Civil Litigation - Defendant

The applicants sought the appointment of a new arbitrator for a second arbitration concerning franchise agreements, while the respondents sought to re-appoint the arbitrator from the first arbitration.

The applicants objected on the basis of a reasonable apprehension of bias, as the arbitrator had made adverse credibility findings against them in the first proceeding.

The respondents argued the original arbitrator was best positioned to determine if the new claims were res judicata.

The court declined to appoint the original arbitrator, finding that relying on his private notes from the first arbitration would violate deliberative secrecy and that the interpretation of his prior award must be done objectively by a new decision-maker.

The court appointed a retired judge as the new arbitrator.

The applicant brought an application to interpret two promissory notes representing a $900,000 loan from the respondent for a real estate development project.

The parties disputed whether interest should be compounded, whether an interest escalation clause was triggered, and whether the second promissory note contained a mistake requiring rectification.

The court held that there was no agreement for compound interest and that the interest escalation clause was not triggered because the project was not fully constructed.

The court also rectified the second promissory note to remove the interest escalation clause while maintaining the 20% base interest rate.

The applicant was ordered to pay the remaining $99,778 owed under the notes, and was awarded $25,000 in partial indemnity costs due to divided but primarily successful outcomes.

The court convened a case conference for four related product liability actions involving fires allegedly caused by defective ventilation units.

After four years of case management, the court discovered that counsel for the defendant had failed to disclose numerous other actions across the province involving the same parties and identical issues, including one that had already proceeded to trial.

Citing counsel's lack of candor and repeated failure to comply with court orders, the case management judge struck the actions from the trial list and declined to continue case managing them.

The plaintiff brought an action for specific performance of an Agreement of Purchase and Sale for vacant commercial land, with an abatement of the purchase price due to the defendant's failure to install municipal services.

The defendant's Statement of Defence and Counterclaim admitted the plaintiff's entitlement to specific performance, but at trial, the defendant attempted to argue the agreement was null and void.

The court held the defendant to its pleadings, found the plaintiff entitled to specific performance, and granted an abatement of the purchase price based on the estimated cost for the plaintiff to independently service the lands.

The plaintiff, a lawyer employed by the Crown, moved for a mandatory interlocutory injunction to reinstate her salary and benefits pending the outcome of her action alleging racial discrimination and a toxic workplace.

The court dismissed the motion, finding that the dispute over pay and benefits fell within the exclusive jurisdiction of an arbitrator under the collective agreement.

Furthermore, the court held that the Proceedings Against the Crown Act barred injunctive relief against the Crown, and the plaintiff failed to meet the stringent test for a mandatory injunction, including failing to establish a strong prima facie case or irreparable harm.

The moving party sought an interim distribution of 25 percent of funds held in trust from the sale of the deceased's residence, pending the resolution of a will challenge.

The funds were held pursuant to a consent order.

The court dismissed the motion, finding no grounds to vary the consent order and concluding that an interim distribution was premature as the estate's liabilities were unknown and an earlier will might exist.

The plaintiff brought a motion to restore her personal injury action to the trial list after it was struck for failure to file a trial certification form.

The court found that the plaintiff provided an acceptable explanation for the delay, which included a change of counsel and the defendants' failure to respond to the certification form.

The court also found no non-compensable prejudice to the defendants, as the action was largely ready for trial and the defendants had fully investigated the claim.

The motion was granted and the action was restored to the trial list.

The plaintiffs brought a motion to certify a class action arising from an airline accident involving a flight operated by Fly Jamaica Airways and an aircraft manufactured by Boeing.

The court found that the criteria under section 5 of the Class Proceedings Act were met, including the 'some basis in fact' standard, and certified the action on consent.

The court also granted the plaintiffs' unopposed requests to amend their pleadings to name the pilots and ordered the airline to disclose the passenger list to facilitate notice to the class.

The applicant unit owner commenced a proceeding against the respondent condominium corporation for damages arising from disruptive repair work to the common elements.

The parties settled the underlying dispute but left the issue of costs for the court to determine.

The applicant sought costs of $21,419.81, while the respondent sought costs of $40,069.05 based on an earlier settlement offer.

The court declined to award costs to either party, finding that the dispute could have been settled earlier but that penalizing the applicant for not accepting a withdrawn offer would disincentivize cooperative settlements.

Each party was ordered to bear their own costs.

The respondent was found guilty of civil contempt for violating an interim order prohibiting him from communicating with the Town of Aurora and its officials pending a vexatious litigant application.

The court rejected the respondent's proposals to purge his contempt, finding he lacked insight and remained committed to his cause.

The court ordered the respondent to pay a fine of $1,500 and costs of $10,000, emphasizing the need for general and specific deterrence.

The plaintiffs brought a motion to find the self-represented defendant in civil contempt of three previous court orders.

The orders required the defendant to remove defamatory online broadcasts and videos about the plaintiffs and prohibited him from posting further defamatory material.

The court applied the three-part test for civil contempt and found beyond a reasonable doubt that the orders were clear, the defendant had actual knowledge of them, and he intentionally breached them by failing to remove the posts and by publishing new defamatory content.

The defendant was found in contempt, with a penalty hearing to be scheduled.

The plaintiff brought motions to amend the statement of claim to add her minor children as anonymous plaintiffs with herself as litigation guardian, and to strike portions of the defendants' statement of defence.

The defendants opposed her appointment as litigation guardian, alleging a potential conflict of interest, and opposed striking the pleadings.

The court appointed the plaintiff as litigation guardian, finding no evidence of a conflict.

The court also struck several paragraphs of the statement of defence that pleaded evidence or irrelevant post-incident facts, while allowing paragraphs relevant to the police investigation to remain.

Following a decision in favour of the defendant, the court determined the quantum and scale of costs.

The defendant sought substantial indemnity costs, arguing the plaintiffs' actions were improper.

The court rejected this characterization, finding the plaintiffs acted within the boundaries of the law.

Costs were awarded to the defendant on a partial indemnity scale, fixed at $11,850 inclusive of HST, as submitted by the plaintiffs.

The plaintiffs brought a motion to set aside a registrar's order dismissing their action for delay.

The action, commenced in 2013, alleged improper solicitation of clients by former associates.

The court applied the Reid factors and found that the plaintiffs failed to provide a reasonable explanation for the delay, failed to show the deadline was missed through inadvertence, and did not move promptly to set aside the dismissal.

Furthermore, the court found actual prejudice to the defendants due to the loss of key evidence, specifically a mobile phone containing allegedly incriminating messages.

The motion to set aside the dismissal was dismissed.

The plaintiffs brought a motion for summary judgment in a simplified procedure action arising from a failed real estate transaction.

The defendants, as purchasers, failed to close the transaction and pay the balance of the purchase price.

The court granted partial summary judgment on liability, finding the defendants breached the agreement of purchase and sale, as they offered no defence to the breach.

However, due to errors and confusion in the plaintiffs' evidence regarding damages and mitigation, the court directed the issue of damages to proceed to a summary trial under Rule 76.

The plaintiff landlord brought a summary judgment motion against its former commercial tenant for rent arrears and prospective damages for the unexpired term of the lease.

The tenant argued the lease was surrendered by agreement or operation of law, releasing it from future obligations.

The court found no surrender agreement was finalized and the landlord had effectively terminated the lease with notice of a claim for prospective damages under the Highway Properties framework.

Summary judgment was granted to the landlord for the rent arrears and prospective damages, less the security deposit.

The third parties brought a motion to compel the defendants to answer questions and provide undertakings refused during the examination for discovery of the defendants' witness.

The underlying action involves a house fire allegedly caused by a heat recovery ventilator manufactured by the defendants, which contained a motor manufactured by the third parties.

The court ordered the defendants to answer the majority of the refused questions, finding them relevant to the adequacy of the defendants' safety upgrade program and their appreciation of the fire risk.

The defendants appealed and the plaintiffs cross-appealed a Master's decision dismissing a motion for summary judgment regarding the expiry of a limitation period in a motor vehicle accident claim.

The defendants argued the action was statute-barred, while the plaintiffs argued the limitation period had not expired due to discoverability.

The Superior Court of Justice dismissed both appeals, finding no error in the Master's conclusion that the evidence on discoverability was unclear and intertwined with issues of severity, causation, and damages.

The court held that the limitation period issue could not be justly decided on a summary judgment motion and should be determined on a full evidentiary record at trial.

The plaintiffs brought a successful motion for leave to file a late expert report and affidavit.

The court determined the costs of that motion.

Finding that the relief granted to the plaintiffs was an indulgence to ensure trial fairness, and noting the unreasonable delay by plaintiffs' counsel in delivering the report, the court ordered the plaintiffs to pay the defendants' costs of the motion.

The defendants were awarded a total of $18,000 in costs.

The plaintiff was struck by a vehicle while riding his bicycle and sued the driver and the municipality, alleging the intersection was dark due to burnt-out streetlights.

The municipality moved for summary judgment, arguing the plaintiff failed to provide notice of the claim within 10 days as required by s. 44(10) of the Municipal Act.

The court found the plaintiff had a reasonable excuse for the delay, as the municipality's potential liability was not discoverable until the police file was released months later.

However, the court concluded that whether the municipality was prejudiced by the delay remained a genuine issue requiring a trial.

The motion for summary judgment was dismissed.