Civil Litigation - Plaintiff

Following a trial, the successful plaintiff sought costs.

The parties had agreed at trial that $23,000 on a partial indemnity basis would be paid to the successful party.

The court found no need for reaffirmation of the agreement and, applying the factors in the Rules of Civil Procedure and Boucher, awarded the agreed-upon amount of $23,000 to the plaintiff.

The moving parties sought leave to serve family-member defendants outside Ontario in actions arising from a foreign estate dispute.

The court held the motions were an abuse of process because substantially the same claims, facts, and effective parties had already been litigated in prior Ontario proceedings.

Applying prior jurisdiction and issue estoppel principles, the court found there was no basis for Ontario jurisdiction simpliciter and no valid ground under the Rules of Civil Procedure for service ex juris.

Both motions were dismissed.

The moving respondent sought a stay of a production order requiring corporate counsel to disclose patent application materials and related solicitor files in an oppression and fraud proceeding, together with directions for discoveries and an adjournment of a scheduled summary trial.

Applying the RJR-MacDonald framework and the leave to appeal standard in rule 62.02(4), the court held there was no serious issue to be decided because the alleged conflicting authorities did not conflict with the production ruling and there was no good reason to doubt its correctness or sufficient importance to justify leave.

The court further found no irreparable harm, given the confidentiality protections already imposed, and concluded the balance of convenience favoured disclosure in advance of the imminent summary trial.

The motion was dismissed, as were the requests for discoveries and an adjournment, and costs were fixed in favour of the applicants.

In garnishment proceedings to enforce an arbitral award against a foreign state, the moving party sought cross-examinations and broad document production relating to embassy bank accounts said to be immune from execution.

The court applied the previously established framework recognizing a strong but rebuttable presumption of diplomatic immunity once a competent authority provided due assurances that the accounts were used for sovereign or diplomatic purposes.

The court held that compelling the ambassador, the bank, or third parties to disclose records or submit to questioning would unduly interfere with the affairs of the diplomatic mission and was not justified on the evidentiary record.

The motion to strike the moving party’s affidavit was also dismissed.

All production and cross-examination requests were denied.

The applicant sought recognition of a 50 percent ownership interest in residential property, rectification of title, and partition and sale after a later registered transfer reduced her interest to 5 percent.

The court found that the respondent had made a bona fide gift of a one-half interest to the applicant in 2013 within the context of an intimate relationship, and that the subsequent transfer was executed without the applicant's knowledge or consent.

Treating the impugned transfer instrument as fraudulent and void under the Land Titles Act, the court ordered rectification of the register.

The court further held that the respondent had shown no basis to resist partition and sale under the Partition Act and ordered the property listed for sale with equal division of net proceeds.

The moving party sought to amend a motor vehicle action by replacing a Doe defendant with the allegedly responsible driver after the presumptive limitation period had expired.

The court held the record was fatally deficient on discoverability because there was no direct evidence from the plaintiff and almost no medical evidence connecting the MRI findings to a threshold-level permanent serious impairment.

The court also found no due diligence in identifying the proposed defendant, as the plaintiff had the licence plate number from the date of the accident and offered no explanation for not conducting a plate search earlier.

The motion was dismissed, and costs were awarded to the responding party.

On motions to strike in a franchise dispute arising from the post-bankruptcy restructuring of an automotive manufacturer, the court dismissed the entire claim against the U.S. parent entities and struck discrete allegations against the Canadian franchisor.

The court held that a franchisor’s associate is not liable under s. 3 of the Arthur Wishart Act unless it is also a party to the relevant franchise agreement, and further found the pleadings did not satisfy the statutory definition of franchisor’s associate.

The court also held that the pleadings did not justify piercing the corporate veil to impose contractual liability on the parent companies.

Allegations concerning misuse of government bailout funds and the defendants’ preference of their own interests were struck as irrelevant, scandalous, and abusive.

Leave to amend was refused.

The plaintiff moved to set aside orders compelling answers to undertakings and dismissing the action, arguing that an earlier motion and subsequent appeal had finally resolved those issues and rendered them res judicata.

The court applied the issue estoppel branch of res judicata and held that, although the earlier decision was final and involved the same parties, it did not determine that all undertakings and refusals had been answered.

The later motions concerned outstanding undertakings that remained unresolved, and the plaintiff had failed to respond to the motion before the first motion judge or promptly move to vary that order.

The court held that the later judges had jurisdiction to make their orders and refused to set aside the dismissal.

This was a costs decision following a motion by a defendant to set aside a default judgment.

Although the plaintiffs were technically unsuccessful on the motion, the court had granted the motion on terms requiring payments to the plaintiffs, including costs thrown away and security for costs.

The plaintiffs sought substantial indemnity costs or, alternatively, partial indemnity costs for the motion.

The court held that a punitive costs award was not warranted and fixed costs at $8,500 all inclusive on a partial indemnity basis.

This was a costs ruling following an appeal involving the Motor Vehicle Accident Claims Fund and an insurer.

The successful responding party sought partial indemnity costs of $7,500 from total accounts of $10,072.45, while the unsuccessful party argued the appeal was not complex and proposed $5,000.

The court applied Rule 57.01 and the principle of indemnity, emphasizing the importance of the issue to both the parties and the motor vehicle insurance industry, the time spent by senior counsel, and the quality of the materials and submissions.

The court held that $7,500 inclusive of GST and disbursements was fair and reasonable.

On a Rule 21 motion, the court considered whether a child protection agency owes a duty of care to foster parents whose foster home was closed after abuse allegations against their biological child.

Applying the plain and obvious standard and the duty of care framework discussed in Syl Apps, the court held that no such duty is recognized in Canadian law.

The court rejected an attempt to distinguish biological parents from foster parents and found that imposing a duty to foster parents would conflict with the statutory mandate to treat the child’s interests as paramount.

The adult plaintiffs' claim in negligence against the agency was struck and the action dismissed as against that defendant.

In this personal injury trial arising from a motor vehicle accident, the court addressed an objection to proposed opinion evidence from a treating chiropractor on whether the plaintiff still required treatment.

Applying the framework for participant experts, the court held that treating health practitioners may give opinion evidence without rule 53.03 compliance only if the opinion was formed through observation or participation in the events at issue in the ordinary exercise of their expertise.

The court further held that a party should disclose in advance opinions to be elicited from a participant expert when those opinions are not contained in the records already produced.

A voir dire was ordered on admissibility, and any resulting prejudice was addressed by permitting the defence orthopedic expert to respond without full rule 53.03 formalities.

In a long-running wrongful dismissal and unjust enrichment action, the self-represented plaintiff moved to recuse the case management master on the basis of alleged systemic bias arising from case management decisions and the handling of repeated procedural disputes.

Applying the objective reasonable apprehension of bias test, the court held that the threshold for disqualification is high, particularly in the case management context, and that allegations alone are insufficient.

The court found no cogent evidence that the judicial officer was incapable of impartial adjudication or was no longer open to persuasion by evidence and submissions.

The recusal motion was dismissed.

The applicant sought forfeiture of cash seized during a traffic stop under the Civil Remedies Act, 2001.

The court held that, on a balance of probabilities, the bundled cash was proceeds of unlawful activity or an instrument of unlawful activity, relying on the circumstances of seizure, the presence of marijuana-related indicia, the packaging of the money, and unchallenged expert opinion evidence concerning drug-trafficking cash practices.

The court rejected the explanation that the funds were intended for a legitimate tobacco purchase, finding that evidence inconsistent with the ordinary payment practices of the business.

A forfeiture order was granted.

The moving defendant sought summary judgment dismissing a medical malpractice action arising from emergency treatment of a laceration caused by broken glass.

The court held that, while the plaintiff's plastic surgery expert was not practising in the same field as the emergency physician and therefore could not alone establish the standard of care in emergency medicine, the defendant's own emergency medicine expert did not eliminate a genuine issue for trial because his opinion was premised on an assumption contrary to the admitted evidence that the plaintiff reported feeling glass in the wound.

Applying the summary judgment framework under Rule 20 and Hryniak, the court found a triable issue on breach of the standard of care.

The motion was dismissed and the court remained seized.

The defendant moved to remove opposing counsel on the basis of concurrent representation and misuse of confidential information arising from an asset purchase transaction and related holdback dispute.

The court found that the law firm acted on behalf of the moving party in attempting to collect an account receivable and then, while still retained or at minimum before that retainer ended, acted against the moving party by demanding holdback payments for the responding parties.

Applying the MacDonald Estate framework and the bright line rule from Neil and McKercher, the court held that confidential financial information had been conveyed and that the retainers were sufficiently related.

The court concluded that disqualification was required to protect the administration of justice.

The motion to remove counsel was granted.

The defendants moved to stay an Ontario action alleging breach of contract and misrepresentation arising from an agreement to establish a Toronto accounting business operation.

Applying the forum non conveniens framework, the court held that British Columbia was the clearly more appropriate forum given the parallel action already commenced there, the risk of conflicting judgments, and a non-exclusive forum selection clause consenting to British Columbia jurisdiction for disputes under the agreement.

Although the parties and witnesses were divided between Ontario and British Columbia, the need for a single proceeding to resolve identical factual issues outweighed those considerations.

The Ontario action was stayed and the defendants received partial indemnity costs.

The appellant declarant appealed an arbitral award requiring payment of a first-year condominium budget shortfall, prejudgment interest under the corporation’s bylaws, and substantial indemnity costs.

The court held that the standard of review for a Condominium Act arbitration appeal on questions of law was correctness, and found the arbitrator erred in interpreting s. 75 as barring any challenge to the propriety or reasonableness of expenses included in the shortfall.

However, because the arbitrator had in substance considered and rejected the appellant’s objections to the disputed expenses, the result would have been the same and the award was not set aside.

The court also upheld the bylaw-based interest award and the substantial indemnity costs award, including mediation costs, and dismissed the appeal.

In a commercial property boundary dispute, the applicant sought declarations of ownership over a disputed strip of land and authority to relocate a chain link fence to the surveyed property line.

The respondent argued the application was barred by abuse of process due to earlier litigation between predecessors in title and alternatively relied on adverse possession under the Real Property Limitations Act.

The court held that the respondent had not established the required ten years of adverse possession before the land was converted to Land Titles Qualified, and that s. 51(1) of the Land Titles Act barred acquisition of adverse interests thereafter.

The earlier action concerned easement and access issues, not ownership of the disputed lands, so the application was not an abuse of process.

Declaratory and injunctive relief were granted, with implementation delayed for sixty days.

This was a standalone costs decision arising from a partial summary judgment motion under the Partition Act and a related application authorizing sale of one of three disputed properties.

The court declined to award costs on the partition motion, holding that each sibling should bear their own costs in light of their conduct, the interlocutory nature of the dispute, and unresolved merits in the larger litigation.

The court awarded the parents full indemnity costs on their successful application because they had been drawn into a dispute in which they played no part and should not have had to sue their own children to disengage from title.

The unsuccessful daughter was ordered to pay $36,634.81 within 45 days, without awaiting the sale proceeds.