Colin R. Dubeau

The decision addresses two motions in a commercial real estate dispute: a motion to strike claims against individual condominium directors, and a motion for production of documents.

The court struck the claims against the directors but granted the plaintiff leave to amend, finding the pleadings did not sufficiently distinguish the directors’ conduct from that of the corporation.

The court also dismissed the plaintiff’s production motion, holding that privilege over communications with counsel and the property manager was not waived by the addition of the property manager as a third party.

The ruling clarifies the high threshold for personal liability of condominium directors and the scope of privilege in multi-party litigation.

The Superior Court of Justice dismissed a civil action brought by Stephen Massey, purportedly also on behalf of his two daughters (J.M. and C.M.), against 31 defendants including the Children's Aid Society, the Office of the Children's Lawyer, various lawyers, and his ex-wife.

The claim, a collateral attack on prior family law proceedings that concluded in 2016, alleged child abuse and professional misconduct.

The court dismissed the action against Mr. Massey with prejudice due to his failure to attend case conferences, non-compliance with court orders, and the action being frivolous, vexatious, and an abuse of process, largely barred by the limitation period.

The claim on behalf of J.M. and C.M. was dismissed without prejudice, acknowledging potential discoverability issues and the uncertainty of their authorization.

The court imposed a leave requirement for Mr. Massey to initiate future proceedings against these defendants and awarded costs against him.

The moving party brought a motion for leave to appeal the order of Rees J. dated November 30, 2023.

The Divisional Court dismissed the motion for leave to appeal and ordered no costs.

Following the dismissal of the defendant's motion for summary judgment, the plaintiffs sought costs on a substantial indemnity basis, arguing the motion was unreasonable under Rule 20.06.

The defendant argued for partial indemnity costs.

The court found that while the motion was misguided and caused delay, the defendant did not engage in improper conduct, noting that a case conference judge had permitted the motion to proceed without objection from the plaintiffs regarding its suitability.

The court awarded the plaintiffs costs on a partial indemnity basis fixed at $12,500.

The plaintiffs brought a motion for partial summary judgment on liability in a solicitor's negligence action against their former lawyer and his firm.

The plaintiffs alleged the lawyer failed to prepare a promissory note to support a General Security Agreement, weakening their bargaining position with a debtor.

The court found that while the lawyer breached the standard of care by acting in a conflict of interest and failing to prepare the note, the plaintiffs suffered no compensable loss as the debt was recognized, secured, and largely repaid.

The court dismissed the plaintiffs' motion and granted a 'boomerang' summary judgment dismissing the action entirely.

The defendant school board brought a motion to dismiss or stay the plaintiff's action for negligent administration of long-term disability benefits, arguing the court lacked jurisdiction because the dispute was subject to grievance and arbitration under a collective agreement.

The court found that the essential character of the dispute involved the duties regarding enrolment in the benefits plan, which the collective agreement was silent on.

The court concluded it had jurisdiction and dismissed the defendant's motion.

The plaintiffs moved to strike the jury notices delivered by the defendants, seeking a judge-alone trial.

Their primary argument was the uncertainty of trial timing due to the COVID-19 pandemic's suspension of civil jury trials, and alternatively, the cumulative effect of this delay and the complexity of the issues.

The court granted leave to bring the motion, finding that the COVID-19 pandemic constituted a substantial and unexpected change in circumstances, making it "manifestly unjust" to refuse leave.

Applying the principles from *Louis v. Poitras*, the court found that the indefinite suspension of civil jury trials in Ottawa caused sufficient prejudice to the plaintiffs, justifying striking the jury notices.

The court concluded that justice would be better served by proceeding with a judge-alone trial in multi-week blocks, allowing for a more timely resolution.

The plaintiffs, Bruce and Francine Cowley, brought a motion seeking a ruling that the defendants were not entitled to deduct long-term disability (LTD) benefits received by Mr. Cowley from any damages awarded for economic losses.

The plaintiffs argued that the LTD insurer's right of subrogation or the private insurance exception precluded such a deduction.

The court struck the plaintiffs' solicitor affidavits for failing to meet evidentiary standards but proceeded to rule on the legal issues.

The court held that the existence of a right of subrogation, whether equitable or contractual, is a complete bar to the defendants' request for a deduction of LTD benefits from economic loss damages.

The court also found that sections 30(14)-(15) of the Workplace Safety and Insurance Act were not relevant to this determination.

The plaintiff, Podogaetam Holdings Inc., brought a motion for partial summary judgment against the defendants, Stephane Langlois and Pierre Charron.

The plaintiff sought a finding that Langlois breached his contract, and initially that Charron was negligent and breached fiduciary duties.

At the outset, the plaintiff withdrew the negligence claim against Charron and acknowledged Langlois was not disputing the breach of contract claim, leading to judgment against Langlois on that basis only.

All claims against Christian Pilon were dismissed by agreement.

The core of the motion proceeded on the breach of fiduciary duty claim against Charron.

The court dismissed the motion for partial summary judgment, finding genuine issues of credibility and conflicting evidence regarding the circumstances of the loan, the plaintiff's reliance on Charron, and the plaintiff's acknowledgment of risks and waiver of independent legal advice.

The court also noted that the issue of fiduciary duty could not be readily bifurcated from other negligence claims, making partial summary judgment inappropriate and risking inconsistent findings.

The defendants moved for summary judgment to dismiss the plaintiffs' claims as statute-barred, arguing the two-year limitation period under the Limitations Act, S.O. 2002, c. 24, Sched.

B, began when the minor plaintiff's father, Nizam Siddiqui, sent a notice letter holding himself out as litigation guardian.

The plaintiffs sought partial summary judgment, contending the limitation period did not run until a formal litigation guardian affidavit was filed or a proceeding commenced.

The court, applying statutory interpretation principles and considering the historical protection of minors, held that merely sending a notice letter was insufficient to trigger the limitation period under s. 6(b) of the Act.

The term "litigation guardian" is a term of art requiring formal appointment or commencement of a proceeding under the Rules of Civil Procedure.

The defendants' motion was dismissed, and the plaintiffs' request for partial summary judgment was granted.

The appellant corporation sought to overturn a lower court decision that dismissed its trespass claim and granted the respondent a declaration of title through adverse possession over encroachments created by a parking platform built on the respondent's land.

The platform's support timbers encroached onto the appellant's roadway and drainage area.

The Court of Appeal upheld the lower court's decision, finding that the respondent had established all three elements of adverse possession: actual possession for the statutory period, intention to exclude the true owner, and discontinuance of possession by the owner.

The court rejected the appellant's arguments regarding a modified test for adverse possession in cases involving pre-existing easements and found that the encroachments were trifling and did not warrant injunctive relief.

The plaintiffs sued the defendants for back injuries sustained during a job demonstration.

Following a four-day liability trial, the action was dismissed.

This endorsement addresses the issue of costs.

The successful defendants sought partial indemnity costs of $156,015.04.

The plaintiffs argued for minimal costs due to their impecuniosity and criticized the defendants' conduct regarding adjournments and witness calling.

The court fixed the defendants' costs at $135,000, inclusive of disbursements and H.S.T., finding the plaintiffs' impecuniosity unsupported by sufficient evidence to warrant a reduction.

The plaintiffs brought an action for damages after Ms. Armstrong, a prospective employee, suffered an L4 vertebrae burst fracture while demonstrating her ability to hitch a U-Haul trailer during a job interview at the defendants' garage.

The trial proceeded on the issue of liability only.

The court found that the defendants owed a duty of care to Ms. Armstrong, both as occupiers of the premises under the Occupiers’ Liability Act and as a quasi-employer.

However, the court concluded that the defendants did not breach the standard of care, as the injury was not reasonably foreseeable given the circumstances, including Ms. Armstrong's assurances of her lifting capabilities and the lack of evidence of industry standards or obvious negligence.

The action was dismissed.

Following a motion to consolidate 48 actions where the moving defendants were largely successful but the plaintiff successfully resisted consolidation of one action, the court determined costs.

Considering the divided success and a reasonable settlement offer made by the plaintiff, the court ordered the moving defendants to pay partial indemnity costs of $7,500 to the plaintiff and $5,522.91 to the successful co-defendant, Boston Pizza.

The plaintiff commenced 48 separate actions (38 in Superior Court, 10 in Small Claims Court) relating to various loan transactions, primarily alleging negligence and breach of fiduciary duty against its former lawyers.

The defendant lawyers brought a motion to consolidate the actions.

The court ordered that 37 of the Superior Court actions be consolidated into a single action to avoid multiplicity of proceedings and reduce costs.

The 10 Small Claims Court actions were also consolidated and ordered to be transferred and tried together with the Superior Court action.

All actions were ordered to be case managed.

The court issued a costs endorsement following a successful motion by the defendants to strike portions of the plaintiff's statement of claim.

The defendants sought costs on a substantial indemnity basis, citing the plaintiff's uncooperative and offensive conduct, and in the case of one defendant, malicious and unsubstantiated allegations.

The court awarded partial indemnity costs to the Centre for Spanish Speaking Peoples and associated individual defendants, reducing the quantum due to excessive claims and the nature of a pleadings motion.

Legal Aid Ontario received its claimed modest costs.

Carita Wong was awarded substantial indemnity costs, fixed at a reduced amount, due to the plaintiff's outrageous, unjustified, and malicious allegations against her as a professional, serving as a deterrent.

The plaintiff was ordered to pay all awarded costs within 30 days.

The defendants brought motions to strike the plaintiff's 80-page statement of claim, which alleged wrongful dismissal and various torts against his former employer, a legal aid clinic, its funder, and various individuals.

The court struck the claims against the employer's outside counsel, the funding agency, and two individual employees without leave to amend, finding no reasonable cause of action was disclosed.

The remainder of the statement of claim against the employer and other individuals was struck for failing to comply with the rules of pleading, with leave granted to deliver a fresh as amended statement of claim.

Following an earlier ruling on a motion, the court addressed a dispute concerning the allocation of agreed costs.

The parties agreed that $9,000 in costs would be payable to two respondents, but the applicants argued that additional respondents should share liability for those costs.

The court found that the additional respondents had been present only on a watching brief and were not part of the bifurcated application.

The court rejected the applicants’ position and ordered that those respondents should not share liability.

Instead, the applicants were ordered to pay additional costs to those respondents for having to participate in the costs submissions.

Following a summary judgment motion and mini‑trial under Rule 20.04(2.2) of the Rules of Civil Procedure concerning whether the moving defendants possessed a contractual right of indemnity against subcontractor defendants, the court had previously dismissed the indemnity claim.

The remaining issue concerned the costs of the mini‑trial and related steps.

Applying s.131 of the Courts of Justice Act and Rule 57.01, the court held that the moving defendants unnecessarily prolonged the litigation, failed to meaningfully engage in settlement efforts, and advanced an indemnity theory unsupported by evidence.

The conduct justified a costs award on a substantial indemnity basis.

The moving defendants were ordered to pay substantial indemnity costs to both the plaintiffs and the subcontractor defendants.

On a rule 20.04(2.2) mini-trial, the moving defendants sought a declaration that an implied oral contract with a blasting contractor contained a right of indemnity arising from a quarry fly rock incident.

The court held that while the evidence showed a long-standing business relationship and shared expectations about operational responsibility and safety, it did not establish any oral or implied agreement to indemnify.

Applying the implied terms jurisprudence, the court found such a term was not necessary for business efficacy and failed the officious bystander test.

The indemnity claim was dismissed, and the matter was left to proceed to trial on remaining issues.