Civil Litigation - Plaintiff

The defendants brought a motion for leave to appeal an order that dismissed their motion to set aside two trial management orders.

The defendants argued that the original judge who made the trial management orders later recused himself due to a reasonable apprehension of bias, as he was the supervising judge of deputy small claims judges and the plaintiff's counsel was a deputy small claims judge.

The motions judge dismissed the motion to set aside on the basis of issue estoppel, finding the Divisional Court had already dealt with the bias issue.

The court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's order because he failed to consider Rule 59.06, and finding the issue of institutional bias to be a matter of general importance.

The plaintiff corporation brought a motion for summary judgment to enforce a mortgage against the defendant corporation.

The dispute involved two brothers, one acting as the plaintiff's director under a power of attorney from their father, and the other as the sole shareholder of the defendant.

The defendant argued that an oral agreement precluded enforcement and that the father lacked capacity to grant the power of attorney authorizing the action.

The court rejected the oral agreement defence based on the Statute of Frauds and the parol evidence rule.

However, finding a genuine issue regarding the father's capacity, the court stayed the motion for 30 days to allow the defendant's principal to commence proceedings under the Substitute Decisions Act to challenge the power of attorney.

The plaintiffs sued a discount broker, Interactive Brokers Canada Inc., in negligence after a trader they authorized to manage their corporate account lost over $1.8 million.

The plaintiffs alleged the broker breached its 'know your client' and 'gatekeeper' obligations by failing to investigate 'red flags' regarding the trader's status as an unregistered investment advisor.

The court dismissed the action, finding the broker complied with all regulatory requirements for opening a corporate account and was entitled to rely on the corporate resolution granting the trader authority.

The court also noted that even if liability were found, the plaintiffs failed to mitigate their damages after discovering the initial losses.

The applicant sought leave to appeal an arbitrator's decision regarding a construction dispute.

The arbitrator had granted partial summary judgment to the respondent and dismissed the applicant's counterclaim, finding the applicant failed to provide a 'claim made in writing' as required by the contract.

The applicant also sought leave to appeal the arbitrator's award of contractual interest.

The Superior Court of Justice granted leave to appeal on the issue of whether the correspondence constituted a 'claim made in writing', finding it raised an extricable question of law.

However, the court denied leave to appeal the interest award, concluding it involved a question of mixed fact and law regarding contractual interpretation.

Following a successful motion by the respondent to set aside a Mareva injunction, the court determined the appropriate scale and quantum of costs.

The respondent sought substantial indemnity costs of $138,144.10, while the applicant argued for partial indemnity costs of $55,000.

The court found no conduct justifying substantial indemnity costs and awarded partial indemnity costs fixed at $75,000 for fees plus disbursements, considering the complexity and the large amount at stake.

The defendant insurance broker moved under Rule 6.01 to have the plaintiff's professional negligence action tried together with her related motor vehicle tort action.

The plaintiff had sued the broker for failing to advise her of enhanced income replacement benefits following a collision.

The court granted the motion, finding that both actions involved common issues regarding the plaintiff's future income loss and that trying them together was necessary to avoid the potential for double recovery.

The moving party law firm sought permission to withdraw as counsel of record for the plaintiffs mid-trial due to non-payment of legal fees and an alleged breakdown of the solicitor-client relationship.

The clients opposed the motion, arguing that withdrawal would cause significant prejudice.

The court dismissed the motion, finding that despite a prior consent agreement, the court retained discretion to refuse withdrawal.

The court held that the clients would suffer serious prejudice as it was not feasible for them to self-represent in complex commercial litigation, they had already paid substantial fees, and the law firm held security on the clients' properties.

The plaintiff moved to restore the action to the trial list after it was struck for failure to file a certification form.

The action involved a dispute over the proceeds of a real estate joint venture.

Applying the recent Court of Appeal decision in Carioca's Import & Export Inc., the Master determined that because there was no impending administrative dismissal, the appropriate test was whether the action was ready for trial, rather than the stricter delay and prejudice test from Nissar.

Finding the action was nearly ready, the Master granted the motion and imposed a timetable for completing remaining steps.

The defendants brought a motion to bifurcate the issues of liability and damages, and to compel the plaintiff to attend independent medical assessments by a neurologist and a psychiatrist.

The plaintiff opposed bifurcation and the psychiatric assessment, but agreed to a neurological and psychological assessment.

The court dismissed the motion for bifurcation, finding no persuasive evidence that it was in the interest of justice and noting it would likely increase costs and delay.

The court also declined to order a psychiatric assessment, finding that a psychological assessment was more appropriate given the plaintiff's treatment history and to avoid needless delay and expense.

The applicant son sought a declaration of beneficial ownership in his mother's residential property based on proprietary estoppel and unjust enrichment, claiming he made financial and physical contributions to the property over decades.

The court found significant credibility issues with all parties.

The court held that the son did not establish the elements of proprietary estoppel, as his evidence regarding his expectation of an interest in the property was inconsistent and any alleged promise was for an inheritance, not a present interest.

The court also dismissed the unjust enrichment claim, finding that the son did not confer a net benefit on his mother, as the value of his rent-free accommodation far exceeded any financial contributions he made.

The application was dismissed with no costs awarded due to the unreasonable conduct of all parties.

The defendants moved to dismiss the plaintiffs' action for negligence as statute-barred under the Limitations Act, 2002.

The plaintiffs, second mortgagees, alleged the defendants failed to serve them with a notice of sale when the first mortgage went into default.

The court found that the plaintiffs knew or ought to have known they suffered damage and were worse off by September 2012, when they were served with a statement of claim in a related action.

As the plaintiffs commenced their action in January 2015, more than two years after discovering the claim, the action was dismissed as statute-barred.

Following a jury verdict awarding the plaintiff $1,837,500 for injuries sustained in a motor vehicle accident, the court determined whether the defendants could deduct a prior $1,423,323.49 Statutory Accident Benefits (SABs) settlement from the tort award.

The court found that the defendants met their burden to show subject matter and temporal matching between the SABs settlement and the jury's awards for future medical/rehabilitation and attendant care needs.

However, the court held that the deductible SABs amounts must be reduced by the legal fees incurred by the plaintiff to obtain the SABs settlement, as well as certain quantifiable expenses incurred after the settlement.

The moving parties (the Caribbean defendants) sought an order under Rule 57.07 directing that the costs of the action, previously awarded in their favour in the amount of $84,000, be made payable personally by the plaintiff's former lawyer on a joint and several basis with the plaintiff.

The underlying action had been dismissed as an abuse of process and a collateral attack on prior rulings.

The court found that the lawyer's conduct in drafting and advancing a vexatious claim with scandalous and unsupported allegations caused costs to be incurred unnecessarily.

The court granted the motion, ordering the lawyer to pay the $84,000 costs jointly and severally with the plaintiff.

The plaintiff corporation sued its former solicitor in negligence, alleging he was in a conflict of interest and breached his fiduciary duty while acting for both sides in a joint venture and subsequent purchase and sale agreement for an apartment building conversion.

The plaintiff claimed the solicitor failed to advise them of their options when purchasers resiled from agreements and failed to disclose a vendor take back mortgage provided to another party.

The court dismissed the action, finding that while the solicitor breached the Rules of Professional Conduct by failing to obtain written consent for the joint retainer, his conduct did not fall below the standard of care of a reasonably competent solicitor.

The court also found no breach of fiduciary duty, as the undisclosed information was not material, and concluded the plaintiff failed to establish causation or damages.

The plaintiff sued two doctors for medical malpractice, alleging that a failure to notify her of a referral appointment led to prolonged casting of her fractured fingers and a poorer outcome.

The court found that the referring doctor's office had properly notified the plaintiff of the appointment, which she failed to attend.

Furthermore, the court accepted expert evidence that the prolonged casting met the standard of care given the severity of the fractures, and that any delay in mobilization did not cause the plaintiff's permanent impairment.

The action was dismissed.

The plaintiff brought a motion for summary judgment against the defendant for $67,408.88 owing on two equipment leases for vending machines.

The defendant, an unsophisticated retired nurse, argued the leases were unconscionable, she lacked mental capacity due to a brain tumor, and she was induced by misrepresentations from third-party vendors involved in a scam.

The court dismissed the motion, finding that the complex issues of unconscionability, capacity, and due diligence required a full trial with viva voce evidence to achieve a fair and just determination.

The court heard a motion to settle the order resulting from a previous finding of contempt and sentence against the plaintiff.

The court resolved disputes over the preamble, prayer for relief, and specific paragraphs of the draft order.

The court also clarified the calculation of funds to be disbursed from the defendants' counsel's trust account to the plaintiff, determining the final amount to be $35,986.77, and set the date from which interest should be calculated.

Both parties were ordered to bear their own costs for the motion.

Following a judgment, the plaintiffs requested a reconsideration based on allegations of misleading and inaccurate evidence.

The court declined to reconsider the decision but issued supplemental reasons varying the judgment to stay enforcement pending the determination of the plaintiffs' upcoming summary judgment motion.

The plaintiffs brought a motion to certify a class action against several manufacturers of lithium-ion batteries, alleging a price-fixing conspiracy that artificially inflated prices for direct and indirect purchasers in Canada.

The court certified the action solely for the statutory cause of action under section 36 of the Competition Act.

The court excluded 'umbrella purchasers' (those who bought from non-defendants) from the class, finding it plain and obvious they lacked a cause of action due to indeterminate liability and lack of restitutionary basis.

The court also declined to certify the common law claims for unlawful means conspiracy and unjust enrichment, holding that they were precluded by the comprehensive statutory scheme of the Competition Act.

The remaining certification criteria were met for the statutory claim.

The appellant brought a motion to reopen a final judgment based on fresh evidence, specifically a document ('exhibit H') purporting to show the correct zoning for his property, which would resolve a dispute over a revoked building permit.

The court found it had jurisdiction to reopen the case under Rule 59.06(2)(a) to prevent a miscarriage of justice, despite the appellant's lack of reasonable diligence in bringing the document forward.

However, after reviewing the evidence, the court concluded that exhibit H was not an authentic document.

The motion to alter the previous judgment was dismissed, and the original remediation timetable remained in effect.