Civil Litigation - Plaintiff

The court issued a costs endorsement following the dismissal of the defendants' anti-SLAPP motion under s. 137.1 of the Courts of Justice Act.

Both parties sought costs.

The defendants claimed over $250,000 for eight different court steps, arguing the self-represented plaintiffs caused unnecessary legal expenses.

The plaintiffs sought $30,000 for successfully defending the motion.

The court awarded the defendants $34,000 for various interlocutory steps, finding the plaintiffs' litigation strategy was disproportionate and caused unnecessary expenses.

The court declined to award costs to the plaintiffs for the s. 137.1 motion, applying the statutory presumption against costs for successful responding parties due to their conduct.

The plaintiff vendor brought a motion for summary judgment after the defendant purchaser failed to close a residential real estate transaction.

The defendant's counsel of record requested an adjournment because the lawyer-client relationship had broken down, but the court refused, finding the request to be a delaying tactic.

As the defendant filed no responding materials, the court treated the matter akin to a default judgment and awarded the plaintiff $234,937.13 in damages, representing the difference in resale price and expenses less the forfeited deposit, plus costs.

The applicants, five individuals experiencing homelessness, sought an interlocutory injunction to prevent the City of Hamilton from enforcing a by-law prohibiting camping in city parks.

They argued that enforcement during the COVID-19 pandemic and housing crisis violated their rights under section 7 of the Charter and the Human Rights Code.

The court applied the RJR-MacDonald test.

While finding a serious issue to be tried, the court concluded the applicants failed to establish irreparable harm specific to themselves, as they had been offered or received shelter.

The court also found the balance of convenience favoured the City, citing the public interest in safe parks, the City's efforts to provide shelter and supports, and the health and safety risks associated with the encampments.

The motion for an injunction was dismissed.

The applicants sought a declaration that they were permitted to install solar panels on their home's roof despite a restrictive covenant requiring the developer's approval for any 'structures'.

The developer had demanded the removal of the partially installed solar panels.

The court found that while solar panels do constitute a 'structure' under the covenant, the covenant itself was unenforceable for uncertainty.

The provision gave the developer unfettered discretion to approve or reject structures without setting out any objective criteria.

Consequently, the applicants did not require the developer's approval to proceed with the installation.

The court addressed scheduling for a package of motions, including the defendant's motion to strike and the plaintiff's motions to add parties and seek leave to plead malicious prosecution.

The court determined that the two hours booked were insufficient and that the motions needed to be sequenced, with pleadings finalized before the motion to strike could be heard.

The plaintiff's motion to lift a publication ban from related criminal proceedings was directed to the criminal court judge who issued it.

The remaining motions were adjourned and scheduled for future dates.

Following a decision traversing a motion in writing to be heard in open court, the parties submitted written submissions on costs.

The court determined that the most fair and reasonable disposition was to reserve the issue of costs to the judge who ultimately presides over the motion in open court.

The plaintiff municipality obtained a judgment against the defendant in a related tort action.

Shortly before the trial of that action, the defendant transferred his property to his mother for significantly less than market value.

The plaintiff brought an action to set aside the transfer as a fraudulent conveyance.

The defendants failed to file statements of defence and were noted in default.

The court applied the 'badges of fraud' doctrine and found the transfer was made with the intent to defeat creditors.

The court granted default judgment and set aside the property transfer.

The applicant school board sought an order requiring the respondent insurer to defend and indemnify it in an underlying action concerning historical sexual abuse.

Neither party could locate the original insurance policy from the 1979-1980 school year.

The court held that the applicant met its burden of proof using secondary evidence, including an excess policy schedule and standard policy wordings from the era, to establish the existence and terms of the missing policy.

The application was granted.

The applicant sought an urgent injunction to prevent the respondent physician from performing an apnea test on the patient, who had suffered a severe brain injury, to determine neurological death.

The patient's mother, acting as substitute decision-maker, refused consent for the test and applied to the Consent and Capacity Board to determine if the test constituted 'treatment' under the Health Care Consent Act.

The physician argued the test was an assessment not requiring consent and that the Board lacked jurisdiction.

The court granted the injunction, holding that the Board is the appropriate body to determine at first instance whether an apnea test constitutes 'treatment' requiring consent under the Act, and that the RJR-MacDonald test for an interim injunction was met.

The plaintiff obtained an ex parte Mareva injunction against his brothers and their jointly owned corporations amidst a family business dispute.

On the return motion, the defendants argued the injunction should be set aside due to the plaintiff's failure to provide full and frank disclosure of material facts, including his involvement in prior litigation and his control over a corporate mortgage.

The court agreed that the plaintiff breached his duty of full and frank disclosure and discharged the Mareva injunction over the defendants' personal assets.

However, the court exercised its discretion to grant an alternate interim injunction securing specific corporate cash accounts and real properties pending trial.

The plaintiffs brought a motion to approve a $13,375,000 settlement in a class action against a fertility doctor who allegedly used incorrect genetic material, including his own, during artificial insemination procedures.

The court found the settlement to be fair, reasonable, and in the best interests of the class members, noting the novel legal issues and the emotional toll of continued litigation.

The court also approved class counsel's 25% contingency fee of $3,343,750, recognizing the significant risk, time investment, and successful outcome achieved.

The applicants brought an ex parte application for a Norwich Order against the respondent bank to obtain banking records.

The applicants alleged they transferred $625,000 to their daughter to hold in trust, but she liquidated the funds without permission while under the psychological influence of her boyfriend.

The court applied the test for a Norwich Order and found the applicants provided sufficient evidence to trace the funds in support of a resulting trust claim.

The application was granted.

The appellants appealed an arbitration award, arguing the arbitrator lacked jurisdiction and erred by proceeding in their absence after they refused to execute the arbitration agreement and did not attend the hearing.

The Superior Court of Justice dismissed the appeal, finding that the arbitrator correctly proceeded under section 27(3) of the Arbitration Act.

The court held that any jurisdictional objection must be raised before the arbitrator at the beginning of the hearing, which the appellants failed to do.

The plaintiff security company brought a Simplified Procedure action against the defendants for unpaid standby security services provided during a potential labour strike at the Sheraton hotel.

The court found that a contract was formed based on email exchanges between the parties and that the plaintiff performed the standby services.

The court awarded the plaintiff $32,950.80 in damages for the unpaid invoice.

However, the court dismissed the plaintiff's claims for punitive damages, personal liability against the individual defendant, and the tort of deceit, finding insufficient evidence of dishonesty or an independent actionable wrong.

The moving party, Onespace Unlimited Inc., brought a motion to strike portions of a reply affidavit sworn by the responding party's principal witness in advance of a summary trial.

The moving party argued the impugned statements contained improper argument, opinion evidence from a lay witness, and legal conclusions.

The court granted the motion in part, striking statements that constituted improper argument or unqualified expert opinion, while retaining statements that were factual observations or inextricably tied to the witness's overall impressions.

The plaintiff condominium corporation brought a motion for an interlocutory compliance order and restraining orders against a unit owner and its principals/agents.

The plaintiff alleged that the defendants engaged in a multi-year pattern of threatening, abusive, and harassing behaviour towards the board of directors, property management, and other unit owners, including threats of litigation and physical intimidation.

The court found that the defendants' conduct violated section 117 of the Condominium Act, constituted workplace harassment under the Occupational Health and Safety Act, and was oppressive under section 135 of the Condominium Act.

The court granted interlocutory orders restraining the defendants from further harassment and from soliciting proxies.

The applicant brought an application claiming that the Canada Revenue Agency (CRA) seized funds from her father's accounts that rightfully belonged to her from an inheritance in Nigeria.

The father supported the application, contradicting his own previous sworn evidence that the funds were his own inheritance.

The court dismissed the application, finding no evidence that the father held the funds in trust for the applicant or that any identifiable funds belonging to the applicant were seized by the CRA.

The court awarded costs of $10,000 to the CRA, payable jointly and severally by the applicant and her father due to their complicity in bringing the misconceived application.

The defendants brought a motion to vacate a Certificate of Pending Litigation (CPL) registered against a luxury property by the plaintiff, a construction project manager.

The plaintiff claimed damages for breach of contract and unjust enrichment, seeking a constructive trust after allegedly financing the construction out-of-pocket.

The defendants argued the CPL should be vacated because the property had been sold, it was not unique, and damages were an adequate remedy.

The court dismissed the motion, finding the plaintiff had a reasonable claim for a constructive trust and that a monetary remedy would be illusory since the defendants had relocated to Hong Kong and appeared to have no other assets in Canada.

The moving party, the plaintiff's former lawyer, sought costs of his successful motion to be removed as lawyer of record.

The plaintiff opposed and sought costs herself, making unsubstantiated allegations against the lawyer.

The court awarded the moving party costs on a substantial indemnity basis due to the plaintiff's failure to comply with court directions, filing of voluminous irrelevant materials, and making scandalous and unsubstantiated allegations against the lawyer.

In a civil action concerning easements and rights of way over farm properties, the moving party (defendants) brought a motion seeking to prohibit the plaintiff from tendering updated real estate appraisal evidence, to strike a paragraph of an affidavit as hearsay, and to compel the production of accounting records.

The case management judge declined to prohibit the appraisal evidence as the plaintiff confirmed no further report would be delivered, and extended the deadline for responding evidence.

The judge also found it premature to strike the affidavit paragraph, leaving the hearsay issue for trial.

Finally, the judge ordered the plaintiff to produce its balance sheets for 2015-2020, deferring any further production requests.