Alexander Melfi

The plaintiff brought a motion to amend his statement of claim to reduce damages to $35,000, dismiss a third-party claim, and transfer the action to the Small Claims Court.

The defendants opposed the transfer, arguing prejudice due to COVID-19 delays and costs already incurred in defending the Superior Court action.

The court granted the unopposed amendments and dismissal of the third-party claim.

The court also granted the transfer to Small Claims Court, finding no definitive prejudice from delay, but ordered the plaintiff to pay $500 to each defendant for costs thrown away on steps unnecessary in Small Claims Court.

This endorsement followed the twelfth case management conference, addressing the progression of the action towards trial.

The court noted the completion of pleadings and examinations for discovery.

A key issue was the non-compliance of one defendant with a previous cost order of $44,000.

The plaintiffs, prioritizing trial scheduling, reserved their right to seek remedies for non-compliance.

The court issued specific directions for trial readiness, including deadlines for expert reports, filing of the Trial Record, and a certification form for setting pre-trial and trial dates.

Parties were also directed to confer on adopting a summary trial format versus an ordinary trial.

The plaintiffs brought a motion to extend the time for service of their Statement of Claim against the defendant for damages arising from an alleged arson.

The claim was served three months after the six-month deadline under Rule 14.08(1).

The court found the delay was minor, explained by the plaintiffs waiting for the conclusion of related criminal proceedings, and did not cause non-compensable prejudice to the defendant.

The motion was granted, time for service was extended, and service was validated.

Your Neighbourhood Credit Union (YNCU), a non-party and first mortgagee, moved to set aside a prior judgment (Hainey J.) that granted an easement over its mortgaged lands, alleging lack of notice.

The motion was held in abeyance pending an appeal of a similar judgment (Conway J.), which was subsequently overturned by the Court of Appeal, finding no legal entitlement to an easement.

The court found YNCU's motion, continued by its assignee Silsym Inc., met the "forthwith" requirement of Rule 38.11 despite delays.

Given the Court of Appeal's ruling on similar facts, the court concluded there was no entitlement to the easements granted by the Hainey Judgment and allowed the motion, setting aside the judgment.

Costs were fixed at $20,000 for the moving party.

The defendant brought a motion to dismiss the plaintiff's action for delay and non-compliance with a security for costs order.

The plaintiff had failed to post $60,000 security for costs and pay $7,500 in costs as previously ordered, and had not advanced the action for over 6.5 years, missing multiple deadlines for discoveries and setting the action down for trial.

The court denied the plaintiff's request for a further adjournment, finding the delay inordinate and inexcusable, leading to a presumption of prejudice that was not rebutted, and actual prejudice to the defendant.

The action was dismissed with costs.

The defendant lawyers brought a motion to strike the plaintiff's claim against them for professional negligence under Rule 21.01(1)(b) of the Rules of Civil Procedure.

The plaintiff, a lender in a private mortgage transaction, alleged that the defendant lawyers, who represented the borrower, owed it a duty of care and failed to conduct adequate due diligence.

The court granted the motion, finding that opposing counsel generally owe no duty of care to an opposing party, especially when both parties are represented by independent counsel.

The court concluded that there was no special relationship or sufficient proximity to establish a duty of care, and struck the pleadings against the defendant lawyers.

A private mortgage lender purchased mortgage insurance from an insurer and became the victim of mortgage fraud.

The lender's lawyer paid mortgage proceeds to the borrower's lawyer in trust rather than directly to the borrower.

The insurer denied coverage based on an exception clause requiring proceeds to be paid to the registered title holder.

The application judge found the exception did not apply.

The insurer appealed.

The majority of the Court of Appeal upheld the application judge's decision, holding that payment to the borrower's lawyer in trust constitutes payment to the borrower for purposes of the insurance policy.

The dissent argued the exception clause was unambiguous and applied because the funds were not paid directly to the registered title holder.

The appellant appealed a decision of the Superior Court of Justice dismissing his motion for default judgment against the respondent law firms.

The respondents moved to quash the appeal for want of jurisdiction.

The Court of Appeal found that the order appealed from was interlocutory in nature, as it did not finally determine any issue in the proceeding.

Accordingly, jurisdiction lay with the Divisional Court, not the Court of Appeal.

The appeal was quashed without prejudice to the appellant's right to apply to the Divisional Court for leave to appeal.

Costs of $1,500 were awarded to each of the two moving parties.

The defendant brought a motion for security for costs against the plaintiff, Aaron Goldman, who was ordinarily resident outside Ontario.

The court found that Goldman failed to meet the high evidentiary threshold to establish impecuniosity, as his financial disclosures were incomplete and lacked supporting documentation.

Furthermore, the court determined that Goldman's professional negligence claim against his former solicitor did not have a good chance of success, particularly given a prior ruling by Justice Myers on a limitations defence in a related action.

The motion for security for costs was granted, requiring Goldman to post $60,000.00.

The applicant lender sought a declaration of coverage under a title insurance policy after a private mortgage transaction was discovered to be an identity fraud.

The respondent insurer denied coverage, relying on an exception that applied if mortgage proceeds were paid to anyone other than the registered titleholder.

The funds had been disbursed to the borrower's lawyer in trust.

The court held that the exception was ambiguous and did not clearly require direct payment to the titleholder.

Construing the ambiguity against the insurer, the court found the exception did not apply and declared that the policy provided coverage for the loss.

The appellant employer appealed a Small Claims Court decision that dismissed its defence of set-off against the respondent employee's wrongful dismissal damages.

The employer claimed the employee negligently failed to back up her work and lost USB keys, causing the employer to incur costs to reconstruct accounting data.

The Divisional Court found the trial judge erred in his reasons for dismissing the set-off claim, but ultimately upheld the dismissal because the evidence did not establish the employee was negligent or breached her employment contract.

The appeal was dismissed.

The appellants purchased a home and acquired a title insurance policy from the respondent.

Years later, they discovered a previous owner had removed load-bearing walls without a building permit, resulting in a municipal order to remedy an unsafe building.

The respondent denied coverage under the title policy.

The motion judge dismissed the appellants' summary judgment motion, finding the title remained marketable and that municipal work orders must be registered on title to trigger coverage.

The Court of Appeal allowed the appeal, holding that the standard of review for standard form insurance contracts is correctness.

The Court found the motion judge erred in his interpretation of the policy and the nature of off-title defects, concluding that the unpermitted construction rendered the title unmarketable and was covered under the policy.

In a will challenge concerning allegations of undue influence over the deceased, the court considered the proper procedural framework for managing the litigation following the Supreme Court of Canada's decision in Hryniak v. Mauldin.

The court held that proportionality principles should guide orders for directions in estate litigation and rejected the routine use of the traditional Estates List standard order for directions.

Instead, the court ordered limited documentary production, permitted written interrogatories in place of oral examinations for discovery, and scheduled a hybrid hearing using affidavit evidence with viva voce cross‑examination.

The court also transferred a related civil action to the Estates List and assumed case management of both proceedings to ensure a timely and cost‑effective resolution.