Christopher Stanek

In a civil dispute concerning the origin of perennial rye grass and damages related to a golf course, the court assumed case management of the proceeding.

The judge ordered that all future motions be brought before the same judge or with that judge’s consent.

A litigation timetable was imposed requiring expert reports on the grass origin and damages issues, mediation, a meeting of experts with a joint report identifying agreed and disputed issues, and a final trial management conference.

The court also directed that the third party action be tried together with the main action.

The plaintiff law firm brought two actions against the defendants for unpaid legal accounts.

The defendants pleaded equitable set-off, alleging they were overcharged on previously paid accounts.

The plaintiff brought a motion under Rule 21.01(1)(a) to strike the equitable set-off defence, arguing it was statute-barred by the one-year limitation period in the Solicitors Act.

The court dismissed the motion, finding that material facts were in dispute regarding whether the accounts were interim or final, whether the presumption of acceptance by payment was rebutted, and whether special circumstances existed.

The court also noted that equitable set-off is generally not barred by statutory limitation periods.

The moving defendant sought security for costs under Rule 56.01(1)(a) of the Rules of Civil Procedure on the basis that the plaintiff was ordinarily resident outside Ontario and had no assets within the jurisdiction.

The plaintiff opposed the motion, asserting impecuniosity and arguing that an order for security would prevent the claim from proceeding.

The court granted leave to bring the motion despite it being brought late after the action had been set down for trial.

However, the court accepted the evidence that the plaintiff lacked financial resources and would be unable to post security.

Applying the principle that meritorious claims should not be prevented from proceeding due to poverty unless plainly devoid of merit, the court dismissed the motion.