Civil Litigation - Plaintiff

The applicants, former franchisees, brought an application to enforce a settlement agreement requiring the respondent franchisor to pay $100,000.

The respondents withheld payment, arguing the applicants breached the agreement by continuing to use the franchise's store design and branding.

The court found that the applicants' use of generic open-concept shelving and flooring did not infringe on the franchisor's protected branding.

The court held that the respondents breached the settlement agreement and the duty of fair dealing under the Arthur Wishart Act by withholding the funds.

The application was granted and the respondents' counter-application was dismissed.

In an obstetrical malpractice action, the defendant midwives and physicians brought motions for an order compelling the infant plaintiff and his biological parents to undergo blood tests for specific genetic testing.

The defendants argued that the infant's severe neurocognitive impairments may have a genetic etiology rather than being caused by perinatal hypoxia.

The plaintiffs opposed the motions, arguing that the court lacked jurisdiction to order genetic testing due to the federal Genetic Non-Discrimination Act, and that the defendants were liable for all injuries under the thin skull doctrine regardless of any genetic predisposition.

The court held that it has the authority to order genetic testing under section 105 of the Courts of Justice Act and Rule 33.

Finding that the possibility of a genetic cause was not frivolous and that the factors of fairness, necessity, and prejudice weighed in favour of the defendants, the court ordered the infant and his biological parents to provide blood samples for genetic testing.

The defendants in a proposed class action regarding NSF fees brought a motion under s. 4.1 of the amended Class Proceedings Act to have their summary judgment motion heard before the plaintiff's certification motion.

The court interpreted the new s. 4.1, finding it creates a presumption that pre-certification motions which may dispose of or narrow the proceeding should be heard first, unless there is a good reason to hear them together.

Finding that the defendants' summary judgment motion raised genuinely arguable issues and was not a delay tactic, the court granted the sequencing motion.

The defendants/plaintiffs by counterclaim brought a motion to further extend the peremptory set-down deadline of December 31, 2019.

The responding parties opposed the extension and sought to dismiss the action for delay.

The court found that the moving parties had deliberately failed to comply with the peremptory order and had not demonstrated any exceptional circumstances to justify varying it.

The motion for an extension was dismissed, and the court directed the Registrar to dismiss the action for delay.

The defendants brought a motion to extend the allotted discovery time under the simplified procedure rules to examine two non-parties.

The plaintiff had strictly enforced the three-hour limit under Rule 76.04(2) during his examination, despite having examined the defendants for over five hours.

The court found the plaintiff's conduct to be sharp practice but concluded it had no discretion to extend the time limit under Rule 76.04(2).

The motion was dismissed, but the defendants were awarded costs due to the plaintiff's lack of professional courtesy.

The plaintiff, a minor who suffered a skull fracture when struck by a reversing vehicle, sought court approval of a $620,000 settlement under Rule 7.08.

The court approved the settlement amount but found the proposed 25% contingency fee of $124,576.15 unreasonable given the low risk of non-recovery and the docketed time.

The court reduced the legal fee to $100,000 and ordered the balance of the proceeds to be paid into court for the minor's benefit.

The applicant sought a declaration of ownership by adverse possession over a portion of the respondent's land, as well as an order to remove a fence and trees.

The respondent argued the application was an abuse of process because the applicant had previously brought a similar claim in 2017, which was dismissed.

The court agreed with the respondent, finding that the issue of adverse possession over the subject lands had already been determined in the prior action, where it was established that the previous owners had no intention to exclude the true owners.

The application was dismissed on the basis of res judicata.

The applicants sold a residential property to the respondent, who failed to close the transaction after multiple extensions.

The applicants subsequently resold the property in a falling market for a substantially lower price and sought damages for the difference in purchase price and carrying costs.

The court awarded damages of $817,756.08, compensating the applicants for the drop in property value and carrying costs, but excluded claims for real estate commissions not paid on the original transaction and renegotiated interest.

The self-represented plaintiff sought leave to amend his statement of claim in a solicitor negligence action to add new allegations, add a new defendant lawyer, and increase his damages claim to $100 million.

The court granted leave to amend the claim against the existing defendants, finding a triable issue on whether the new allegations were statute-barred and that they disclosed a reasonable cause of action.

However, the court denied leave to add the new defendant, as the claims against her were clearly statute-barred and no reasonable cause of action was pleaded.

The plaintiff was permitted to increase the damages claim and continue in the ordinary procedure.

The plaintiff landlord brought a motion for summary judgment to recover arrears of rent from the defendant commercial tenant.

The tenant argued it was relieved of its obligation to pay rent because the COVID-19 pandemic and resulting government restrictions triggered the lease's force majeure clause or frustrated the contract.

The court found that while the government restrictions triggered the force majeure clause, the clause explicitly did not excuse the tenant from paying rent.

The court also held that the doctrine of frustration did not apply because the lease did not require the tenant to operate a retail store, the disruptions were temporary, and the force majeure clause demonstrated the parties had contemplated such circumstances.

Summary judgment was granted in favour of the landlord.

The plaintiff employer sought an interlocutory injunction to restrain a former employee from competing, soliciting customers, or using confidential information.

The court applied the strong prima facie case standard because the injunction would restrict the employee's livelihood.

The court found the restrictive covenant had expired years prior, the employee was not a fiduciary, and the customer list was not proprietary confidential information.

The motion for an injunction was dismissed, but a sealing and protective order was granted on consent.

The applicant subcontractor sought an order that the respondent law firm pay $39,812.68, which the firm had received from its client (the general contractor) for legal fees.

The funds originated from a settlement in a construction lien action.

The court found that the funds were impressed with a statutory trust under section 8 of the Construction Lien Act.

The court held that the law firm was in 'knowing receipt' of trust funds when it transferred the money from its trust account to its general account to pay its legal fees, as it had knowledge of the applicant's outstanding trust claim against the contractor.

The law firm was ordered to pay the funds to the applicant as a constructive trustee.

The applicant landlord sought an urgent hearing prior to the expiry of a conditional period in a new lease to determine if the respondent tenant had a consent right over the proposed change of use to a call centre.

The respondent sought an adjournment because its lead counsel was unavailable on the scheduled date and opposed a weekend hearing due to the impact on junior staff and preparation time.

The court granted the adjournment, noting the lack of objective urgency, the landlord's voluntary assumption of the deadline, and the importance of health and wellness for legal practitioners during the pandemic.

The defendants brought a motion to amend their Statement of Defence and Counterclaim to add a new party and claim damages for negligent misrepresentation.

The plaintiff opposed the motion on the basis that the proposed claim was statute-barred under the Limitations Act, 2002.

The court found that the defendants failed to provide a sufficient evidentiary record to rebut the presumption of discoverability under section 5(2) of the Act.

The motion to amend the pleadings and add the party was dismissed.

The plaintiff in a motor vehicle accident case brought a motion to exclude potential jurors who pay auto insurance premiums, arguing they have an inherent conflict of interest.

The plaintiff sought to introduce survey evidence suggesting residents would limit damages to lower their premiums.

The court excluded the survey evidence as inadmissible hearsay that failed the threshold test for expert evidence.

The court dismissed the motion, finding no statutory basis in the Juries Act to exclude such jurors or permit a broad challenge for cause, and no evidence of widespread bias to justify striking the jury notice.

The plaintiff sued the Niagara Regional Police Services Board and several officers for negligent investigation and Charter breaches after being arrested and detained for 78 days on charges that were ultimately withdrawn.

Following a 9-day trial, the court found that while one officer breached the standard of care by failing to review a video interview, this omission did not cause the plaintiff's continued incarceration.

The court concluded the police had reasonable and probable grounds for the arrest and the plaintiff failed to mitigate his damages.

The action was dismissed.

The applicants sought a declaration of ownership by adverse possession over portions of the respondents' adjacent cottage property, or alternatively, a prescriptive easement for access and utility maintenance.

The properties were originally owned by family members who built cottages without regard to formal lot lines.

The court granted the applicants ownership of one portion (Part 3) by adverse possession, finding they had effectively excluded the true owners by building an extension and retaining wall.

The court also granted a limited prescriptive easement over another portion (Part 2) for an existing underground septic system.

The claims for adverse possession and prescriptive easement over the remaining disputed lands, including a shared driveway, were dismissed.

The plaintiff was injured in a motor vehicle accident and sued the vehicle manufacturer and dealer.

In a second action, the plaintiffs sued their insurer for failing to preserve the vehicle.

The insurer issued a third-party claim against the plaintiffs' lawyers, alleging they were negligent in failing to preserve the evidence.

The third-party lawyers moved to strike the claim.

The court granted the motion, holding that any negligence by the lawyers fell within the scope of their agency and would be attributable to the plaintiffs, making the third-party claim unnecessary.