Donald E. Short

The plaintiff's motion to add Ken Rubin as a defendant in a defamation action based on his freedom of information requests was previously dismissed.

In this costs decision, the Master applied the anti-SLAPP provisions of the Courts of Justice Act by analogy.

Finding no reason to deviate from the statutory presumption of full indemnity costs under s. 137.1(7), the Master awarded the successful proposed defendant his requested costs of $15,000.

The plaintiff moved to set aside a registrar's administrative dismissal of its action for delay.

The action, which sought a declaration regarding mining royalty obligations, was dismissed after the plaintiff's tickler system failed to alert counsel to the five-year deadline while awaiting mediation dates from the defendant.

Applying the Reid test, the Master found the delay was adequately explained, inadvertent, and promptly addressed once discovered.

The Master also found no actual prejudice to the defendant, noting the defendant's own delays and failure to provide mediation dates.

The motion was granted, the dismissal set aside, and costs awarded to the plaintiff.

The plaintiff, Core Insight Strategies Inc., brought a motion to amend its statement of claim to add several parties, including Dan Baril as a plaintiff and Erin Kelly, Kenton White, and Ken Rubin as defendants.

Ken Rubin opposed his addition, arguing that the proposed claims of defamation and intentional interference with economic relations, based on his freedom of information requests, were unmeritorious and constituted a "gag proceeding" under Section 137.1 of the Courts of Justice Act.

The Master granted the motion to add the other parties but dismissed the motion to add Ken Rubin, finding that his FOI requests could not be construed as specific allegations of wrongdoing and that allowing such claims would unduly prejudice the exercise of freedom of information rights and expression.

The defendant, Yaw Jung Lee, brought a motion for security for costs against the plaintiff, K. Lee & Associates Ltd., a corporation with no assets.

The court applied the two-step inquiry under Rule 56.01(1) of the Rules of Civil Procedure, finding that the plaintiff's lack of assets satisfied the initial requirement.

Despite the plaintiff's assertion of being "not impecunious" the court determined that this did not alter the defendant's entitlement to security, as there was no enforceable claim against potential lenders.

The court also considered the defendant's counterclaim and the principle of proportionality.

The motion was granted, ordering the plaintiff to pay $61,250 into court as security for costs within 60 days, failing which the action would be stayed.

The defendant was also awarded $7,500 plus HST and disbursements for the costs of the motion.

The defendant Kaszas brought a motion to exclude the plaintiff D'Onofrio from her examination for discovery, alleging intimidation.

The court reviewed the principles for exclusion, emphasizing that a party's inherent right to be present is lost only in exceptional circumstances, requiring the moving party to prove intimidation on a balance of probabilities.

The court found that Kaszas's evidence of anxiety and discomfort, based on a single past phone call, did not meet the objective standard required to demonstrate a real and substantial probability of intimidation.

The motion was dismissed, and costs were awarded to the plaintiff.

The plaintiffs brought an action alleging the defendants infringed their copyright in various 'Anne of Green Gables' television productions.

The parties were unable to agree on a discovery plan under Rule 29.1.

The court was asked to establish a discovery plan, specifically addressing the scope of documentary production by both sides, the production of development agreements, and the time limits for oral examinations.

The Master ordered a limited, representative sample of productions from the plaintiffs regarding the alleged infringements, reciprocal financial production on an eyes-only basis, production of the defendants' development agreements subject to redaction, and equal time (14 hours) for oral discoveries for each side.

This decision addresses a costs dispute arising from a motor vehicle accident involving a rental car.

Aviscar Inc. sought substantial indemnity costs against Sinisa Filipovic and Certas Direct Insurance Company for their refusal to accept primary insurance responsibility under the Insurance Act and for unnecessarily prolonging litigation.

The court found Aviscar's early offer to settle was reasonable and that the respondents' actions led to significant unnecessary legal expenses.

Applying proportionality and considering the respondents' conduct, the court awarded Aviscar Inc. a total of $49,500 in costs.

The defendant brought a motion for security for costs against the plaintiff, a Ukrainian corporation seeking to enforce Ukrainian judgments in Ontario.

The plaintiff acknowledged it was not ordinarily resident in Ontario but argued the requested $100,000 was excessive and unjust given the merits of its claim.

The court considered the complex history of the foreign proceedings, allegations of fraud, and the failure of the plaintiff's alleged beneficial owner to post security in related foreign litigation.

Applying principles of proportionality, the court ordered the plaintiff to post $70,000 as security for costs for the upcoming summary judgment motion.

The plaintiff, Fabio Scalabrini, brought a motion to add his spouse, Cinzia Scalabrini, as a plaintiff to an existing motor vehicle accident action, seeking damages under the Family Law Act.

The motion was based on the discoverability principle, arguing that Cinzia's injuries and related losses, particularly those stemming from a mold issue in their home attributed to Fabio's accident-related incapacitation, only became apparent in late 2018.

The court considered Rules 5.04 and 26.01 of the Rules of Civil Procedure and the Limitations Act, 2002, finding that the statutory presumption of discoverability was rebutted.

The court granted leave to add Cinzia as a plaintiff, concluding there was a reasonable possibility she could not have known the full extent of her derivative injuries and losses earlier, and awarded costs to the moving party.

The plaintiff mortgage lender brought a motion to enforce a settlement agreement signed by the self-represented defendant.

The defendant argued the agreement was signed under duress and that he intended to preserve his counterclaim.

The Master found the settlement valid and binding, noting the defendant's failure to include any reservation of rights in the clear written agreement.

The Master ordered that the plaintiff could proceed with the sale of the mortgaged property, but directed that the proceeds be held in escrow until the defendant's counterclaim, which requires leave to proceed due to his status as a vexatious litigant, is resolved.

The plaintiff, Daland Developments Ltd., brought a motion to compel re-attendance and answer questions during cross-examination on affidavits filed by the defendants (2075568 Ontario Inc., Idacris Investments Inc., and 163157 Ontario Inc.) in support of their Rule 21 motion to strike the action.

The defendants' counsel refused questions on grounds of relevance, arguing they related to the merits or events preceding a prior Vesting Order.

The court found it inappropriate and unfair for a party to file affidavits and then assert that their sworn testimony is not open to challenge, especially when the circumstances surrounding a previous order might impact its reliability.

Citing established case law, the court ruled that cross-examination on an affidavit is not confined to its four corners but can cover any matters relevant to the issues for which the affidavit was filed, including the merits, pre-Order events, and the defendants' legal position.

The plaintiff's motion was granted, requiring the witnesses to re-attend and answer all relevant questions.

The defendants brought a motion to examine the plaintiffs' in-house counsel, Mr. Townsend, for discovery in a complex fraud action.

The plaintiffs opposed, arguing that Mr. Townsend lacked firsthand knowledge, and that his examination would be oppressive and risk breaching solicitor-client privilege.

The court, applying Rule 31.03(2) of the Rules of Civil Procedure, affirmed the defendants' prima facie right to select the witness.

It found that in-house counsel is not immune from discovery and that Mr. Townsend's knowledge of the audit results made him a relevant witness, provided questions avoided privileged legal advice.

The motion was granted.

Following the dismissal of the defendant's motion to set aside a Certificate of Pending Litigation, the successful plaintiffs sought costs of $19,726.56, arguing for substantial indemnity based on an offer to settle.

The court found the offer was arguably not timely under Rule 49 and doubted whether a responding party on a motion is entitled to the same costs consequences as a plaintiff in an action.

Applying principles of proportionality and Rule 57, the court awarded the plaintiffs partial indemnity costs fixed at $10,187.30.

The plaintiffs moved to set aside a Registrar's administrative dismissal for delay of their action against the defendant law corporation for lawyer's negligence.

The action, commenced in 2013, was dismissed in 2018 for failure to set it down for trial within five years, as required by Rule 48.14.

The court applied a contextual approach to the four-factor test for setting aside such dismissals, considering the plaintiffs' explanation for delay (inadvertence due to staff changes and maternity leave), their intent to prosecute, and the defendant's claim of prejudice (aging principal, health issues, memory deterioration).

The court found that both parties shared responsibility for the delay and, balancing the interests, decided to restore the action to active status with a strict new timetable for setting down for trial, with no costs awarded.

The parties sought costs following three segments of the discovery process, including motions for undertakings and refusals.

The plaintiff claimed misappropriation by a former employee who started a competing business, while the defendant counterclaimed for wrongful dismissal.

The Master awarded partial indemnity costs to the plaintiff for its successful refusals motion, partial indemnity costs to the defendants for their refusals motion (deferring expert costs to the trial judge), and ordered costs in the cause for both parties regarding a third motion involving aborted discoveries.

The plaintiff brought an ex parte motion for default judgment in an action for goods sold and delivered.

The plaintiff sued the defendant as an individual doing business as a sole proprietorship.

The court dismissed the motion, finding that the statement of claim was not properly served.

Because the defendant was identified as an individual, personal service was required under Rule 16.02(1)(a), but the affidavit of service indicated the document was left with an unidentified person at a place of business.

The plaintiff, a condominium developer, brought a motion under Rule 32.01 for an order allowing its expert to conduct invasive soil and groundwater testing on the defendants' adjacent property, which operated a dry-cleaning business.

The plaintiff alleged the defendants' property was the source of chlorinated solvent contamination found on its lands.

The court dismissed the motion, finding that the proposed testing would not be probative because the plaintiff's extensive excavation and construction had irrevocably altered the subsurface conditions.

The court also applied the equitable doctrine of laches, noting the plaintiff's unreasonable delay in seeking the inspection prejudiced the defendants.

Tadiem Inc., as plaintiff/defendant by counterclaim, sought leave under Rule 29.02(1.2) of the Rules of Civil Procedure to issue a third-party claim for contribution and indemnity against the Canadian Broadcasting Corporation (CBC) and CBRE Limited.

The proposed third-party claim was in response to Allied's counterclaim alleging intentional interference with economic relations and defamation, based on statements Tadiem allegedly made to CBC and CBRE during lease negotiations.

Allied opposed the motion, arguing the claim was fatally flawed and untimely.

The court granted leave, finding no undue prejudice to Allied and that the third-party claim was tenable, arising from the same incidents and raising overlapping factual issues, thus preventing multiplicity of proceedings and risk of inconsistent findings.

Following the unopposed dismissal of an action claiming $35 million for fraud and conspiracy, the successful defendants and third parties sought their costs.

The court found that the plaintiffs' unsubstantiated allegations of fraud were advanced recklessly, entitling the primary defendants to costs on an elevated scale.

The court awarded the primary defendants $426,055.56 (splitting the difference between partial and substantial indemnity) and awarded the third parties their full claimed partial indemnity costs of $102,980.59.

The plaintiff law firm, Wendy Sokoloff Professional Corporation, brought a motion to remove Joseph Falconeri and his firm, Falconeri Munro Tucci LLP, as counsel of record for the co-defendants Wayde Mahoney, Kevin Mahoney, and Carol Mahoney.

The motion arose from a dispute over unpaid legal fees following a personal injury settlement, where the Sokoloff firm had initially represented the Mahoneys.

The Sokoloff firm alleged conflict of interest, champerty, and maintenance, citing an alleged indemnity agreement between Falconeri and the Mahoneys, and Falconeri's involvement in a prior professional negligence claim against Sokoloff.

The court, applying the principles for removing counsel, found that the integrity of the justice system required the removal of Falconeri Munro Tucci LLP as counsel for the Mahoney defendants due to a perceived conflict of interest, as Joseph Falconeri was a named defendant and a likely witness whose evidence would be necessary for controversial matters at trial.