David Keith Alderson

The defendants brought a motion under Rule 21.01(1)(a) to strike the plaintiff's defamation claim, arguing that the allegedly defamatory statements were protected by absolute privilege as they were made in preparation for contemplated litigation.

The plaintiff opposed and also had a separate motion for particulars.

The court first addressed the defendants' motion, admitting an affidavit from one of the defendants.

Applying the five factors for absolute privilege in pre-litigation communications, the court found that the communication was protected by absolute privilege, as it was directly concerned with actual or contemplated judicial proceedings and made for the purpose of obtaining evidence from a limited audience.

Consequently, the court granted the defendants' motion, striking the Statement of Claim without leave to amend.

The appellant, New Era Development (2011) Inc., appealed a summary judgment decision granting fees of $400,000 to the respondent mortgage broker, Rescon Financial Corporation, and dismissing New Era's counterclaim.

The dispute concerned whether Rescon was entitled to commission upon producing an acceptable commitment letter or only upon actual funding.

The motion judge found the commitment letter acceptable, rejected New Era's defences based on fiduciary duty breach, negligence, and statutory violations, and dismissed the counterclaim.

The Court of Appeal upheld the decision on all grounds, finding no genuine issues requiring trial.

Following a successful motion for summary judgment where the plaintiff recovered $400,000 and the defendant's counterclaim was dismissed, the parties made written submissions on costs.

The plaintiff sought $171,888.04 on a partial and substantial indemnity basis, relying on a Rule 49 offer to settle.

The court rejected the defendant's arguments that the costs were disproportionate or that an assessment was required, fixing costs at $150,000 payable to the plaintiff.

The defendant, New Era Development (2011) Inc., brought motions seeking to compel answers to undertakings and refusals from the plaintiff's representative, Ebrahim Bulbulia, arising from an examination for discovery, and for leave to deliver an expert report.

The plaintiff, Rescon Financial Corporation, a mortgage broker, claimed $400,000 in fees, which the defendant denied, alleging breach of contract and fiduciary duties.

The court largely dismissed the defendant's requests to compel answers, upholding most refusals as irrelevant or disproportionate, except for the identity of one specific private lender.

The court also denied the defendant leave to deliver an expert report, finding that the proposed evidence was not responsive to cross-examination, would cause non-compensable prejudice to the plaintiff, and the defendant failed to provide a reasonable explanation for the delay in seeking expert evidence.

The respondent commenced an action alleging he was induced to enter into a shareholders' agreement by fraudulent misrepresentations.

The appellants moved to stay the action under s. 7 of the Arbitration Act, relying on an arbitration clause in the agreement.

The motion judge refused the stay, finding the pith and substance of the claims were tortious rather than contractual.

The Court of Appeal allowed the appeal, holding that the motion judge erred by assuming tort claims and allegations of fraud fall outside the scope of a broadly worded arbitration agreement, and by failing to apply the competence-competence principle which requires jurisdictional challenges to be resolved first by the arbitrator.

The plaintiff, Andreas Haas, sought substantial indemnity costs after successfully resisting a motion to stay his action in favour of arbitration.

Haas argued for substantial indemnity based on a Rule 49.10 offer to settle.

The court found that Rule 49.10 did not apply to a successful responding party in a motion and that there was no egregious conduct by the moving parties to warrant substantial indemnity under Rule 49.13 or 57.01.

Considering factors under Rule 57.01, including the complexity of issues and a party's initial refusal to admit, the court fixed costs on a partial indemnity basis at an all-inclusive amount of $25,500.00, to be divided evenly among the three defendants.

The defendants sought a stay of an action under s. 7 of the Arbitration Act, 1991 based on an arbitration clause in a shareholders’ agreement relating to a restaurant venture.

The plaintiff alleged fraudulent misrepresentation inducing him to enter the agreement, breach of fiduciary duties, and oppressive conduct.

The court held that the misrepresentation and fiduciary duty claims were tort-based and did not rely on the shareholders’ agreement, placing them outside the arbitration clause.

Although the oppression allegations relied on contractual obligations and fell within the clause, the court declined to order a partial stay because most claims were non-arbitrable and separation would create duplicative proceedings.

The motion for a stay was therefore dismissed.

In a motion arising from an action to recognize a North Carolina judgment, the moving party sought dismissal or a permanent stay of an unrelated counterclaim for lack of jurisdiction, or alternatively on forum non conveniens grounds.

The court held that commencing a recognition action did not amount to attornment to Ontario jurisdiction over the unrelated counterclaim.

Applying the Van Breda framework, the court found no real and substantial connection between the counterclaim and Ontario.

In the alternative, the court held that Ontario was forum non conveniens because North Carolina law applied, the witnesses were in the United States, and there was a risk of conflicting judgments.

The defendants sought costs on a partial indemnity scale following the dismissal of the plaintiff's motion for leave to appeal.

The plaintiff argued that he should be awarded costs or that no costs should be ordered.

The court found no reason to depart from the general rule that costs follow the event, noting that the plaintiff had initially sought the very adjournment that the motion judge ultimately granted.

Costs were awarded to the defendants in the amount of $6,122.73.

Following the dismissal of the plaintiffs' motion for leave to appeal a security for costs order, the defendants sought costs.

The plaintiffs argued costs should be reserved to the trial judge.

The court rejected this argument, noting this was a second attempt to appeal the security for costs order and warranted cost consequences.

The court awarded costs of $2,500 to each of the two responding defendants.

The plaintiff sought leave to appeal an order adjourning the defendants' summary judgment motion.

The motion judge had adjourned the summary judgment motion to allow for discoveries to be completed, as the defendants had not provided an evidentiary record to support their limitation period defence.

The plaintiff argued the motion should have been dismissed outright for failure to put their best foot forward.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's exercise of discretion to control the process.

The respondents in an application for assessment of solicitors’ accounts brought a motion to consolidate that application with a related action seeking payment of outstanding legal accounts and enforcement of a retainer agreement.

The moving parties argued consolidation under Rule 6.01 of the Rules of Civil Procedure would avoid multiplicity of proceedings because both matters involved overlapping issues relating to the retainer agreement and the accounts rendered.

The court held that the issues raised in the assessment application were comparatively straightforward and could be determined efficiently through the application process rather than a lengthy trial.

Consolidation would likely create delay and additional expense and would undermine the expeditious process contemplated for assessments under the Solicitors Act.

The motion to consolidate was therefore dismissed.

The plaintiffs sought leave to appeal an order upholding a Master's decision requiring them to post further security for costs.

The plaintiffs, who were non-residents and not impecunious, argued the judge misapplied the 'good chance of success' test by conflating it with the summary judgment test and failing to define it.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the order and holding that the Master and the appeal judge had properly applied the established legal test.

The defendants brought a motion for summary judgment arguing that the plaintiff’s claim was barred by a limitation period.

The court held that the moving parties failed to provide a proper evidentiary record, relying largely on pleadings and correspondence and offering only a legal assistant as affiant.

Applying the principles in Combined Air Mechanical Services Inc. v. Flesch, the court found that a full appreciation of the issues requires substantive affidavit evidence and adequate disclosure, particularly where discoverability may be engaged.

Given the absence of documentary discovery and meaningful evidence from the defendants, the motion was premature.

The motion was adjourned to permit documentary and oral discoveries before the summary judgment motion proceeds.

Following an appeal from summary judgment decisions in two related actions involving fraudulent investment schemes, the Court of Appeal determined the costs of the motions and the appeals.

The court upheld the costs and Sanderson order in favour of the successful Mauldin group.

However, because the appellant successfully appealed the summary judgment in the Bruno action, the court set aside the costs and Sanderson order in favour of Bruno, reserving the motion costs to the trial judge and making Bruno liable for the co-defendants' costs.

Costs of the appeals were awarded on a partial indemnity scale.

The plaintiff sought leave to appeal an order dismissing a motion to stay the defendants' pre-discovery summary judgment motion.

The plaintiff argued the motion judge relied on a test that conflicted with other jurisprudence and that there was good reason to doubt the correctness of the decision.

The Divisional Court found no conflict in the case law, noting that different approaches to case management did not amount to conflicting legal tests.

The court also found no reason to doubt the correctness of the motion judge's decision, as the appropriateness of a summary judgment motion without discovery is case-specific.

Leave to appeal was denied.

The plaintiff sued the defendant for breach of contract and misrepresentation arising from a franchise agreement.

The defendant brought a motion for summary judgment dismissing the action as statute-barred.

Before discoveries took place, the plaintiff moved to strike the summary judgment motion on the grounds of prematurity.

The court dismissed the motion to strike, applying the test that such a motion should only be granted in the clearest of cases.

The court found that the summary judgment motion had a reasonable chance of success and the matter was not overly complicated.

The appellant financed the respondent's purchase of equipment through a lease agreement.

The respondent sued, alleging the equipment was defective, and the appellant counterclaimed for default under the lease, moving for summary judgment.

The motion judge dismissed the appellant's motion and counterclaim, finding no contract existed due to delay in acceptance and intervening defects.

The Court of Appeal allowed the appeal, holding there were triable issues regarding whether the contract was accepted by conduct and whether the goods' condition changed, and restored the counterclaim for trial.

The appellants appealed an order dealing with unpaid costs and security for costs.

The respondents raised a preliminary objection that the order was interlocutory and required leave to appeal to the Divisional Court.

The Court of Appeal agreed, finding that orders regarding unpaid costs and security for costs are interlocutory.

The appeal was quashed for lack of jurisdiction.

The defendants sought security for costs against non-resident plaintiffs in two related civil fraud actions involving failed investment schemes.

Following an appeal, the matter was remitted to reconsider whether the plaintiffs had a “good chance of success” on the merits, which could weigh against ordering security for costs.

The court reviewed extensive evidentiary allegations concerning the role of a law firm and its partner in facilitating investment transfers connected to the alleged fraud.

The court held that while the record raised genuine issues for trial, the plaintiffs failed to demonstrate a “good chance of success,” particularly regarding whether the defendants owed a duty of care to non-client investors or participated in the alleged fraud.

Security for costs was therefore ordered on the same terms previously imposed.