smith v. Diversity Technologies Corporation, the Plaintiff employee was terminated by the Defendant company for cause. The Defendant stated that the Plaintiff had made a sale to a customer despite being specifically instructed not to do so, and that the order disrupted the Defendant’s production process. The Plaintiff denied that he had been instructed not to sell to the customer. The Defendant argued that a Trial was necessary to resolve the credibility issues. The Judge disagreed, and, following the Supreme Court’s recent decision in Hyrniak v. Mauldin, stated that there was sufficient documentary evidence to allow the court to carry out a fair and just adjudication of the dispute. The Judge stated that she would consider the Defendant’s case “at its highest and best”, and set aside the credibility issues. She stated that even if the Plaintiff had disregarded the Defendant’s instructions not to sell to the customer, it was … Read More
Scooter Wars – Defamation Strikes Back
In Motoretta v. Twist & Go Power Sports, the Plaintiff and Defendant are two rival GTA scooter stores, engaged in what the Judge called the “Toronto Scooter Wars”. The Defendant’s Vespa dealership was terminated by the Canadian Vespa distributor. The Plaintiff remained an authorized Vespa dealer. The Plaintiff was suspicious that the Defendant had “bad-mouthed” it to customers on an ongoing basis. In response, the Plaintiff hired private investigators to pose as customers at the Defendant’s store. The private investigators recorded their conversations with the Defendant, which the Plaintiff alleged were defamatory. The Plaintiff scooter store brought an action for damages for defamation, and for a permanent injunction prohibiting the Defendant from further defaming the Plaintiff. The action was determined by summary judgment. The Judge found that the Defendant’s statements to the private investigators had defamed the Plaintiff. The Defendant argued that the statements did not meet the legal test of defamation because … Read More
Leave to Bring Summary Judgment Motion Denied in Dog Bite Lawsuit
In Dickson v. Di Michele, 2014 ONSC 2513, the plaintiff claimed the defendants’ dog attacked her while she was delivering a pizza and sued the defendants for damages under the Dog Owners’ Liability Act. After the plaintiff set the action down for trial, the plaintiff brought a motion requesting leave of the court to bring a summary judgment motion with respect to liability and contributory negligence, while leaving the issue of damages for trial. The defendants argued that leave should be denied since the well-established test required the plaintiff to prove a substantial or unexpected change in circumstances since the action was set down for trial. Justice Bale found that the issue was whether the proposed summary judgment motion was likely to provide a “proportionate, more expeditious and less expensive means to achieve a just result than going to trial”, citing the Supreme Court of Canada decision in Hyrniak v. Mauldin, 2014 SCC 7. After considering the evidence, Justice Bale held … Read More
Summary Judgment Granted in Condominium Maintenance and Repair Case
In Patriarcki v. Carleton Condominium Corporation No. 621, 2014 ONSC 1507, the self-represented plaintiff sued her condominium corporation and the condominium corporation’s contractor alleging that they negligently repaired and replaced a boiler in her condominium unit which exposed her to toxic fumes that made her very sick. The defendants brought a summary judgment motion seeking to dismiss the claims against them. The Court considered the guidance recently provided in the Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7, with respect to summary judgment motion principles before providing its analysis of the case. The issue was whether there was a genuine issue for trial in light of the plaintiff’s alleged failure to present any evidence of liability on the part of the defendants. Although the plaintiff relied on a number of medical reports which opined that her health problems were caused by gas leaks from the boiler, the Court found that the … Read More