Civil Litigation - Defendant

The Grillone Defendants brought a motion under Rule 59.06 to set aside or stay a previous order granting a Mareva injunction, alleging fraud and newly discovered facts.

They claimed the plaintiffs intentionally withheld an exhibit to an affidavit that would have undermined the affiant's credibility.

The court dismissed the motion, finding that the allegedly withheld evidence did not go to the foundation of the case and could have been obtained with due diligence.

The court awarded partial indemnity costs to the plaintiffs.

Following the dismissal of the plaintiffs' action for specific performance due to egregious litigation misconduct, the defendant brought a motion seeking forfeiture of a $200,000 deposit and an order making the non-party principal of one of the plaintiffs personally liable for costs.

The court found that the plaintiffs' destruction and concealment of evidence made it impossible to determine who was at fault for the failed real estate transaction, warranting an adverse inference that the plaintiffs were not ready, willing, and able to close.

The court ordered the deposit forfeited to the defendant and held the non-party principal jointly and severally liable for costs due to his abusive litigation conduct, including the concealment of a related lawsuit between the plaintiffs.

Following the settlement of a construction lien action for $17,000, the parties disputed the quantum of costs payable to the plaintiff.

The plaintiff sought over $22,000, while the defendant argued costs should be limited to Small Claims Court tariffs because the plaintiff failed to take the least expensive course of action.

The court awarded the plaintiff $8,000 in costs, finding that while the plaintiff should have transferred the matter to Small Claims Court earlier, the defendant also delayed in bringing its motion to declare the lien expired.

The plaintiff sought leave to amend her Statement of Claim to include a new cause of action under a second life insurance policy, beyond the presumptive two-year limitation period.

The court found that the plaintiff met the discoverability criteria under the Limitations Act, 2002, as the relevant underwriting documents were not disclosed until the defendants served their Affidavit of Documents.

However, the court refused the amendment, concluding that the proposed new cause of action was legally untenable because the insured had a clear duty to disclose a material change in health (a seizure) before the delivery of the policy, and the alleged ambiguity in the insurance documents was without merit.

The plaintiffs in a Quebec class action and the defendants brought motions to stay a parallel Ontario class action alleging securities misrepresentations.

The moving parties argued the Ontario action was duplicative and an abuse of process.

The court dismissed the motions, finding that the Ontario action was more comprehensive and not duplicative of the Quebec action when it was filed.

The court held that issues of preferability between parallel multi-jurisdictional class actions are better addressed at the certification stage rather than through a pre-certification stay motion for abuse of process.

The applicants sought declaratory relief to prevent the Independent Electricity System Operator (IESO) from terminating their Feed-in Tariff (FIT) Contracts for failing to achieve commercial operation by the required milestone date.

The applicants argued that estoppel by convention applied based on a shared assumption that the IESO would grant an 18-month extension.

The court dismissed the application, finding no manifest representation by the IESO to establish a shared assumption, and noted that the entire agreement and waiver clauses in the contracts precluded reliance on past practices.

Following an order to merge two local unions into a larger local, the former locals attempted to amend their trust and building corporation documents to distribute assets pro rata to their members rather than transferring them to the merged local.

The court found these actions were taken without authorization, violated the union's constitution, and constituted a breach of fiduciary duty by the trustees and directors.

The court declared the amendments null and void, imposed a constructive trust, and ordered the assets transferred to the merged local.

The applicant insurer sought a declaration that three other insurers had a duty to defend a construction company in an action for damages resulting from an allegedly defective mechanical system.

One insurer, AIG, denied a duty to defend based on faulty workmanship and loss of use exclusions.

The court found that the allegations in the statement of claim regarding consequential damage and loss of use were sufficiently broad to raise the possibility of coverage, triggering AIG's duty to defend.

The court further held that the defence costs should be allocated among the insurers on a 'time on risk' basis, rather than equally, and that a self-insured retention clause did not alter one insurer's obligation to contribute to defence costs at this stage.

The applicants sought a declaratory order requiring the respondent insurer to defend an action they brought against an insured financial planner.

The insurer had denied coverage because the insured did not purchase the optional mutual fund coverage under his professional liability policy.

The court dismissed the application, holding that the applicants, as non-parties to the insurance contract, lacked standing to enforce the insurer's duty to defend.

Furthermore, the court rejected the applicants' interpretation of the policy, finding that coverage for financial planning advice did not extend to products for which coverage was not purchased.

The moving party, a car dealer, sought to set aside an interlocutory injunction preventing the transfer of a $1.5 million Ford GT 'super car'.

The plaintiffs alleged the moving party participated in a civil conspiracy to circumvent a 24-month restriction on the vehicle's resale.

The court dismissed the motion, finding no new facts or unforeseen change in circumstances since the injunction was granted, and held that the conspiracy claim raised triable issues inappropriate for determination on a motion to set aside an injunction.

The plaintiffs in a medical malpractice action sought to adduce opinion evidence from two treating cardiac surgeons as participant experts.

The defendants brought a motion to exclude portions of the proposed evidence of one of the surgeons, arguing it went beyond the scope permitted by Westerhof and that the surgeon lacked impartiality and specific expertise.

The court allowed the motion in part, excluding opinions on the standard of care prior to the surgeon's involvement and on whether earlier surgery would have changed the outcome, as these were not based on his observation or participation.

However, the court permitted the surgeon to opine on matters arising directly from his involvement, holding that concerns about his partiality should go to the weight of the evidence rather than its admissibility.

The defendant moved for summary judgment to dismiss the plaintiff's action and to grant judgment on his counterclaim for unpaid services.

The plaintiff elected not to file any responding evidence, relying solely on its pleadings.

The court drew an adverse inference against the plaintiff and dismissed its action, finding no genuine issue requiring a trial.

However, the court dismissed the defendant's motion for judgment on the counterclaim, finding the evidentiary record inadequate to determine liability and damages, and directed the counterclaim to proceed to a simplified procedure trial.

The defendant brought a motion for summary judgment to dismiss the plaintiffs' action seeking to recover a $700,000 transfer made by the deceased to the defendant prior to his death.

The plaintiffs, who were the deceased's estranged daughters and estate trustees, argued the transfer was suspicious and sought an adjournment to examine non-party witnesses.

The court denied the adjournment, finding a lack of diligence.

The court granted summary judgment, holding that the action was statute-barred under the two-year limitation period in the Trustee Act and that the doctrine of fraudulent concealment did not apply.

In the alternative, the court found the defendant had met the burden of proving the transfer was a valid inter vivos gift.

A case management conference was held for five related actions arising from a 2016 motor vehicle accident.

The court noted partial compliance with a previous timetable and ordered further deadlines for answering undertakings, arranging defence medical examinations, and serving expert reports.

The court also directed that the matters be tried together and admonished counsel for sending representatives without knowledge or authority to the case conference.

The plaintiff successfully defeated the defendants' anti-SLAPP motion and sought costs on a partial indemnity scale.

The court considered whether to depart from the statutory presumption in section 137.1(8) of the Courts of Justice Act, which provides that a successful responding party is generally not entitled to costs.

Finding that the defendants' motion was not frivolous, ill-conceived, or brought at an unjustifiably late stage in the proceeding, the court declined to exercise its discretion to award costs.

No order as to costs was made.

The parties agreed to a timetable for the plaintiff's upcoming motion, with the hearing scheduled for May 5 and 6, 2020.

The plaintiff brought a motion to set aside a registrar's order dismissing his wrongful dismissal action for delay.

The court applied the contextual test for setting aside administrative dismissals, balancing the explanation for delay, inadvertence, timeliness of the motion, and prejudice to the defendant.

Finding that the plaintiff adequately explained the delay, moved promptly to set aside the order, and that the defendant suffered no actual prejudice, the court granted the motion and set aside the dismissal order.

The plaintiff brought a proposed class action against the Canada Revenue Agency and a CRA employee on behalf of investors in a tax-driven investment scheme.

The parties negotiated a settlement to resolve the tax disputes and civil claims, which was accepted by over 90% of the putative class members.

The plaintiff moved for a pre-certification order to discontinue the proposed class action to implement the settlement.

The court approved the discontinuance under s. 29 of the Class Proceedings Act, 1992, finding it was not prejudicial to the putative class members.

The plaintiff sought to discharge a $220,000 mortgage registered against his property, claiming the funds were never advanced by the defendant.

The defendant counterclaimed for possession, alleging the funds were advanced in cash to the plaintiff's relative in Iran and by paying off credit card debt.

The court found significant credibility issues with all witnesses but relied on documentary evidence showing the defendant received over $220,000 in transfers from Iran, which he acknowledged was sufficient to discharge the mortgage.

The court ordered the mortgage discharged, finding it was effectively redeemed when the defendant received those funds.

The parties sought costs following three segments of the discovery process, including motions for undertakings and refusals.

The plaintiff claimed misappropriation by a former employee who started a competing business, while the defendant counterclaimed for wrongful dismissal.

The Master awarded partial indemnity costs to the plaintiff for its successful refusals motion, partial indemnity costs to the defendants for their refusals motion (deferring expert costs to the trial judge), and ordered costs in the cause for both parties regarding a third motion involving aborted discoveries.