Civil Litigation - Plaintiff

The applicant, a second mortgagee, sought to redeem and discharge two first mortgages held by the respondent.

The parties disputed the amounts required to discharge the mortgages.

For the first property, the court allowed the respondent to add $3,000 in legal costs from a separate summary judgment motion to the discharge amount, as permitted by the mortgage terms.

For the second property, the court found that the respondent had made bona fide errors in its initial discharge statement and was therefore not bound to accept the applicant's tendered payment.

Consequently, interest continued to accrue on the mortgage.

The applicant kickboxing gym sought a declaration that its insurer had a duty to defend and indemnify it in an underlying action.

The underlying action alleged that an employee of the gym sexually assaulted a plaintiff, and that the gym was liable for negligent supervision.

The insurer denied coverage based on an abuse exclusion clause.

The court found that while the abuse exclusion applied to negligence arising directly from the assault, the pleadings also alleged broader negligent supervision that could fall outside the exclusion.

Applying the principle that the mere possibility of coverage triggers the duty to defend, the court ordered the insurer to defend the gym, but held that the duty to indemnify was premature.

The defendants brought a motion under Rule 21.01(1)(b) to strike the plaintiff's claim of negligent misrepresentation and breach of contract.

The plaintiff, a dentist, alleged he was misled during negotiations to exercise an option to purchase an interest in a dental practice.

The court found that the plaintiff failed to properly plead the necessary elements of negligent misrepresentation, including duty of care, detrimental reliance, and damages.

The court granted the motion to strike the negligent misrepresentation claim but granted the plaintiff leave to amend the statement of claim to cure the deficiencies.

The plaintiff, who suffered a perforated duodenum during an ERCP procedure, brought a motion to substitute the names of six specific physicians for the pseudonym 'Dr. Doe' in her statement of claim.

The court allowed the motion for five of the physicians, finding that the original pleading sufficiently pointed the 'litigation finger' at them based on the specific roles and acts of negligence described.

The motion was denied for the emergency room physician, as the original claim lacked specific allegations directing the litigation finger at him.

The representative plaintiff in a class action sought partial indemnity costs of $982,097.02 following a successful summary judgment motion against the defendants for breaches of gift card regulations.

The defendants argued that the parties should bear their own costs due to divided success, or alternatively, that the costs should be significantly reduced.

The court rejected the argument for divided success, finding the plaintiff was the successful party.

However, the court agreed to deduct certain items not appropriate for a party-and-party assessment, awarding the plaintiff $905,244.02 in costs.

Following a summary judgment in favour of the plaintiff and third party, the plaintiff sought reconsideration of the pre-judgment and post-judgment interest rates, arguing for the contractual rate rather than the Courts of Justice Act rate.

The court declined to reconsider the pre-judgment interest rate as it had been addressed, and clarified that the Courts of Justice Act rate also applied to post-judgment interest.

The court awarded costs of $20,000 to the plaintiff and $15,000 to the third party, payable by the defendant.

Following a decision on cross-applications regarding the severance of a joint tenancy and a life interest in a property, the court determined the costs.

The court found divided success between the parties.

Because the litigation was necessitated by the testator's failure to unambiguously sever the joint tenancy during his lifetime, the court ordered the Estate to pay the partial indemnity costs of both the Salga applicants and Ms. Marley, as well as the full indemnity costs of the Estate Trustee.

The Salga applicants were ordered to pay Ms. Marley's substantial indemnity costs for an unnecessary consolidation motion.

The applicant brought a motion to compel his 87-year-old mother to complete her cross-examination in the usual manner or to strike her affidavit.

The mother had become emotionally overwhelmed during the initial cross-examination, and medical evidence indicated that continuing in the usual manner posed a risk of harm.

The court had previously ordered an accommodated procedure, which the mother agreed to but the applicant refused.

The court dismissed the motion, finding the accommodated procedure was a reasonable alternative and the medical evidence justified the adaptation.

The applicant's request for an adjournment was also denied due to his failure to act with reasonable diligence.

A jury panel member requested to be excused from jury duty because she had recently become employed as a probation officer.

The court considered whether a probation officer is a 'person engaged in the enforcement of law' under section 3(1) of the Juries Act.

The court reviewed the duties of a probation officer under the Ministry of Correctional Services Act and similar legislation in other provinces.

The court concluded that a probation officer is engaged in law enforcement and is therefore ineligible to serve on a jury in Ontario.

The panel member was excused.

The plaintiffs purchased a pre-construction condominium unit from the defendant developer.

The tentative occupancy date was delayed by nearly 24 months, and the confirmed occupancy date was subsequently extended multiple times.

The plaintiffs were unable to secure mortgage financing and terminated the agreement, seeking the return of their deposit and damages for breach of contract.

The court found that while the developer breached the agreement by extending the confirmed occupancy date without valid unavoidable delays, the plaintiffs had affirmed the contract by continuing to press for performance.

The court dismissed the action and declined to grant relief from forfeiture, finding that the retained deposit did not constitute a windfall for the developer given its incurred costs.

The defendant appealed a consent order authorizing the court-supervised sale of a property owned by his sister.

Following the consent order, the mortgages on the property went into default, and the first mortgagee exercised its power of sale, rendering the court-supervised sale moot.

The court dismissed the appeal, finding it was moot, futile, and that the defendant failed to seek or establish grounds for leave to appeal a consent order under section 133(a) of the Courts of Justice Act.

Following a partial summary judgment in favour of the plaintiff, the court determined the reserved costs of the motion.

The plaintiff sought full indemnity costs based on a contractual indemnity provision.

The court affirmed its discretion to ensure costs are fair and reasonable despite the contractual term.

The court awarded solicitor and client costs but deducted $5,000 due to the plaintiff's delay in correcting misnamed defendants, fixing total costs at $39,803.18.

During a personal injury trial arising from a motor vehicle accident, the plaintiffs sought to qualify an anesthesiologist as an expert in chronic pain.

The court permitted the expert to testify regarding his diagnosis, observations, and prognosis of the plaintiff's chronic pain.

However, applying the Mohan and White Burgess frameworks, the court restricted the expert from opining on whether the accident caused the pain or whether the impairments met the statutory threshold for damages, reserving those ultimate issues for the jury.

The applicant municipality sought to have the self-represented respondent declared a vexatious litigant under s. 140(1) of the Courts of Justice Act and to dismiss his action under Rule 2.1.01.

The respondent had sued the municipality and police for malicious prosecution, misfeasance in public office, and false arrest following criminal charges against him.

The court declined to declare the respondent a vexatious litigant but struck out his malicious prosecution claims because the underlying criminal charges had not resolved in his favour.

The court also struck numerous scandalous and irrelevant paragraphs from the statement of claim, while allowing the misfeasance and false arrest claims to proceed under strict case management.

The plaintiff brought a motion for a status hearing to show cause why its action, arising from condominium construction defects, should not be dismissed for delay under Rule 48.14.

The court found the plaintiff failed to provide an acceptable explanation for over three years of delay and failed to rebut the presumption of prejudice, as it did not provide evidence that all relevant documents and key engineering and contracting witnesses were available.

The action was dismissed for delay.

The plaintiff was catastrophically injured in a single motor vehicle collision when the vehicle, driven by the defendant driver, lost control after traversing a dip in a rural road.

The plaintiff sued the driver and the municipality, alleging the road was in a state of non-repair.

The plaintiff and the driver entered into a Mary Carter agreement and jointly pursued the municipality for liability.

The court found that the dip in the road did not constitute a state of non-repair, as it did not pose an unreasonable risk to an ordinary reasonable driver.

The court concluded the collision was caused by the driver's excessive speed and distraction from opening a beverage bottle.

The action against the municipality was dismissed.

Following a jury trial in a fire loss action where the defendant insurer successfully defended the claim based on a material change in risk and wilfully false statements, the insurer sought costs.

The plaintiffs argued the insurer should be denied costs due to bad faith and delay tactics.

The court rejected the plaintiffs' arguments, finding they contributed significantly to the delay and failed to substantiate their aggressive bad faith allegations.

The court awarded the insurer partial indemnity costs up to the date of its settlement offer and substantial indemnity costs thereafter, totaling $616,843.27.

The defendant driver brought a motion for summary judgment to dismiss the plaintiff passenger's action and the co-defendants' cross-claim against him following a motor vehicle collision.

The moving party argued the co-defendant lost control of his vehicle on a snow-covered highway and crossed into the moving party's lane on an on-ramp.

The co-defendant argued the collision occurred in the highway's right lane during a merge.

Applying the summary judgment framework, the court weighed the evidence, including independent witness testimony and accident reconstruction evidence, and found the moving party's version of events reliable.

The court concluded there was no genuine issue requiring a trial regarding the moving party's liability and dismissed the claims against him.