Andrew Paterson

The defendant Danark moved to dismiss the action for delay under Rule 24.01 of the Rules of Civil Procedure and the court's inherent jurisdiction, or alternatively for a timetable.

The plaintiff opposed the motion.

The action was commenced in February 2017 to perfect a lien registered in January 2017.

Discoveries were completed in August 2019, with undertakings answered by June 2020.

Significant delay occurred thereafter, attributed by the plaintiff to COVID-19 pandemic impacts on its business, loss of a major client in 2021, and difficulties in retaining new counsel due to a solicitor's lien on its file.

The court found the delay was not inexcusable and that the plaintiff had rebutted the presumption of inherent prejudice.

The trial record had been passed and the action was trial-ready.

The motion was dismissed, and the parties were ordered to schedule a judicial pre-trial.

The court denied the defendant’s motion to strike the plaintiffs’ defamation claim under Rule 21, finding the claim disclosed a reasonable cause of action and was not frivolous, vexatious, or an abuse of process.

The court also declined to remove the plaintiffs’ counsel for conflict of interest, refused to prohibit the defendant from bringing further motions without leave, and declined to order that a single judge be seized of all pretrial matters.

A litigation timetable was imposed by consent, and costs were awarded to the plaintiffs.

The applicant, HomeLife/Cimerman Real Estate Ltd., sought a declaration that the respondent, Liberty Market Tower Inc., was obliged to pay it a commission in relation to the sale of a condominium unit.

The dispute centered on confusion over which real estate agent represented the purchaser, Mehdi Ajorlou.

The court found that Liberty had a binding agreement with Ajorlou to change the agent of record from Nejad to Ahmadipour, and a binding agreement with HomeLife to register Ahmadipour as the agent of record.

The court ordered Liberty to pay the commission to HomeLife and awarded costs.

The applicant sought a declaration that a retaining wall was on the property line between his property and the respondent's, and an order for the respondent to be partially responsible for its repairs.

The court found that the applicant's cited case law did not support a general principle of equal responsibility for retaining walls on property lines.

The court also rejected the applicant's argument for equitable relief, holding that preventing damage to a lower property from a neighbour's collapsing property is not a "benefit" to the lower property owner that would warrant contribution to the retaining wall's reconstruction.

The application was dismissed, and the applicant was ordered to pay the respondent's costs.

The plaintiffs, Griffon Integrated Security Technologies Inc. and Randall Sheppard, brought a motion for judgment in a wrongful dismissal action after the defendants' pleadings were struck and they were noted in default.

The court found the contract between the parties was an employment contract and awarded the plaintiffs damages for breach of contract (20 months' pay in lieu of notice), pre-judgment interest, substantial indemnity costs, and punitive damages.

The court also lifted a stay under the Bankruptcy and Insolvency Act for the purpose of granting judgment and found the individual defendant, R. Michael Martin, jointly and severally liable by piercing the corporate veil due to his direct involvement in the wrongful acts and the undefended nature of the action.

The defendants brought a motion to set aside a default costs assessment of $83,273.75.

The defendants' lawyer of record had been notified of the assessment hearing but failed to advise the defendants or attend the hearing.

The court applied the test for setting aside a default judgment and found that the motion was brought promptly, there was a plausible excuse for the default, and the defendants had an arguable defence on the quantum of costs.

Emphasizing the principle of determination on the merits, the court set aside the default assessment and remitted the matter to the Assessment Officer, on the condition that the judgment amount remain in trust.