Civil Litigation - Defendant

The defendant Million Dollar Round Table (MDRT) brought a motion to strike the plaintiff's statement of claim against it for disclosing no reasonable cause of action, or alternatively, for dismissal due to delay.

The plaintiff alleged negligence against MDRT, a voluntary trade association, based on a fraudulent letter from a former member bearing the MDRT emblem.

The court found that the claim failed to plead sufficient material facts to establish a novel duty of care owed by MDRT to the plaintiff, particularly for pure economic loss.

Despite the defendant's delay in bringing the motion and having filed a statement of defence, the court granted the motion to strike without leave to amend, citing the futility of the claim, the plaintiff's inaction in advancing the case, and the principle of proportionality in simplified procedure actions.

This defamation action involved Dianne Ballam and multiple defendants, including Linda Atamanchuk, concerning a newspaper article.

Following settlement with other defendants, the plaintiff, Dianne Ballam, moved to amend her statement of claim to reduce damages to $35,000 and remove injunctive relief, and to transfer the action to the Small Claims Court.

The defendant, Linda Atamanchuk, opposed the transfer, arguing procedural prejudice.

The court granted the amendment and the transfer, finding the Small Claims Court capable of resolving the dispute and that no genuine procedural prejudice would result.

The court also awarded Ms. Atamanchuk partial indemnity costs thrown away.

RONA Inc. brought a motion for summary judgment to dismiss a wrongful dismissal action initiated by Brian Roskaft.

Roskaft, who had been on long-term disability (LTD) since 2012, was terminated in 2015 on the grounds of frustration of contract, with RONA asserting there was no reasonable likelihood of his return to work.

The court considered the totality of evidence, including post-termination medical information, to determine if the contract was frustrated at the time of dismissal.

The motion was granted, and Roskaft's claim was dismissed.

Following the Court of Appeal’s reversal of a certification order in a proposed class action alleging misclassification of supervisors and unpaid overtime under the Canada Labour Code, the motion judge was directed to fix the defendant’s costs of the certification motion.

The defendant sought over $1 million in partial indemnity costs, arguing that it had achieved complete success and that the litigation involved substantial complexity and financial exposure.

The representative plaintiff and the Law Foundation argued that costs should be nominal or substantially reduced because the proceeding raised novel legal issues and public interest considerations under s. 31 of the Class Proceedings Act, 1992.

Applying issue estoppel arising from the Court of Appeal’s reasons and considering the purposes of class action costs, the court fixed costs at $475,000 all inclusive.

Two related class proceedings alleged that employees transferred from municipal home‑care providers to Community Care Access Centres suffered pension losses when their OMERS or VON pensions were replaced with HOOPP after a government restructuring of home‑care services.

The plaintiffs advanced claims for negligent misrepresentation and breach of contractual undertaking against the province.

Following mediation and negotiations, the parties reached a settlement providing $6.5 million for class members, along with amounts for class counsel fees and administration.

The court reviewed the settlement under s. 29 of the Class Proceedings Act, 1992 and considered the risks of establishing liability and damages, the complexity of actuarial loss calculations, and the absence of objections from class members.

The settlement and proposed class counsel fees were found to fall within a reasonable range and to be in the best interests of the class.

The defendant brought a motion seeking a stay of a civil action on the basis that the plaintiff had initiated a parallel complaint before the Canadian Human Rights Commission arising from substantially the same facts.

While courts sometimes allow simultaneous civil and human rights proceedings, they may also prevent duplicative litigation as an abuse of process.

Before the motion was decided on the merits, the Commission issued a report recommending that the human rights complaint be held in abeyance pending the outcome of the civil action, effectively eliminating the basis for the stay motion.

The court dismissed the motion without prejudice to it being brought again if the administrative complaint were revived.

The plaintiff was awarded partial indemnity costs for defending the motion.

Vexatious litigants sought once again to obtain leave to commence proceedings despite prior court orders refusing such leave.

After earlier decisions had found similar requests to be an abuse of process, the applicants attempted to circumvent Motions Scheduling Court by delivering materials directly to the judge’s chambers without notice to the opposing party.

The court refused to consider the materials and directed that any such communications be forwarded to the Civil Motions Office.

The judge reiterated that previous orders restricting the applicants’ litigation activities remained in force and warned that further correspondence to the court would be ignored.

Following an application proceeding, the court considered written submissions regarding costs.

The applicant argued that because the respondents had not objected to proceeding by way of application, the issue of costs should be determined by the trial judge.

The court agreed that the trial judge would be better positioned to assess any costs thrown away as a result of the application and noted that the record lacked sufficient evidence regarding the parties’ positions on the procedural choice.

The court therefore declined to determine costs at this stage.

The plaintiffs sought interlocutory injunctive relief restraining a former shareholder, director, and employee from using confidential information and soliciting customers following the sale of his shares in a closely held corporation.

The evidence indicated the departing fiduciary took electronic files containing proprietary customer information and immediately solicited key customers after the share sale.

The court found a strong prima facie case of breach of fiduciary duty and unfair competition, notwithstanding the absence of a non‑competition agreement.

Given the likelihood of irreparable harm through loss of goodwill and customer relationships, and the balance of convenience favouring the plaintiffs, injunctive relief was granted.

The injunction restrained the former fiduciary and his corporation from using confidential information and soliciting customers for a limited period pending trial.

The plaintiff brought a motion relating to outstanding undertakings and refusals arising from extensive examinations for discovery of a defendant.

The court reviewed numerous undertakings and determined that several had been satisfactorily answered, while others required reproduction of documents in an organized format to properly address the undertakings.

The court also ordered disclosure of certain financial documents relevant to claims for accounting and disgorgement.

However, the court declined to compel any further examinations, finding that five days of discovery and thousands of questions already rendered the process disproportionate under the Rules of Civil Procedure.

The defendant municipality brought a motion to dismiss the plaintiff’s civil action for failure to comply with multiple interlocutory cost orders.

The plaintiff had failed for several years to pay costs awarded in prior proceedings, including $10,000 ordered following dismissal of an appeal and additional costs awarded on subsequent motions and appeals.

The court considered Rule 60.12 and subrule 57.03(2) of the Rules of Civil Procedure, which authorize dismissal or other sanctions where a party fails to comply with interlocutory orders, including orders for payment of costs.

Finding that the plaintiff persistently refused to comply with cost orders, repeatedly delayed the action, and demonstrated no intention of satisfying the outstanding obligations, the court concluded that dismissal was the appropriate sanction.

The action was dismissed with costs.

Following a successful condominium compliance application under the Condominium Act, 1998, the court determined costs.

The applicant sought full indemnity costs exceeding $11,000 based on actual legal fees.

The court held that s. 134(3) of the Act does not mandate full indemnity costs and that the primary consideration in fixing costs is what is fair and reasonable for the unsuccessful party to pay.

Applying partial indemnity principles, the court reduced the hourly rate and time claimed, fixing total costs at $5,729.30 inclusive of fees, disbursements, and HST.

The court also declined to award damages for remedial expenses not yet incurred, finding no jurisdiction under s. 134(3)(b)(i).

The court addressed a motion and cross‑motion seeking directions concerning the forensic review and discovery of electronic information stored on an external hard drive belonging to a former employee accused of misappropriating confidential information and competing with his former employer.

Disputes arose regarding who should conduct the review, how privileged material should be handled, and whether backup files on the drive should be examined.

The court held that the defendant must review potentially privileged communications with former counsel and produce those relating to advice about the enforceability of a restrictive covenant, over which privilege had been waived.

The court also authorized further forensic analysis of backup files by an independent expert and ordered transparency regarding prior searches conducted by the plaintiff’s counsel.

Costs of the forensic work were ordered to be borne by the plaintiff but recoverable in the cause.

In a personal injury action arising from a motor vehicle accident, the defendant brought a motion seeking permission for the insurer’s claims adjuster to attend the plaintiff’s examination for discovery as an observer.

The plaintiff opposed the request, arguing that the insurer was a non-party and that the adjuster’s presence would increase the stress of the discovery process.

The court reviewed principles governing the attendance of non-parties at discoveries and concluded that the categories permitting attendance were not exhaustive and that the court retained discretion to allow attendance where appropriate.

Given the rational reasons advanced by the adjuster and the lack of evidence demonstrating prejudice or intimidation to the plaintiff, the court permitted the adjuster to attend as an observer only.

No costs were awarded.

Following the dismissal of a motion seeking disclosure of a deceased individual's federal employment and personnel records, the respondent sought costs on a partial indemnity basis.

The applicants conceded entitlement to costs but disputed the quantum, arguing that the hourly rate and preparation time claimed were excessive.

The court held that the jurisdictional issues raised in the motion were complex and justified substantial preparation time, though the hours claimed were reduced.

The court fixed costs at a reduced amount and ordered payment within 30 days pursuant to Rule 37.03(1) of the Rules of Civil Procedure.

The moving party sought leave to appeal a motion judge’s refusal to grant summary judgment dismissing a professional negligence claim against a solicitor.

The claim alleged that the solicitor failed to advise the plaintiff regarding a limitation period for commencing an action against a disability insurer.

The court considered whether the absence of expert evidence required dismissal of the claim at the summary judgment stage.

It held that expert evidence is not invariably required when the moving party has also failed to file such evidence and the evidentiary record does not permit a full appreciation of the issues.

Leave to appeal was denied because the motion judge reasonably concluded that the factual record required further development at trial.

Multiple motions were brought in related commercial proceedings seeking security for costs and leave to amend pleadings.

The defendants sought security for costs against an individual plaintiff on the basis that the action was allegedly frivolous and vexatious and that the plaintiff lacked sufficient assets in Ontario.

The court held that the claim was not clearly devoid of merit and there was insufficient evidence that the plaintiff lacked assets, so security was refused.

In separate corporate actions, the moving parties also sought security for costs against a corporate plaintiff, but the court found their evidence of financial insufficiency was speculative and failed to meet the Rule 56.01 threshold.

However, leave to amend the statements of defence to challenge the validity of an assignment of claims and to plead reliance on legal advice was granted, as no prejudice would result.

An automobile insurer sought to intervene in a tort action as an added defendant under Rule 13.01 of the Rules of Civil Procedure in order to allege that the accident was staged and to assert a crossclaim against its insured.

The court held that it was not an appropriate use of Rule 13.01 for a tort insurer to add itself as a party defendant where statutory third party status under s. 258 of the Insurance Act was available.

As a statutory third party, the insurer could still defend the claim on the basis that the accident did not occur or was staged and could obtain discovery of its insured where adversity existed.

Issues between insurer and insured, including indemnity claims, were more properly addressed in separate proceedings.

The request to intervene as a defendant was refused, but the insurer was granted alternate relief to be added as a statutory third party.

A mining corporation sought an interlocutory injunction preventing major shareholders from voting their shares or soliciting proxies in an upcoming shareholder meeting, alleging breach of a confidentiality agreement and misuse of confidential information obtained during a site visit.

The dissident shareholders also sought declaratory and injunctive relief relating to the conduct of the shareholder meeting under the Business Corporations Act.

The court applied the RJR‑MacDonald test and held that while the corporation established a strong prima facie case that confidential information had been received, it demonstrated only a weak case that the information had been misused.

The balance of convenience favoured allowing the proxy contest to proceed.

The court also declined to interfere in advance with the conduct of the shareholders’ meeting, emphasizing corporate autonomy absent demonstrated impropriety.

The plaintiff brought a motion to set aside a Registrar’s order dismissing the action for delay and to extend and validate service of the statement of claim.

The court applied a contextual approach considering the Reid factors, including explanation for delay, inadvertence, motion delay, and prejudice.

The court found the plaintiff had provided an adequate explanation for the delay in attempting to locate and serve the defendant, and accepted counsel’s evidence that the failure to take additional steps earlier was inadvertent.

The court also found the defendant’s insurer had early notice of the claim, mitigating any presumption of prejudice arising from the expiry of the limitation period.

The dismissal order was set aside and the time for service extended, with service validated.