Congratulations to our very own David Ullmann and Nadav Amar for getting leave to appeal on a point of law as to whether a secured creditor whose security does not attach to an asset of the bankrupt can submit a credit bid to acquire that asset from the trustee in bankruptcy. The asset in question is a proposed claim against the creditor making the bid.
In Wallbridge v. Poupore, the Court allowed the appeal in part. A former lawyer was paid while employed by his old firm a percentage of settlements or judgments recovered on files the lawyer had worked on. After leaving, the lawyer claimed his old firm owed him compensation for files he had worked on but that had not been resolved until after his departure. The motion judge agreed with him, but the Court disagreed and set aside that aspect of the motion judge’s decision.
In Diep v. Mac’s Convenience Stores Inc., the Court dismissed an appeal by a parking lot owner and snow maintenance company who argued that damages awarded to the respondent should be reduced by the statutory accident benefits he received from his car insurer. The respondent was injured after slipping on ice in a convenience store parking lot. The Court upheld the motion judge’s finding that the respondent’s negligence and occupiers’ liability claims did not arise “directly or indirectly from the use or operation of an automobile” within the meaning of the Insurance Act, as the dominant cause of the loss was the appellants’ failure to maintain the parking lot. The Court also confirmed that OHIP’s subrogated claims were not precluded by the Health Insurance Act and that the doctrines of abuse of process and issue estoppel did not apply.
In Mazzeo v Mazzeo, the parties share custody of a minor child whose primary residence is with the father in California. The mother who lives in Ontario, has not returned the child pursuant to the custody agreement. A California judge has ordered the child returned to the father.
In James v HSBC Bank of Canada, the Court dismissed the main appeal from a summary judgment decision that dismissed the appellant’s action against the bank. The appellant sued the bank after it froze his accounts following suspicious deposits, criminal charges and a Criminal Code restraint order. The appellant was ultimately acquitted of all charges. The appellant argued that summary judgment was inappropriate because of the respondents’ delay in bringing the motion and that the motion judge misapprehended the evidence. The Court rejected these arguments. Although the motion judge should have addressed the bank’s delay in brining the motion, ultimately, the case was suitable for summary judgment. There was no imminent trial date that was derailed as a result of the motion. Furthermore, the motion judge’s factual findings were supported by the record. However, the Court did granted leave to appeal the costs award and reduced the substantial indemnity costs awarded against the appellant from $225,000 to $175,000.
In Lloyd v. Baker, the Court allowed the appeal and dismissed an MVA claim commenced six years after the accident. The respondent argued the claim was not discoverable until she met with a neuropsychologist several years after the accident. The Court found that the respondent’s claim was discoverable much earlier and was therefore out of time.
In Singh v Persaud, the Court dismissed an appeal from a trial judgment ordering the appellant to transfer title to a property to the respondent and declaring the respondent sole beneficial owner pursuant to a Statutory Declaration and Acknowledgement of Trust. The Court also found no error in the award of punitive damages award of $10,000.
In Bridging Finance Inc. v. Sharpe, the Court dismissed an appeal by an offshore trust company that was involved in the fraudulent transfer of funds to an offshore trust account. The Trust company had argued that Ontario did not have jurisdiction to hear this issue or that Ontario was otherwise forum non conveniens. However, the alleged fraud and underlying contract formation occurred in Ontario therefore Ontario had jurisdiction.
In Block Developments Inc. v. Brewers Retail Inc., the Court dismissed an appeal challenging the trial judge’s $15.5 million damages award for breach of two agreements of purchase and sale involving development properties. The Court held that the trial judge did not err in accepting a lost development profits approach endorsed by both parties’ experts. This approach differed from the approach rejected in Rosseau Group because it used the breach date as the assessment date, applied a discount rate reflecting what a reasonable party would pay for projected cash flows considering risk and the time value of money, and was the same approach taken by Brewers’ own experts. The Court also upheld the trial judge’s finding that purchases made by Block’s affiliates post-breach were independent transactions that did not constitute mitigation, as Brewers failed to establish a causal link between its breach and Block’s ability to mitigate.
In Brown v. Meaney, the Court dismissed the appeal of two pediatric neurologists found liable for negligence in their treatment of an infant born with a rare vitamin B6-dependent seizure disorder. The Court upheld the trial judge’s finding that the appellants breached the standard of care by prematurely ruling out the disorder without completing the diagnostic process. The appellants had also failed to obtain informed consent by not discussing the diagnostic process and associated risks with the patient’s parents. Finally, the Court upheld the trial judge’s assessment that the appellants’ negligence caused the patient’s brain injury and developmental delay by way of the commonsense application of the “but for” test.
John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email