David Silver

The defendant brought a motion to dismiss the plaintiff's breach of contract action for delay under Rules 48.14(7)(a) and 24.01.

The court found that the plaintiff adequately explained the delay, which was largely due to the health issues and subsequent murder of the plaintiff's former counsel, as well as concurrent delays by the defendant.

The court also found no significant prejudice to the defendant.

The motion was dismissed, a new litigation schedule was imposed, and costs of $25,000 were awarded to the plaintiff.

The appellants appealed an associate judge's order dismissing their action for delay at a status hearing under Rule 48.14.

The delay was primarily caused by the appellants' trial counsel inadvertently missing the mandatory mediation requirement, which prevented the filing of the trial record before the five-year deadline.

The Divisional Court allowed the appeal, finding that the associate judge committed palpable and overriding error by treating the missed mediation as a mere technical misstep and failing to consider the overall justice of the case, especially given the lack of prejudice to the respondents and the fact that the action was brought to enforce a $12,000,000 default judgment.

The appellants claimed allowable business investment losses (ABILs) and related non-capital loss carry forwards in respect of funds advanced to a holding company, which then transferred the funds to an operating company.

The Minister denied the claims on the basis that the holding company was not a small business corporation.

The appellants argued the holding company was merely a conduit and the loans were actually made to the operating companies.

The Tax Court of Canada dismissed the appeals, finding that the documentary evidence and contemporaneous tax filings supported the conclusion that the loans were made to the holding company, not the operating companies.

The plaintiff brought a motion to set aside a second order of the Registrar dismissing the action for delay.

The delay was primarily caused by the inadvertence of the plaintiff's former counsel and his staff in failing to schedule discoveries and extend the set down date.

Applying the four-part Reid test, the court found that the plaintiff provided a reasonable explanation for the delay, demonstrated an intention to proceed, moved promptly to set aside the order, and that the defendants would suffer no actual prejudice.

The motion was granted and the dismissal order was set aside.

The defendants successfully moved to set aside a default judgment and sought substantial indemnity costs of $84,948.42.

The court declined to award costs to the defendants, finding that the setting aside of the default judgment was an indulgence necessitated by the defendants' own lack of diligence.

Although the plaintiffs engaged in improper conduct by failing to make full disclosure on the ex parte motion for default judgment and attempting to enforce it without notice, the defendants' prior conduct, including a fraudulent conveyance, militated against a costs award in their favour.

The court ordered the parties to bear their own costs.

The appellant acquired a distressed mortgage, promissory note, and debt from a bank at a discount.

The underlying property was subsequently sold at a judicial sale to the appellant.

The appellant claimed a non-capital loss on the transaction.

The Tax Court of Canada held that the transaction was an adventure in the nature of trade, as the appellant had a profit-making intention.

The Court found that the mortgage was disposed of upon its cancellation following the judicial sale, resulting in a realized non-capital loss of $826,426 in the 2011 taxation year.

The appeals were allowed and the reassessments referred back to the Minister.

The defendants (Filips) brought a motion to set aside a default judgment obtained by the plaintiffs (Ross and Campbell) for $617,209.59.

The Filips argued that the plaintiffs failed to make full and frank disclosure on damages in their ex parte motion for default judgment and that their previous counsel's significant personal and professional issues constituted a plausible excuse for their default.

The court found that the plaintiffs indeed failed to disclose material facts (a lower appraisal report) on damages, which alone was sufficient to set aside the judgment under Rule 39.01(6).

Additionally, applying the five-factor test from Mountain View Farms Ltd. v. McQueen, the court found the Filips' explanation for default plausible, an arguable defence on the merits (both liability and damages), and that setting aside the judgment served the interests of justice, despite the Filips' prior fraudulent conveyance attempt.

The default judgment was set aside, and a schedule for the action was ordered.

The plaintiff brought a motion for an order fixing a litigation timetable to prevent the action from being dismissed for delay under Rule 48.14.

The defendants opposed, arguing prejudice due to the passage of time and faded memories.

The court found a reasonable explanation for the delay, including the plaintiff's former counsel's health issues and the defendants' own slow pace in the litigation.

The court concluded there was no significant prejudice to the defendants and ordered the action to continue with a fixed timetable for discovery and mediation.

The plaintiffs sought costs for a motion to strike the defendants' affidavits, which resulted in mixed success as the court instead provided directions for examinations to proceed by video conference due to the COVID-19 pandemic.

The court declined to award costs to either party for that motion, noting both sides acted in good faith in a novel situation.

The plaintiffs were awarded $300 in costs for a separate motion that the defendants had abandoned.

The plaintiffs brought a motion to strike the defendants' affidavits and motion record filed in support of a motion to set aside a default judgment.

The plaintiffs argued the affidavits should be struck because the defendants refused to attend in-person cross-examinations, citing COVID-19 health concerns.

The plaintiffs also argued the motion should be struck because it was brought by counsel retained by the former lawyer's insurer.

The court dismissed the plaintiffs' motion, finding the elderly defendants had a legitimate health concern justifying video conference examinations, and that counsel had standing to act on their behalf.

The Minister of National Revenue brought an application under section 174 of the Income Tax Act to determine a common question regarding a tax shelter, naming several taxpayers.

The Minister subsequently withdrew the application.

The named taxpayers sought costs.

The Court held that costs for the application should be determined and awarded immediately, rather than waiting for the conclusion of the taxpayers' individual appeals, because the application was a separate proceeding.

The Court awarded varying amounts of costs to the taxpayers based on their individual circumstances and representation.

The appellant commenced an action to recover a $50,000 deposit from an aborted real estate transaction.

The respondents counterclaimed for breach of contract.

After years of delay, the motion judge dismissed the appellant's action for delay but did not address the counterclaim.

The Court of Appeal allowed the appeal, finding the motion judge erred by failing to consider that dismissing the claim left the mirror-image counterclaim alive, which was not in the interests of justice.

The dismissal was set aside and the matter remitted to the Superior Court.

The plaintiffs brought a motion for a status hearing under Rule 48.14(5) to extend the deadline for setting the action down for trial.

The action, commenced in 2014 to enforce a 2013 default judgment, had seen no steps taken by the plaintiffs for 30 months between 2016 and 2019.

Applying the conjunctive test for delay, the Master found that while the defendants would not suffer significant prejudice, the plaintiffs failed to provide an adequate explanation for the lengthy delay.

The action was dismissed for delay.

This addendum corrects an error in a previous order (2019 ONSC 4259) regarding an application to enforce a settlement agreement.

The original order's paragraph 47 was incorrectly drafted and did not reflect the court's finding that a binding settlement should be enforced.

The court clarified its jurisdiction to amend the order before formal entry, citing the functus officio principle and the slip rule.

The corrected order specifies that the respondent purchasers are to pay the applicant $100,000 plus $5,000 in legal costs in monthly installments, with provisions for default and interest.

The applicant vendor brought an application under Rule 14.05(3) to enforce a settlement agreement reached with the respondent purchasers after an aborted real estate transaction.

The respondents argued they lacked funds to pay and that the applicant sold the property at an improvident price.

The court found it had jurisdiction under Rule 14 as there were no material facts in dispute regarding the existence of the settlement.

The court held that a binding settlement was reached and ordered the respondents to pay the agreed $50,000 balance in installments, plus legal fees and costs.

The defendant brought a request under Rule 2.1.01 of the Rules of Civil Procedure to dismiss the plaintiff's action as frivolous, vexatious, and an abuse of process.

The plaintiff, who was self-represented, alleged that the defendant lawyer was involved in a conspiracy with federal defendants to sabotage his case and have him assaulted.

The court found the allegations to be completely devoid of reality and noted that the plaintiff had sued the defendant in at least four other actions that were similarly dismissed.

The court invoked Rule 1.04 to permit the dismissal of the action against a single defendant under Rule 2.1.01, and dismissed the claim against the moving party.

This endorsement addresses multiple motions brought by the plaintiffs and defendants by counterclaim against Tanvir Farid.

The plaintiffs sought to continue an interlocutory injunction against Farid for defamatory online postings, amend previous orders, review the execution of an Anton Piller Order (APO), and gain access to seized data.

Additionally, the plaintiffs and other defendants by counterclaim (Maanit Zemel, Hexigent Consulting Inc., Ryan Duquette, and Jason Green) moved to strike Farid's counterclaim.

The court continued the interlocutory injunction until trial, found the APO was properly executed, and granted access to seized data subject to privilege review.

The court denied the plaintiffs' requests to delete a paragraph from a prior order and to issue a mandatory order for Farid to remove defamatory material at the interlocutory stage.

Crucially, Farid's counterclaim, alleging fraud upon the court and improper conduct by the plaintiffs, their counsel, and investigators, was struck in its entirety without leave to amend.

The court found the counterclaim disclosed no reasonable cause of action, was frivolous and vexatious, and was barred by the doctrine of absolute privilege.

Costs were awarded against Farid.

The plaintiff brought a motion to set aside a Registrar's order dismissing his action for delay.

The delay was caused by the plaintiff's former counsel, who suffered from severe depression and complicated grief following the death of his daughter, leading him to inadvertently neglect the file.

The court applied the contextual approach and the four Reid factors, finding that the plaintiff always intended to proceed, the delay was adequately explained by the solicitor's mental health issues, the motion was brought promptly once new counsel was appointed, and the defendant suffered no significant prejudice.

The motion was granted and the dismissal order was set aside.

The plaintiff, 1806700 Ontario Inc., initiated an action in Newmarket alleging fraud related to a third mortgage, seeking damages for litigation costs incurred in prior Brampton and Toronto proceedings.

The Khan defendants and Hameed defendants brought motions to strike the plaintiff's statement of claim.

The plaintiff cross-moved to amend its claim.

The court found the claim against the Hameed defendants was an impermissible collateral attack on previous costs rulings and barred by absolute privilege, striking it without leave.

The claim against the Khan defendants also suffered from these defects, but the court granted leave to amend due to the Khan defendants having put the third mortgage's validity in issue in a separate Toronto action.

The court also ordered the Newmarket and Toronto actions transferred to Oshawa due to improper commencement location and stayed the Newmarket action pending the final determination of the Brampton proceedings, emphasizing the need to avoid multiplicity of proceedings.

The defendants brought a summary judgment motion to dismiss claims of unjust enrichment against the Da Costas and solicitor negligence against Allen P. Welman, and to argue that certain monetary claims were statute-barred.

The plaintiff, the Estate of Guido Barberio, alleged that the Da Costas took advantage of the deceased in a below-market value property transfer, aided by Mr. Welman's negligence.

The court dismissed the summary judgment motion, finding genuine issues requiring a trial, particularly concerning the credibility of witnesses, the nature of the relationship between the deceased and the Da Costas, the circumstances surrounding the property transfer, and the discoverability of the negligence claim against the solicitor.

The court emphasized that expanded fact-finding powers were inappropriate given the complex factual matrix and intertwined credibility issues, and that a full trial was necessary for a just resolution.