Civil Litigation - Plaintiff

This endorsement arises from a case management conference convened to coordinate an action and four related applications stemming from the breakup of a law firm.

The court made several procedural orders, including vacating and rescheduling hearing dates for various motions, converting a motion to written submissions, and setting timelines for affidavits and submissions.

The endorsement also addresses the interpretation of a previous order regarding cross-examinations and outlines the process for scheduling further motions, including one to compel attendance at cross-examinations and another to remove counsel of record.

Following a jury award for general damages and future chiropractic care, the court addressed several post-trial issues.

These included the applicable statutory deductible, the rate of prejudgment interest, whether future chiropractic care costs should be deducted from the plaintiff's accident benefits settlement, a request for a remedial penalty against the defendant insurer for its conduct during mediation, and the final costs award.

The court determined that the $30,000 deductible applied (as the jury award predated the statutory amendment), prejudgment interest was 5% per annum (as it is a substantive matter not to be applied retrospectively), and future chiropractic care was not deductible from accident benefits.

The court declined to impose a remedial penalty, finding the insurer's mediation participation meaningful despite its aggressive stance.

Ultimately, the plaintiff was awarded costs of $106,906.90.

An employee alleged disability discrimination, failure to accommodate, and wrongful dismissal after being placed on leave following repetitive strain injuries and later receiving a termination letter.

The court held the employer had accommodated the employee to the point of undue hardship before placing him on leave and did not breach the duty to accommodate during the subsequent leave period because the employee failed to provide medical information supporting a return to work.

However, the employer’s January 2013 termination constituted wrongful dismissal and was influenced in part by the employee’s disability.

The court awarded 15 months’ pay in lieu of notice but deducted workers’ compensation benefits received during the notice period.

Additional damages were awarded for discrimination arising from the termination itself.

The defendant moved to dismiss the plaintiff’s action for failure to comply with an order requiring $50,000 security for costs.

The self‑represented plaintiff brought a cross‑motion seeking to reduce the security amount, stay or delay the order pending other litigation, or permit security by charge against property.

The court held that the plaintiff had substantial assets and failed to provide evidence of genuine efforts to satisfy the order or obtain financing.

Finding no material change in circumstances and no justification to revisit the original order, the court refused the requested relief.

Exercising discretion under Rule 56.06 of the Rules of Civil Procedure, the court dismissed the action for default in posting security for costs.

Following dismissal of a plaintiff’s summary judgment motion in a wrongful dismissal action, the court determined costs.

The defendant had made a written settlement offer that was more favourable to the plaintiff than the ultimate outcome and would have avoided further litigation.

The court held that although the strict cost consequences of Rule 49.10 did not apply to a successful defendant, the offer remained a relevant factor under Rules 49.13 and 57.01 in exercising discretion on costs.

The court also considered the plaintiff’s failure to proceed under the simplified procedure in Rule 76 despite the claim falling within its monetary threshold.

Partial indemnity costs were awarded up to the date of the offer and substantial indemnity costs thereafter.

The plaintiff purchaser moved for summary judgment seeking return of $1.2 million in deposits paid under an aborted real estate transaction, while the defendant vendor cross‑moved for summary judgment declaring its entitlement to retain the deposits.

The dispute centred on whether the vendor improperly refused to accept a proposed subordination and standstill agreement relating to secondary financing and thereby prevented closing.

The court held that the agreement of purchase and sale permitted secondary financing only if the secondary lender subordinated its rights to the vendor’s vendor‑take‑back mortgage and related security provisions, including an escrow deed provision and an escalator clause.

The purchaser’s proposed financing arrangements would have impaired those security rights and therefore did not comply with the contract.

The court concluded the purchaser failed to close and the vendor was entitled to retain the deposits.

A trucking company sought repayment of customer payments retained by a factoring company after the parties terminated their factoring agreement.

The defendant alleged the funds were applied to a $50,000 oral consulting agreement and outstanding contractual fees.

The court rejected that evidence as inconsistent with the documentary record and drew adverse inferences from missing accounting records.

Finding no juristic reason for the defendant to retain the funds, the court held the retention constituted unjust enrichment and ordered repayment.

Purchasers brought a motion for summary judgment seeking specific performance of an agreement of purchase and sale for a residential property after the vendors refused to close.

The vendors argued the agreement was unenforceable because they did not sign it, their spouses did not consent under the Family Law Act, and the purchasers allegedly waived conditions late.

The court rejected these arguments, finding the vendors’ evidence not credible, concluding that they had executed the agreement and that the purchasers’ conditions were waived on time.

The court also held that spousal consent was not required for enforceability of the contract itself and that service of the motion on the spouses was unnecessary.

Finding the property unique due to its large pie-shaped lot, proximity to family, and access to transit, the court granted specific performance.

The defendants brought a motion under Rule 21 of the Rules of Civil Procedure seeking to strike the statement of claim for disclosing no reasonable cause of action.

The self‑represented plaintiff had served multiple unfiled amended versions of the claim and acknowledged numerous errors in the pleading.

The court held that the allegations disclosed no viable legal claim, including allegations relating to an estate while the parents were still alive, property interests not held by the plaintiff, and unsupported allegations of defamation.

The court also found that the proceeding appeared motivated by the plaintiff’s personal interest in his parents’ property and that the proper process for capacity concerns would be an application under the Substitute Decisions Act or the Health Care Consent Act.

The statement of claim was struck without leave to amend and full indemnity costs were ordered against the plaintiff.

In a slip and fall personal injury action, the defendant brought a refusals motion seeking answers to discovery questions and production of medical and accident-related records.

The court applied the relevance test under Rule 31.06(1) of the Rules of Civil Procedure and emphasized that discovery must be confined to matters relevant to the pleadings and not constitute a fishing expedition.

The court limited several requests for historical medical information to five years pre‑accident and upheld certain refusals where the requested information lacked relevance to the pleaded injuries.

However, the court ordered disclosure of documents relating to a prior motor vehicle accident to assess potential overlap of damages and avoid double recovery.

Both parties achieved mixed success and no costs were awarded.

Following a seven‑day personal injury trial arising from an accident at an amusement park, the plaintiffs obtained damages totalling $304,863.23 and the defendant’s counterclaim for contribution and indemnity against the father was dismissed.

The plaintiffs sought partial indemnity costs exceeding $226,000, while the defendant by counterclaim sought its own costs.

The court applied the principles under s.131 of the Courts of Justice Act and Rules 49 and 57 of the Rules of Civil Procedure, emphasizing proportionality, the principle of indemnity, and the reasonableness of preparation time and disbursements.

The court reduced excessive preparation hours and excluded certain disbursements but accepted the reasonableness of counsel’s hourly rates.

Costs were fixed at amounts considered fair and reasonable in light of the trial result and proportionality considerations.

The court addressed a costs dispute concerning a claimed accounting disbursement incurred during motion proceedings involving a family trust dispute.

The responding parties argued that the accounting work performed by an accounting firm was duplicative of the work performed by an expert witness retained by the moving party.

The court found that the accounting firm and the expert witness served distinct roles and that the accounting work was reasonably necessary in light of accounting evidence advanced by the opposing parties.

The court also noted that the responding parties themselves had retained multiple accounting professionals.

The challenged disbursement was therefore allowed.

The defendants sought leave to appeal an interlocutory order dismissing their motion to strike portions of a reply in a defamation action.

The underlying action alleged defamatory statements and economic interference arising from publications about forestry practices in the Canadian boreal forest.

The reply pleading introduced allegations concerning a decades-long history of alleged unlawful campaigns by environmental organizations unrelated to the pleaded claim.

The court held there was good reason to doubt the correctness of the motions judge’s order permitting the expanded reply because it risked significantly broadening the scope of the litigation beyond the pleaded dispute.

Leave to appeal was granted given the importance of defining the permissible scope of reply pleadings and the risk of prejudice, delay, and unnecessary litigation costs.

Following dismissal of an application under the Municipal Conflict of Interest Act as out of time, the court determined the appropriate costs award.

The applicant argued the matter was public interest litigation and that no costs should be awarded.

The court held that applications under the Act do not attract a blanket public interest exception and that unsuccessful applicants may be ordered to pay costs.

Although the respondents sought substantial indemnity or significant partial indemnity costs, the court found the claimed hours excessive and declined to award enhanced costs.

Costs were fixed at a reduced all-inclusive amount reflecting reasonableness and access to justice considerations.

The court considered costs following two case conferences convened on the court’s own motion due to the plaintiff’s procedural conduct in related proceedings concerning a political party’s refusal to permit him to seek its nomination as a candidate.

The plaintiff, who was self‑represented, had scheduled multiple motions contrary to court directions and attempted to reinstate a vacated motion date after abandoning an earlier proceeding.

The defendants sought $2,000 in costs, while the plaintiff requested $35,000 for work performed in the proceedings.

The court found the case conferences were necessitated by the plaintiff’s inappropriate conduct and that the defendants’ request was reasonable.

Costs of $2,000 inclusive of HST were awarded to the defendants, payable forthwith by the plaintiff.

The plaintiff contractor brought a motion seeking a preservation order under Rule 45.02 of the Rules of Civil Procedure to secure an alleged constructive trust interest in a residential property that was about to be sold.

The moving party had supplied services and materials for the construction of the property but failed to register a construction lien within the time limits prescribed by the Construction Lien Act.

The plaintiff argued that if the contract were voidable due to non‑registration under the New Home Warranty Program Act, he could assert a constructive trust claim and obtain security through a preservation order.

The court held that the Construction Lien Act governs claims arising from the supply of services or materials to an improvement regardless of whether the claim is framed in contract or constructive trust.

Allowing a preservation order would undermine the statutory lien scheme and permit the plaintiff to circumvent the Act’s deadlines.

The motion was dismissed.

Following a successful Rule 21 motion striking the plaintiff’s action arising from a motor vehicle collision with a cow on a roadway, the municipal defendants sought costs.

The plaintiff had alleged that the cow’s owner failed to confine the animal and that the municipalities failed to ensure proper confinement on private land.

After reviewing written submissions and the factors under Rule 57.01(1) of the Rules of Civil Procedure, the court determined a reasonable and fair cost award.

Emphasizing that cost awards should reflect what is fair and reasonable for the unsuccessful party to pay, the court ordered a modest all‑inclusive amount.

The defendant brought a motion for leave to withdraw an admission contained in its statement of defence acknowledging that a taxi driver involved in a collision was its employee.

The court applied the three‑part test governing withdrawal of admissions in pleadings: whether the amendment raises a triable issue, whether the admission was inadvertent, and whether the withdrawal would cause non‑compensable prejudice.

The court accepted affidavit evidence explaining that the admission resulted from inadvertence and that discovery evidence suggested the driver was actually the owner and operator of the vehicle.

The court also found no real prejudice to the plaintiff, rejecting arguments that potential loss of access to higher insurance limits constituted prejudice.

Leave to withdraw the admission was granted and costs were reserved.