Civil Litigation - Plaintiff

Following a motion in a simplified procedure action involving a claim for corporate oppression and production of documents, the court determined the issue of costs.

The moving party had largely succeeded on the underlying motion, including obtaining leave to amend the statement of claim to add an oppression remedy under the Canada Business Corporations Act and compelling answers to undertakings and production of financial records.

Applying Rule 57 of the Rules of Civil Procedure, the court considered complexity, proportionality, success, conduct of the parties, and the time and rates claimed.

The court held that the success on the motion justified an award of costs, but that the conduct alleged did not warrant elevated costs.

Costs were therefore fixed on a partial indemnity scale.

Following a 20‑day trial in which the plaintiffs obtained judgment exceeding $2.3 million against their insurance broker for failure to procure appropriate coverage, the court determined issues relating to the calculation of the judgment, costs, and interest.

The plaintiffs had delivered a Rule 49 offer to settle for $1.95 million plus interest and costs, which was less than the amount ultimately awarded at trial.

Applying Rule 49.10 of the Rules of Civil Procedure, the court held that the plaintiffs were entitled to partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

Considering proportionality, the conduct of the parties, the length of the trial, and duplication arising from a change of counsel, the court reduced the plaintiffs’ claimed costs and fixed total costs at $475,000 plus disbursements.

The defendant corporation moved for summary judgment dismissing a claim in which the plaintiff sought declarations of ownership of company shares and oppression relief under the Business Corporations Act.

The plaintiff alleged entitlement to common and Class B shares arising from an asset purchase agreement and option agreement connected to the sale of an engineering business.

The court held that the plaintiff failed to comply with the contractual requirements for subscribing to the shares, including payment and exercise of the option price specified in the agreements.

As a result, the plaintiff never acquired shareholder rights and the claim had no reasonable prospect of success.

Summary judgment was granted dismissing the action in its entirety.

The moving party sought an order under Rule 48.14(16) of the Rules of Civil Procedure setting aside a registrar’s order dismissing his action for delay.

The underlying action between brothers sought recovery of more than $400,000 allegedly arising from loans dating back to the 1990s.

The court reviewed the contextual factors governing motions to set aside dismissal for delay, including explanation for delay, inadvertence, promptness in bringing the motion, and prejudice to the responding party.

The court found lengthy unexplained inactivity, insufficient evidence of inadvertence, lack of prompt action after learning of the dismissal, and a failure to rebut presumed prejudice arising from limitation issues and evidentiary concerns.

In the circumstances, it was not just to permit the action to proceed.

In mortgage enforcement litigation, the defendants advanced a counterclaim alleging their former solicitor improperly retained mortgage proceeds and should be responsible for repayment of the loan.

The moving parties sought dismissal of the counterclaim on the basis that identical claims had previously been struck without leave to amend in earlier proceedings.

The court held that the prior decision constituted a final determination on the merits and therefore barred the renewed claim under the doctrine of res judicata.

Although the original mortgage enforcement action had been administratively dismissed and recommenced, that procedural history did not reopen the already-determined claims against the solicitor.

The counterclaim was dismissed.

Following the dismissal of a motion challenging Ontario’s jurisdiction simpliciter and asserting forum non conveniens, the successful party sought costs on a partial indemnity basis of approximately $38,000.

The court considered the reasonableness of the claimed preparation time and whether costs should include fees for both senior and junior counsel.

While acknowledging the value of mentoring junior counsel, the court held that the circumstances did not justify indemnifying the successful party for two counsel on the motion.

After assessing the complexity and importance of the motion and the reasonable expectations of the unsuccessful party, the court reduced the requested amount.

Costs were awarded in the amount of $30,000 all inclusive.

The plaintiffs brought a motion for substitute service of a statement of claim and an extension of time for service under Rules 16.04 and 3.02 of the Rules of Civil Procedure.

The action arose from a fatal pedestrian motor vehicle accident, but the defendants had not been served within the required six‑month period after issuance of the claim.

The court found the plaintiffs had made minimal efforts to locate and serve the defendants and had not demonstrated due diligence.

Applying the principles in Chiarelli v. Weins and considering prejudice arising from the delay, the court held that both presumed and actual prejudice existed, including the loss of key witnesses and impaired ability to pursue claims against other potentially liable parties.

The plaintiffs failed to rebut the presumption of prejudice.

The motion for substitute service and extension of time was therefore dismissed.

Following an earlier decision dismissing a motion by the plaintiffs to amend their statement of claim and rejecting most of their requested changes to a discovery plan in a securities class action, the court addressed costs.

The defendants sought substantial partial indemnity costs for both the amendments motion and the discovery plan motion.

The court held that the amendments motion was a significant and high-stakes procedural dispute in complex class proceedings and that the defendants’ claimed costs were within the reasonable expectations of the losing party.

The court also found that the plaintiffs’ demands regarding the discovery plan were disproportionate and that the defendants were the successful party on that motion.

Costs were awarded to the defendants both for the amendments motion and, in any event of the cause, for the discovery plan motion.

Following dismissal of an appeal concerning a municipal dispute over property use, the court addressed the issue of costs.

The respondent municipality sought substantial indemnity costs based on allegations of misconduct made by the appellant and the procedural complexity caused by the self-represented litigant.

The court held that elevated costs require reprehensible or outrageous conduct and declined to award substantial indemnity.

However, the court accepted that the appellant’s conduct significantly prolonged the litigation and increased costs.

After reducing certain disbursements and adjusting fee amounts, the court fixed partial indemnity costs payable by the appellant.

Following a successful disability insurance action, the plaintiff sought costs on a substantial indemnity basis, arguing the defendants’ conduct before and after litigation justified enhanced costs.

Alternatively, the plaintiff sought partial indemnity costs up to the date of a settlement offer and substantial indemnity thereafter under Rule 49.

The defendants argued costs before the offer should be reduced due to the plaintiff abandoning a related wrongful dismissal claim.

The court held that partial indemnity costs remained the default before the settlement offer but reduced those fees by 25% to account for the abandoned claim.

Substantial indemnity costs were awarded from the date of the offer forward, resulting in a total costs award exceeding $114,000.

The plaintiffs brought an urgent motion for interim and interlocutory injunctive relief to restrain the defendants from completing a share sale pursuant to a unanimous shareholders agreement in the context of a shareholder dispute.

The plaintiffs alleged improper termination of a director and employment relationship and sought to preserve the status quo pending trial.

Applying the test for interlocutory injunctions from RJR‑MacDonald v. Canada (AG), the court accepted that a serious issue to be tried existed but held that the plaintiffs failed to demonstrate irreparable harm.

The court found that the remedies sought, including share valuation and damages, could be adequately compensated monetarily at trial.

As a result, the motion for injunctive relief was dismissed and costs were awarded to the defendants.

Majority shareholders sought a stay of an oppression application brought by minority shareholders and related parties, relying on a broad arbitration clause in a shareholders’ agreement.

The court applied the competence‑competence principle under the Arbitration Act, 1991 and held that where it is arguable a dispute falls within the arbitration clause, the matter should be referred to arbitration for determination of jurisdiction.

Most claims, including oppression allegations, employment termination disputes, and share purchase issues, were closely connected to the shareholders’ agreement and therefore subject to arbitration.

Claims against non‑signatories and ancillary allegations were also stayed under the Courts of Justice Act as they depended on the core disputes.

The only exception permitted to proceed in court was a wrongful dismissal action by an employee who was not a party to the shareholders’ agreement.

The plaintiff brought a motion under rule 37.14 of the Rules of Civil Procedure to set aside a registrar’s administrative dismissal of an action for delay under rule 48.14.

The action concerned unpaid legal fees allegedly owed by the defendant for legal services related to land and boundary claims.

The court applied the contextual analysis derived from the Reid factors, assessing the explanation for delay, inadvertence, promptness of the motion, and prejudice.

Although the plaintiff failed to provide satisfactory explanations for litigation delay and did not bring the motion promptly, the court accepted that the missed deadline resulted from counsel’s inadvertence and found that the defendant would suffer no real prejudice because the claim would largely be determined through preserved documentary evidence.

Balancing the competing principles of timely litigation and adjudication on the merits, the court concluded it was in the interests of justice to set aside the dismissal.

Following judgment granting the applicant ownership and possession of a property and partial monetary relief against the respondents, the court addressed costs.

Although the applicant was successful on the principal issue and recovered some monetary relief, she had claimed substantially larger damages and succeeded on only a fraction of those claims.

Both parties had taken extreme litigation positions and rejected settlement opportunities.

Considering the discretionary factors under Rule 57.01 of the Rules of Civil Procedure and the familial context of the dispute, the court concluded that neither side achieved sufficient success to justify a costs award.

The court ordered that each party bear their own costs.

The defendants brought a motion for summary judgment seeking dismissal of a claim alleging wrongful dismissal, breach of contract, unpaid commissions, discrimination, and various aggravated damages arising from the termination of a financial services associate relationship.

The central issue was whether the plaintiff was an employee or an independent contractor and whether the termination was valid under the governing agreement.

Applying the legal test for employment relationships and considering the contractual terms and surrounding evidence, the court concluded that the plaintiff operated as an independent contractor.

The court further held that the agreement permitted termination where minimum commission levels were not maintained and that the evidentiary record showed the plaintiff earned insufficient commissions.

Claims for unpaid commissions and other damages, including emotional distress and discrimination, were unsupported by evidence.

The plaintiff mortgagee brought a motion for summary judgment seeking payment of a mortgage debt, possession of the mortgaged commercial property, dismissal of the defendants’ counterclaim, and leave to issue a writ of possession.

The defendants sought an adjournment to obtain counsel and additional documentation and argued that the mortgage assignment and notice requirements were defective.

The court held that the defendants failed to produce documentary evidence supporting their claims of mortgage renewal or payments and did not meet their obligation to put their best foot forward on the motion.

The court further found that notice of assignment through a notice of sale satisfied statutory requirements and that the mortgage was clearly in default.

Summary judgment and possession were granted, with issuance of a writ of possession delayed for thirty days to allow occupants to vacate.

In a motion arising from an application relating to municipal council conduct, the court addressed refusals made during examinations for discovery and whether the applicant must disclose the identity of individuals financing the litigation.

Respondent councillors had refused to answer questions about matters discussed during closed municipal council meetings under s. 239 of the Municipal Act.

The court held that in camera municipal meetings are not cloaked with confidentiality and that councillors may be required to disclose what transpired, subject only to solicitor-client privilege.

The court also ordered the applicant to disclose the identity of the person or persons who funded the legal retainer, rejecting claims that solicitor-client or litigation privilege protected the identity of the financiers.

The applicant developer sought leave to issue a certificate of pending litigation (CPL) against a condominium unit it had sold to the respondent, alleging the agreement of purchase and sale was induced by fraudulent representations concerning a larger contemplated purchase of additional units.

The applicant sought rescission and claimed the respondent held the unit in constructive trust.

The court held that the applicant had established a triable issue and a claim to an interest in land for CPL purposes.

However, applying equitable discretion and the Dhunna factors, the court concluded that the property was not unique to the applicant, damages were readily calculable, and the respondent would suffer greater harm due to a pending sale to a third party.

The motion for leave to issue a CPL was therefore dismissed.

A subcontractor commenced an action under the Construction Lien Act seeking payment for labour and materials supplied during a residential renovation project.

The defendants disputed the identity of the contracting party, the quantum of work performed, the propriety of the charges, and alleged deficiencies and improper termination.

The court found that the subcontractor company, not the individual worker, contracted with the foreman’s company and performed the work as claimed.

Allegations of deficient work and contractual termination were rejected, and the court held that payments could properly be allocated to other outstanding accounts.

The defence that the contract was void under the doctrine of ex turpi causa due to a cash arrangement intended to avoid HST was rejected.

Judgment was granted for the subcontractor for the amount of the lien and against the defaulting defendants.

The defendant moved for security for costs against a corporate plaintiff under Rule 56.01(1)(d), alleging there was good reason to believe the plaintiff lacked sufficient assets in Ontario to satisfy a potential costs award.

Although the court found evidence suggesting financial instability and concluded the moving party met the initial threshold and obtained leave under the Construction Lien Act, the motion ultimately failed.

The court held that the plaintiff had not met the high evidentiary burden to prove impecuniosity that would defeat the motion.

However, the defendant’s unexplained delay in bringing the motion, breach of case management directions, and the existence of substantial counterclaims arising from the same facts rendered an award of security for costs unjust.

The motion was therefore dismissed.