Bronwyn Martin

On a motion to quash, the court considered whether an appeal from dismissal of a contempt motion was interlocutory.

Applying established principles, it held the order was interlocutory because underlying proceedings remained ongoing and other procedural avenues were available.

The appeal was quashed for want of jurisdiction.

The appellants commenced an action against the respondent, a personal injury lawyer, for damages arising from the non-payment of referral fees allegedly owed under an oral contract spanning 1984 to 2018.

The appellants claimed entitlement to 10% of gross settlements or awards on over 130 referred lawsuits.

The respondent denied the existence of any contract and brought a summary judgment motion relying on denial of contract, alleged illegality, and limitation defences.

The motion judge found genuine issues requiring trial regarding contract existence and legality but granted partial summary judgment on limitation grounds, dismissing claims for lawsuits settling before December 10, 2017.

The appellants appealed, arguing the motion judge erred in characterizing the contract and in failing to recognize that the cause of action did not arise until the relationship ended in 2018.

The Court of Appeal dismissed the appeal, finding the motion judge correctly determined that the cause of action accrued when each referred lawsuit settled and payment was not made, regardless of whether the full extent of damages was known.

This costs endorsement addresses the fixing of costs following the dismissal of the plaintiff’s action for delay.

The court reviews the parties’ submissions on quantum, the applicable legal principles under the Courts of Justice Act and Rules of Civil Procedure, and the reasonableness of the fees claimed.

The court ultimately fixes costs in favour of the defendant Town of Bracebridge, finding the amounts sought to be fair and proportionate given the complexity and history of the litigation.

The plaintiff, David Richard Reid, brought a motion to set aside the Registrar’s order dismissing his 2015 action for delay.

The court reviewed the history of related litigation between Reid and the Town of Bracebridge, including prior settlements, subsequent actions, and procedural steps.

Applying the contextual approach to the four-factor test for setting aside a dismissal for delay, the court found that Reid failed to provide a satisfactory explanation for the delay, did not show inadvertence, and failed to rebut the presumption of prejudice to the defendants.

The motion was dismissed and the Registrar’s dismissal order confirmed.

The appellants sought a panel review of a single judge's decision dismissing their motion for an extension of time to perfect their appeal.

The underlying action against Dominion Lending Centres Inc. and others for alleged mortgage fraud was dismissed by the Superior Court as frivolous, vexatious, and an abuse of process.

The appellants argued the single judge dismissed the motion solely on procedural grounds without considering the merits.

The Court of Appeal rejected this argument, noting the single judge explicitly found the grounds of appeal devoid of merit and the lower court's reasons cogent.

The motion for panel review was dismissed with costs.

The appellants, Orllyn Loney and Yvonne Prouty, appealed the dismissal of their motion to amend their statement of claim to correctly name the driver and owner of a tractor-trailer (Michael George Alexander Mills and 564242 Ontario Limited, also known as Liftlock) as defendants, replacing "John Doe" and "ABC Corporation".

The motion was brought almost ten years after the accident and over three years after the action was set down for trial.

The motion judge denied leave, finding no sudden change in circumstances and non-compensable prejudice due to the lengthy, unexplained delay.

The Court of Appeal upheld the motion judge's decision, finding no palpable and overriding error in her exercise of discretion.

The court emphasized the importance of adhering to limitation periods and the actual prejudice caused by the delay, including the loss of timely discovery opportunities for the proposed defendants.

The Court of Appeal for Ontario heard a motion to quash an appeal brought by the respondents (defendants in the original action) on jurisdictional grounds.

The appellant (plaintiff) sought to appeal an interlocutory order from the Superior Court of Justice that removed his counsel of record.

The Court of Appeal confirmed that an order for the removal of counsel is interlocutory and must be appealed to the Divisional Court with leave, not directly to the Court of Appeal.

Consequently, the motion to quash the appeal was granted, and costs were awarded to the moving parties.

The defendants brought a motion to remove the plaintiff's counsel, Douglas LaFramboise, alleging a conflict of interest.

LaFramboise had previously represented the defendants (Rabba Foods) in an earlier personal injury action brought by the plaintiff, which is now the subject of the plaintiff's current negligence claim against the Alam defendants.

The court found that LaFramboise was a material witness to the communications and negotiations central to the current negligence claim, particularly regarding the costs the plaintiff incurred.

The court determined that LaFramboise's dual role as advocate and potential witness created an inherent conflict of interest, compromising the proper administration of justice.

The motion to remove LaFramboise as counsel was granted.

The plaintiffs sought leave to amend their statement of claim to substitute "John Doe" and "ABC Corporation" with specific names (Michael George Alexander Mills and 564242 Ontario Limited) on the basis of misnomer, and also sought leave to bring this motion after the action was set down for trial.

The court dismissed the motion, finding that the plaintiffs had not provided a reasonable explanation for the extraordinary delay in identifying the correct defendants and bringing the motion, and that the proposed defendants would suffer non-compensable prejudice due to the lengthy delay.

This is a costs endorsement following the dismissal of an appeal and a motion for fresh evidence.

The Court of Appeal for Ontario awarded costs to the respondents, Jonathan Speigel, Lawyers’ Professional Indemnity Company (LawPRO), and Garen Kassabian, payable by the self-represented appellants, Rhys Fockler and Lyn Cartwright.

The costs were set at $7,500 for Kassabian and $7,500 for Speigel and LawPRO, inclusive of disbursements and taxes.

The appellants appealed a summary judgment dismissing their action and an order refusing to set it aside, arguing errors in the limitation period finding and their absence from the summary judgment hearing.

They also sought to introduce fresh evidence.

The Court of Appeal dismissed the motion for fresh evidence, finding it lacked due diligence and would not have affected the outcome.

The court upheld the motion judge's finding that the action was statute-barred, as a reasonable person would have discovered the claim shortly after closing, despite the appellants' claim of late discovery of the reporting letter.

The applicants sought a declaration that their home insurer was required to reimburse them for legal costs and settlement amounts from an underlying action, despite providing notice to the insurer almost seven years after the action commenced.

The insurer denied coverage due to the late notice.

The court held that while relief from forfeiture can apply to pre-tender defence costs, it should not be granted in this case.

The applicants failed to establish that the nearly seven-year delay was not a grave breach or that the prejudice to the insurer was disproportionate to the forfeited coverage.

The application was dismissed.

The plaintiff, an Ontario resident, booked a cruise with the defendant and subsequently sued in Ontario for injuries sustained from a slip and fall on the ship.

The defendant moved to stay the action based on a forum selection clause in the ticket contract that conferred exclusive jurisdiction to Florida courts.

The court applied the two-step test for forum selection clauses, finding the clause valid, clear, and enforceable, and rejecting arguments of unconscionability.

The plaintiff failed to show strong cause to decline enforcement.

The court also set aside the service ex juris, noting the plaintiff relied on a revoked rule.

The motion was granted and the action stayed.

The appellants appealed a summary judgment dismissing their medical malpractice action as statute-barred.

The Court of Appeal affirmed the motion judge's finding that the claim was discoverable no later than February 6, 2014, when the family met with a medical malpractice lawyer, and therefore the action, issued on April 11, 2016, was out of time.

The court rejected the argument that expert reports were necessary for discoverability, emphasizing that a claim is discovered when a plaintiff has knowledge of material facts for a plausible inference of liability, not necessarily when the merits are confirmed by expert opinion.

The plaintiffs appealed case conference orders directing that the defendants' liability be determined by summary judgment motions involving viva voce cross-examination of five expert witnesses.

The Divisional Court held that while a case conference judge has jurisdiction to make orders involving powers under Rule 20.04, such jurisdiction should be exercised sparingly.

The court found the case conference judge erred in principle by making the orders without an evidentiary record and by inverting the proper analysis.

The appeal was allowed, the orders were set aside, and the liability case against the Eaton Centre defendants was directed to proceed to trial.

The plaintiff slipped and fell on a temporary walkway adjacent to a subway construction site during a heavy snowfall.

She sued the City of Toronto, the Toronto Transit Commission, and the general contractor for negligence and gross negligence.

The defendants brought a motion for summary judgment.

The court found that snow removal was actively underway when the plaintiff arrived and that the defendants' actions were reasonable.

The court granted the motion and dismissed the action, finding no genuine issue requiring a trial regarding occupiers' liability or municipal gross negligence.

The moving party defendant brought a motion for leave to appeal a prior decision.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding party plaintiffs.

The appellant, 9383859 Canada Ltd., appealed a lower court decision that dismissed its actions for disclosing no reasonable cause of action.

The respondents, Kubeskaran Navaratnam, Ronald Lachmansingh, and Marilyn Reiter Nemetz, brought motions to dismiss the appeal due to the appellant's failure to comply with a security for costs order.

The Court of Appeal for Ontario granted the motions, dismissing the appeal.

The court found that the appellant had not provided compelling reasons for its non-compliance and that it was in the interests of justice to dismiss the appeal, given the appellant's lack of assets and the manifest weakness of the underlying appeal.

The plaintiffs brought motions for leave to appeal the October 9, 2020 and November 6, 2020 orders of the motion judge.

The Divisional Court granted the motions for leave to appeal and fixed costs of the motions at $10,000, payable at the discretion of the panel hearing the appeal.

This endorsement concerns the costs of a successful Rule 21 motion brought by the defendants.

The court applied the principles of costs awards, including the factors under Rule 57.01 of the Rules of Civil Procedure, to determine fair and reasonable partial indemnity costs.

The defendants were wholly successful on the underlying motion, and their requested costs were found to be proportionate and within the parties' expectations.

The court awarded specific partial indemnity amounts to each successful defendant, payable by the plaintiff.