Brian Shiller

The moving party sought leave to amend her statement of defence in a defamation action 15 years after it was commenced to specifically plead the limitation periods under sections 5 and 6 of the Libel and Slander Act.

The Superior Court of Justice granted the motion, finding no presumption of non-compensable prejudice because the proposed amendment merely clarified a defence that was already generally pleaded.

The proposed intervenor sought leave to intervene as an added party in the defendant's motion for leave to appeal a Mareva injunction.

The proposed intervenor argued he had an interest in the proceeding because the motion judge made significant adverse findings about his integrity and conduct, including allegations of operating a Ponzi scheme.

While the Divisional Court found the proposed intervenor had an interest in the subject matter, it declined to exercise its discretion to permit intervention.

The court noted that the defendant would likely advance the same arguments and the proposed intervenor would have other opportunities to defend his reputation in related ongoing litigation.

The motion to intervene was dismissed.

This is a costs endorsement following motions by three groups of defendants to strike the plaintiff's fresh as amended statement of claim.

The court had previously substantially granted the motion by the 1Plus12 Corporation defendants, dismissed the motions by the Ricci and Karp defendants to strike the statement of claim against them, and struck the plaintiff's affidavit.

This endorsement determines the costs payable between the parties.

The 1Plus12 defendants were awarded $17,000 in partial indemnity costs from the plaintiff, as they were substantially successful.

The Ricci defendants were awarded $9,000 in partial indemnity costs from the plaintiff, despite their motion to stay being dismissed, due to the necessity of responding to allegations of criminal conduct that were struck.

No costs were awarded to or against the Karp defendants, as their motion to strike the claim against them was dismissed, although they succeeded in striking the plaintiff's affidavit.

This endorsement concerns a costs award following a successful partial summary judgment motion brought by Deborah Scott.

The Plaintiff had made serious, unfounded allegations of criminality, immorality, deceit, theft, fraud, and elder abuse against Ms. Scott, which the court found to be without foundation.

Ms. Scott sought full indemnity costs, while the Plaintiff argued for partial indemnity costs only.

The court determined that Ms. Scott should never have been a party to the litigation and that the Plaintiff's motivation was misplaced.

Citing precedent, the court awarded Ms. Scott full indemnity costs of $282,000, inclusive of HST and disbursements, to be paid from the settlement funds.

The defendant, a long-time assistant to the deceased, brought a motion for partial summary judgment to dismiss all claims against her in a complex estate and conspiracy action.

The plaintiff alleged the defendant was part of a conspiracy to strip the deceased's estate of assets to defeat a dependant's support claim.

The court found that partial summary judgment was appropriate and that there was no evidence the defendant participated in any conspiracy, acted as a fiduciary, or committed any of the alleged torts.

The motion was granted, and all claims and cross-claims against the moving party were dismissed.

The plaintiff, a co-founder of 1PLUS12, brought an action against numerous defendants, including the corporation's lawyers and investors, alleging a Ponzi scheme and claiming unpaid compensation.

Several groups of defendants brought motions to strike the statement of claim under Rules 21.01 and 25.11 of the Rules of Civil Procedure.

The court struck the plaintiff's affidavit and the claims against the investors, finding the plaintiff lacked standing to advance claims on their behalf.

The court also struck certain scandalous and irrelevant paragraphs from the pleadings.

However, the court dismissed the motions to strike the entirety of the claims against the defendant lawyers and law firms, finding it was not plain and obvious that the claims for negligence and misrepresentation would fail.

The tenant appealed an eviction order from the Landlord and Tenant Board and obtained an automatic stay.

The tenant took no steps to perfect the appeal and accrued over $60,000 in rent arrears.

At a case management conference, the court found the appeal appeared to be an abuse of process to live rent-free.

The court ordered the tenant to pay $12,000 towards arrears and $6,000 monthly as a condition of maintaining the stay pending the appeal, and set a timetable for perfecting the appeal.

The appellant appealed an order by the OSPCA removing 89 chickens and 7 dogs from his care.

The parties reached a settlement at a case conference where the appellant surrendered the animals, the OSPCA revoked the removal order, and the appellant agreed to pay care costs.

The appellant later sought a hearing, and the OSPCA moved to dismiss the appeal for lack of jurisdiction and abuse of process.

The Animal Care Review Board found it retained jurisdiction only over costs, but dismissed the appeal without a hearing because the appellant's remaining issues were frivolous and allowing the appeal would undermine the settlement process.

The OSPCA removed animals from the appellant's home and issued a Notice of Removal.

The appellant filed an appeal after the five-day statutory appeal period had expired.

The Board held that the five-day appeal period under section 17(1) of the OSPCA Act is a jurisdictional requirement, not a procedural one, meaning the Board has no discretion to extend it.

Although the Board found that the appeal period did not begin to run until the appellant had effective notice of her rights due to language barriers and emotional distress, the appeal was still filed out of time.

The motion was granted and the appeal could not proceed.

The appellant appealed a summary judgment decision dismissing its claims against multiple respondents related to alleged breaches of exclusion and limitation of liability clauses in entertainment contracts.

The appellant raised an allegation of reasonable apprehension of bias based on comments made by the motion judge regarding a public policy argument.

The Court of Appeal rejected the bias allegation, finding the judge's comments were directed at the merits of the unsupported public policy claim, not at the appellant's indigenous culture or beliefs.

The Court upheld the motion judge's interpretation of the contractual provisions and rejection of the unconscionability argument.

The appeal was dismissed with costs awarded to the respondents.

The plaintiff brought a motion to compel the defendant to answer a refusal given during an examination in aid of execution and to require the defendant's representative to re-attend the examination.

The refusal concerned the production of the defendant's electronic QuickBooks bookkeeping data files.

The court ordered the production of the files, finding them relevant under Rule 60.18(2), subject to conditions protecting the personal information of employees.

The court also ordered the representative to re-attend the examination in person and awarded costs of $1,500 to the plaintiff.

Following a successful summary judgment motion by the defendants, the court determined the appropriate quantum of costs.

The plaintiff, a corporation represented by a non-lawyer with leave, sought costs of $7,500, which was denied due to a complete lack of success.

The court awarded the defendants $18,480.74 in costs, finding the amount fair and reasonable given the complexity of the issues and the plaintiff's overreaching claims for astronomical damages.

The plaintiff music festival promoter sued several artists, their managers, and their booking agent for alleged breaches of radius clauses in performance contracts.

The defendants moved for summary judgment relying on exclusion and limitation of liability clauses in the contracts.

The court applied the Tercon framework and found the clauses valid and applicable.

The claims against the booking agent were dismissed entirely based on the exclusion clause.

The claims against one artist who cancelled due to illness and returned her deposit were dismissed because the limitation of liability clause capped damages at the premium paid, which was zero.

For the remaining artists, partial summary judgment was granted limiting any potential damages to the lesser of the premium paid or actual out-of-pocket expenses.

The appellant appealed a libel judgment arising from nine online blog posts published during and after a human rights tribunal proceeding.

The Court of Appeal upheld the trial judge’s findings that multiple statements were defamatory, that the appellant acted with malice, and that malice defeated any otherwise available fair comment defence.

Although the court held that describing the respondent as an anti-Semite was opinion rather than fact, that error did not affect the outcome because the malice finding remained dispositive.

The court also upheld the damages award of $50,000 in general damages and $30,000 in aggravated damages, together with appeal costs to the respondent.

The OSPCA removed 71 dogs from the appellants' property, alleging they were in distress due to overcrowding, unsanitary conditions, and lack of veterinary care.

The appellants, who operated a dog rescue, appealed the removal, arguing the dogs were healthy and any distress was caused by the OSPCA.

The Animal Care Review Board found that the dogs were indeed in distress due to severe overcrowding, high parasite loads, overgrown contaminants, and untreated medical and dental conditions.

The Board concluded that the removal was necessary to relieve the distress.

The Board ordered the dogs returned subject to strict conditions, including reducing overcrowding, sanitizing the environment, and providing necessary veterinary care.

The appellants were also ordered to pay over $378,000 in veterinary and boarding costs incurred by the OSPCA.

Following the dismissal of an appeal regarding the removal of animals under the OSPCA Act, the successful respondent sought partial indemnity costs of $46,561.99.

The court considered the factors under Rule 57.01 and section 131 of the Courts of Justice Act, balancing the respondent's success against the appellant's self-represented status and the financial burden of the maintenance fees.

The court fixed costs at $25,000 inclusive of disbursements and HST.

The appellant appealed a decision of the Animal Care Review Board confirming the removal of her horses and a goat by the Ontario Society for the Prevention of Cruelty to Animals (OSPCA) due to chronic distress.

The Superior Court of Justice conducted a new hearing and found that the animals were in distress, lacking proper food, water, and veterinary care, and that the appellant had failed to comply with previous OSPCA orders.

The court upheld the removal and ordered the appellant to pay $62,554.53 in maintenance costs, deducting the costs for two horses that were mistakenly omitted from the removal notice.

A refusals motion arose during cross‑examination related to a pending summary judgment motion involving allegations that the responding party attempted to hire a hitman.

The moving party objected to questions seeking disclosure about a sealed matrimonial proceeding that allegedly involved Mareva and Anton Piller orders.

The court held the questions were irrelevant and constituted a fishing expedition aimed at embarrassing collateral matters and upheld the refusals.

The court also addressed complications arising from a witness’s alleged recantation affidavit and allegations of fabricated evidence, finding the procedural posture inappropriate for determining those issues.

In light of escalating collateral disputes and multiple related proceedings between the parties, the court stayed summary judgment motions and assumed case management over all related litigation to ensure proportional and efficient resolution.

The appellant insurer appealed a declaration that it had a duty to defend the respondent OSPCA in three separate actions alleging malicious prosecution, false arrest, and defamation arising from animal cruelty investigations.

The insurer argued that coverage was excluded by policy clauses regarding willful violation of penal statutes and by the fortuity principle, which precludes coverage for intentional harm.

The Court of Appeal dismissed the appeal, finding that the OSPCA Act is not a penal statute, exceeding a search warrant is not a Criminal Code offence, and the fortuity principle did not apply because the policies expressly covered intentional torts like malicious prosecution and the plaintiffs did not plead that the OSPCA intended the specific harm suffered.

The plaintiff brought a defamation action arising from an internet article that repeated and endorsed allegations originally published in a national newspaper accusing the plaintiff of fabricating racist material to support human rights complaints.

The defendant republished the article on a website and added commentary portraying the plaintiff as corrupt and engaged in “phony-racism.” The court found the publication clearly defamatory and rejected the defences of fair comment, qualified privilege, and responsible communication, holding that the article primarily asserted defamatory facts and that internet publication to the world was not an occasion of privilege.

The defendant had relied on a previously retracted newspaper article without conducting further verification.

General damages of $10,000 were awarded, and the defendant’s posted retraction and apology were found inadequate to reduce the damages.