Civil Litigation - Plaintiff

In a motor vehicle accident action, the plaintiffs brought a pre‑trial motion seeking to admit various medical documents under ss. 35 and 52 of the Evidence Act, including clinical notes and consultation reports from several physicians.

The court considered the distinction between factual medical observations and opinion evidence following the Divisional Court’s decision in Westerhof v. Gee (Estate) and related authorities.

The court held that factual portions of a deceased treating physician’s clinical notes were admissible under the principled exception to the hearsay rule and potentially as business records, but the physician’s diagnoses could not be admitted for their truth absent compliance with Rule 53.03.

Compliance with Rule 53.03 was waived in limited circumstances to allow the diagnosis to explain treatment, subject to a limiting jury instruction.

Reports from other specialists that did not comply with Rule 53.03 were excluded due to prejudice and lack of cross‑examination.

A commercial tenant sought a declaration that its lease had been validly renewed for an additional five‑year term and alternatively requested relief from forfeiture under s. 20 of the Commercial Tenancies Act.

The court held that the renewal clause, as amended, was unenforceable because it required rent to be determined by future agreement without providing a mechanism such as arbitration, making it an agreement to agree.

The tenant also failed to satisfy the conditions precedent for renewal, including timely written notice and compliance with lease obligations.

The court further found that s. 20 of the Commercial Tenancies Act did not apply where the landlord was not seeking re‑entry during the existing term, and equitable relief was unavailable because the tenant sought to obtain a new right rather than preserve an existing one.

Waiver and estoppel arguments were rejected, particularly given a non‑waiver clause and the involvement of third‑party leasing arrangements.

The Attorney General applied under the Civil Remedies Act for forfeiture of a 12‑unit residential apartment building alleged to be an instrument of unlawful activity.

Extensive police evidence showed persistent drug trafficking, frequent search warrants, arrests, and widespread criminal activity occurring throughout the building and surrounding areas.

The court found the property was used for unlawful activity likely to result in the acquisition of property through drug trafficking and therefore qualified as an instrument of unlawful activity under the statute.

The owner failed to establish that he was a responsible owner, having taken inadequate steps to prevent or address the criminal activity despite knowledge of it.

The court concluded that forfeiture was not clearly contrary to the interests of justice and ordered the property forfeited to the Crown.

Following a motion, the court determined the appropriate costs award between the parties.

The successful party sought costs on a substantial indemnity basis and relied on an earlier offer to settle under Rule 49 of the Rules of Civil Procedure.

The court rejected the argument that the motion had little chance of success and declined to award substantial indemnity costs.

It also found that the offer to settle related to the entire action rather than the summary judgment motion and therefore did not trigger Rule 49 cost consequences.

The plaintiff brought a civil action seeking damages for negligent police investigation and malicious prosecution following his arrest for criminal harassment and breach of probation.

Although he had been acquitted of the criminal charges, he alleged that police officers lacked reasonable and probable grounds and that family members knowingly provided false information leading to the charges.

The court held that the police investigation met the applicable standard of care and that the officers had reasonable and probable grounds to arrest and charge the plaintiff.

The evidence did not establish malice by the police or that the family members initiated or continued the prosecution through false information.

The plaintiff also failed to prove damages through medical or other evidence.

Following a damages award of $5,000 plus pre-judgment interest in a civil action, the court addressed the issue of costs.

The plaintiff sought disbursements and legal fees.

The court found the disbursements reasonable and awarded the full amount requested.

However, because the damages fell within the monetary jurisdiction of the Small Claims Court, the court held that the legal fees claimed were excessive and reduced the fee component before taxes.

The respondent brought a motion to enforce a settlement arising from family and related civil proceedings concerning the parties’ jointly owned business.

The moving party had accepted an offer to settle shortly after a major customer issued a notice terminating its business relationship, which allegedly significantly reduced the value of the company.

The responding party argued that the offer was no longer capable of acceptance or that enforcement would be unfair and unconscionable due to the business’s diminished value and alleged bad faith.

The court held that the responding party affirmed the settlement through post‑acceptance conduct, including excluding the other party from the business and proceeding as if the agreement existed.

The settlement was therefore enforceable and not unjust or unconscionable in the circumstances.

The defendant insurer brought a motion for summary judgment seeking dismissal of an action arising from denial of insurance coverage following an alleged vandalism incident at the plaintiffs’ retail business.

The insurer argued the claim was barred by a one-year contractual limitation period derived from fire insurance statutory conditions under the Insurance Act.

The court held that the policy was a multi-peril policy in which fire was only an incidental peril and therefore the fire insurance statutory conditions did not apply.

The court further found that the policy language did not clearly or validly contract out of the two-year limitation period under the Limitations Act, 2002.

The motion for summary judgment was dismissed and the action was allowed to proceed.

Following a trial involving a dispute over a claimed leasehold interest and alleged obligations to improve leased premises, the plaintiffs’ claim was dismissed and the defendants succeeded on a counterclaim for rent arrears in the amount of $120,000 plus prejudgment interest.

The successful defendants sought recovery of legal costs on a partial indemnity basis.

Applying the factors under Rule 57.01(1) of the Rules of Civil Procedure, the court assessed the reasonableness of the claimed fees and disbursements.

The court reduced amounts relating to certain research, an unsuccessful motion for possession, and certain disbursements.

Costs were fixed at $33,900 in fees plus $2,681.43 in disbursements inclusive of tax.

The plaintiff sought damages against one defendant for breach of contract arising from a failed investment transaction and against a lawyer who held the funds in trust for breach of contract, negligence, and breach of fiduciary duty.

The funds had been advanced pursuant to a memorandum of agreement for a proposed financial transaction, with the lawyer initially holding the funds in escrow.

The court found that the parties orally amended the agreement to allow an early release of part of the funds before trading commenced.

Because the lawyer released the funds in accordance with the amended agreement and acted solely for the borrower, no contractual, fiduciary, or negligence liability arose.

Judgment was granted against the borrower for repayment of US$150,000, while the claims against the lawyer were dismissed.

An insurer appealed an arbitrator’s ruling in a statutory accident benefits priority dispute under s. 268 of the Insurance Act and Ontario Regulation 283/95.

The arbitrator held that the respondent insurer was not an “insurer” for purposes of the scheme because there was no nexus between the accident victim and the respondent’s optional insurance policy offered through a rental car company.

The court applied the correctness standard of review and held the arbitrator erred by applying a remoteness analysis rather than the proper “arbitrariness” nexus test developed in the case law.

Even though the accident victim declined the optional policy, the connection through the rental vehicle and the insurer’s optional coverage was sufficient to establish a non-arbitrary nexus triggering the statutory scheme.

The arbitrator’s decision was set aside and the matter remitted for determination of the remaining priority dispute issues.

Following dismissal of a medical malpractice action arising from a broken jaw allegedly caused during wisdom tooth extraction, the successful defendant sought costs on a partial indemnity basis.

The trial lasted six days and involved competing expert evidence regarding negligence and liability, including a contested voir dire on the qualification of the plaintiffs’ expert.

The court accepted the defendant’s expert evidence and found the defendant entirely successful at trial.

Considering the length of the proceeding, the expert evidence, and the discounted fee claim, the court found the requested costs reasonable.

Costs were awarded to the defendant in the amount of $63,800 all inclusive.

The defendant lawyer brought a summary judgment motion dismissing a negligence action as statute‑barred under the Limitations Act, 2002.

The plaintiffs alleged they intended to acquire a 50 percent ownership interest in a corporation but instead obtained only 49 percent, and argued the limitation period was delayed because they believed the lawyer would resolve the issue.

The court held the claim was discovered when the plaintiff became aware of the altered share structure and contemplated legal action, as evidenced by contemporaneous emails.

Statements discouraging litigation or attempts to resolve the matter did not prevent the limitation period from running.

The action commenced more than two years later was therefore barred.

An Ontario resident plaintiff injured in a motor vehicle accident in New York commenced an action in Ontario against the New York driver and his own Ontario insurer under uninsured and underinsured motorist coverage provisions.

The moving party sought dismissal or a stay for lack of jurisdiction.

Applying the real and substantial connection test articulated in Club Resorts Ltd. v. Van Breda, the court held that the plaintiff’s insurance contract was not a contract connected with the dispute and any potential liability under the policy was speculative and contingent.

The plaintiff could not rely on a secondary claim against his own insurer to establish jurisdiction over a foreign defendant.

Alternatively, even if jurisdiction existed, New York was the more appropriate forum.

During a case conference in a medical negligence action, the court addressed outstanding procedural steps required for trial preparation.

The plaintiffs were ordered to complete all outstanding undertakings by a specified deadline and to deliver their expert reports shortly thereafter.

The court also scheduled a pretrial conference date.

The endorsement reflects routine case management directions to advance the litigation toward trial.

The solicitors brought a motion opposing confirmation of a Certificate of Assessment that reduced their legal account and awarded costs of the assessment hearing to the client.

The reviewing judge found no error in the assessment officer’s reduction of the solicitors’ fees on a quantum meruit basis.

However, the court held that the costs award to the self‑represented client was an error in principle because the result of the assessment was mixed and there was no evidence of costs incurred or opportunity costs lost.

The court emphasized that self‑represented litigants may recover costs only where supported by evidence of compensable loss or time beyond that ordinarily spent by a party to litigation.

The costs award was set aside while the reduced solicitor’s account was maintained.

A contractor commenced a construction lien action arising from landscaping work and a subsequent window replacement contract with homeowners.

The homeowners counterclaimed for significant damages alleging deficiencies in landscaping and improper installation of windows that leaked and were not installed in a good and workmanlike manner.

The court found minor deficiencies in the landscaping work and significant deficiencies in the window installation, awarding set‑off damages for both.

However, the homeowners failed to prove the full magnitude of their counterclaim and the court limited damages largely to the reasonable cost of reinstalling the windows.

After applying set‑offs, the homeowners were ordered to pay the contractor the remaining balance under the contract plus prejudgment interest, with each party bearing its own costs.

The defendant employer brought a motion to strike portions of an amended statement of claim in a wrongful dismissal action under Rules 21.01(1)(b) and 25.11(b) of the Rules of Civil Procedure.

The impugned pleadings related to claims for aggravated damages ("Keays damages") and punitive damages based on alleged bad faith in the manner of dismissal and alleged reprisals for whistleblowing concerning marketing practices.

The court held that it was not plain and obvious that the allegations failed to disclose a reasonable cause of action, emphasizing that damages for mental distress and punitive damages may arise from bad faith conduct in dismissal even where termination is without cause.

However, several paragraphs were struck for being unclear and unintelligible, with leave granted to replead them in plain language.

On a defendant mortgagee's summary judgment motion, the court considered whether a mortgagee in possession owed and breached a duty to act prudently regarding insurance of the mortgagor's property interest after cancellation of coverage.

The record contained material conflicts on notice of cancellation, communications between agents, and whether reliance on the mortgagee's blanket insurance could reasonably be inferred, requiring credibility assessments not suitable for summary judgment.

Applying summary judgment principles, the court held that genuine issues requiring a trial remained on duty, breach, causation, and damages, including potential accounting issues tied to any insurance recovery.

The court granted limited summary judgment only to strike the personal plaintiff's claim and the improvident sale allegation, and otherwise dismissed the motion.

The moving defendants brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike portions of the statement of claim alleging civil conspiracy and knowing receipt.

The plaintiff alleged that certain defendants participated in a scheme involving inflated pricing of asbestos encasement products supplied to a hospital project, resulting in breaches of contractual and fiduciary duties.

The court reviewed the elements required to plead civil conspiracy and knowing receipt and concluded that the pleadings lacked essential factual allegations supporting either cause of action.

The allegations were largely speculative and failed to establish concerted unlawful conduct or knowledge of misappropriated trust funds.

The court struck the impugned pleadings, granted leave to amend for most defendants, and struck the claim entirely against one defendant without leave to amend.