Douglas Treilhard

The plaintiffs sought to certify five related class actions against Fortress Real Capital Inc., its principals, and two real estate appraisers regarding losses suffered from investing in syndicated mortgage loans.

The court certified the actions against Fortress and its principals, finding the pleadings disclosed viable causes of action in fraud and negligent misrepresentation, and that the other certification criteria were met.

However, the court dismissed the certification motions against the appraisers, concluding it was plain and obvious the claims would fail because the appraisers owed no duty of care to the investors and their reports expressly disclaimed third-party reliance.

The court also held the Harmony Village action in abeyance to allow the plaintiffs to substitute a suitable representative plaintiff.

The plaintiff brought a motion for leave to amend their Statement of Claim to reduce the monetary amount claimed to $200,000 to proceed under the Rule 76 Simplified Procedure, and to strike the defendant's Jury Notice.

The court found that striking the Jury Notice would cause non-compensable prejudice to the defendant by depriving them of their substantive right to a jury trial.

The court granted leave to amend the claim, but ordered that the monetary limit not be reduced below $200,001.00 to keep the matter out of the mandatory Simplified Procedure rules, thereby preserving the jury trial without causing undue delay or procedural complications.

The moving defendants brought motions under Rules 21.01(1)(b) and 25.11 of the Rules of Civil Procedure to strike claims for disclosing no cause of action.

The plaintiff, a real estate agent and social media content creator, alleged that she was defamed by two other real estate agents through social media posts.

She sued the brokers of record, branch managers, and brokerages for negligence and vicarious liability.

The court found that the negligence and vicarious liability claims were viable and disclosed reasonable prospects of success.

However, the court struck the claims for punitive damages on a theory of vicarious liability, as punitive damages cannot flow vicariously to an employer.

Leave was granted to amend the pleading to better plead aggravated and punitive damages against the individual defendants.

The plaintiff brought a motion seeking to consolidate or hear together two actions: a tort action arising from multiple motor vehicle accidents (MVAs) and an accident benefits (AB) action arising from one specific MVA.

The plaintiff also sought leave to amend the statement of claim and extend time to set down the tort action, which were unopposed and granted.

A preliminary issue regarding the admissibility of affidavit paragraphs containing without prejudice communications from mediation was resolved by striking the paragraphs.

The court found that the gateway criteria under Rule 6.01 for hearing actions together were met, as the tort injuries and SABS entitlement arose from the same MVA.

However, after balancing factors such as the presence of a jury notice in one action but not the other, the differing stages of readiness, the significant delay an order would cause to the AB action, the distinct legal issues, and the lack of clear cost or time savings, the court dismissed the plaintiff's motion to have the actions heard together or one after the other.

The moving parties brought a motion to strike the responding parties' statements of claim for failing to comply with discovery obligations.

One responding party failed to attend an examination, and another refused to answer several questions during hers.

The court reviewed the procedural history and the conduct of both counsel during the examinations.

The court found that while the responding parties did not fully comply, their conduct did not warrant the exceptional remedy of striking their claims.

Instead, the court ordered one responding party to attend an examination and ordered the other to answer written interrogatories.

The moving parties were awarded $3,000 in costs for the motion.

The defendant was previously found in civil contempt for flagrantly breaching a court order that required her to remove defamatory social media posts about the plaintiff and publish a retraction.

The court considered the wilful nature of the breaches, the significant mental and financial impact on the plaintiff, and the defendant's eventual purging of the contempt.

Applying criminal sentencing principles to civil contempt, the court sentenced the defendant to a 75-day conditional sentence (house arrest), followed by nine months of probation with 120 hours of community service, and awarded substantial indemnity costs to the plaintiff.

The Plaintiff, Wael Musa, succeeded in a slip and fall personal injury trial against the Defendants, Carleton Condominium Corporation No. 255 and 6669981 Canada Inc. The court then determined the quantum of costs.

The Plaintiff sought partial indemnity costs up to the date of their Rule 49 offer and substantial indemnity costs thereafter, having bettered their offer.

The Defendants made no offer.

The court awarded the Plaintiff $113,000 in fees and $28,804.71 in disbursements, acknowledging that costs could exceed damages in complex trials and that counsel's billing rates and contingency fee agreements are relevant but not determinative.

This personal injury action concerned a slip and fall on an icy condominium roadway.

The plaintiff sued the condominium corporation and its snow removal contractor for negligence.

The contractor was deemed an occupier under the Occupiers' Liability Act.

The central issue was whether the contractor applied road salt in a sufficiently timely manner to prevent dangerous icy conditions.

The court found the contractor negligent for failing to apply road salt concurrently with or immediately after plowing, which led to the formation of a hazardous icy surface.

The contractor's operational system, which relied on the owner personally handling all salting for numerous properties, was identified as problematic and overstretched.

The court dismissed the defendants' claim of contributory negligence against the plaintiff and found the defendants liable for the plaintiff's injuries.

The defendant brought a motion to compel the plaintiff to answer two questions refused at his examination for discovery in a personal injury action arising from a motor vehicle accident.

The defendant sought production of the plaintiff's academic records to verify his computer science degree, which underpinned his loss of income claim, and childhood medical records from SickKids Hospital regarding a prior head injury.

The court granted the motion, finding both sets of records relevant to the issues of damages and causation.

The defendants brought a motion to amend their statement of defence to include a counterclaim in a simplified procedure action.

The plaintiffs consented to the amendment but requested further oral discovery to question the defendants on the counterclaim and newly produced documents, specifically a Code of Conduct.

The court granted the amendment and allowed the plaintiffs an additional 45 minutes of discovery, finding that the Code of Conduct should have been produced earlier and would have been a legitimate area of inquiry.

Costs of the motion were awarded to the plaintiffs.

The plaintiff brought a motion to strike the defendants' jury notice in a slip-and-fall case where damages had been settled, leaving only liability at issue.

Due to the COVID-19 pandemic, civil jury trials in Ottawa were indefinitely suspended, causing significant delay.

The court granted the motion, finding that the indefinite delay constituted real and substantial prejudice, outweighing the defendants' right to a jury trial in the interest of timely access to justice.

In a wrongful death action arising from a motorcycle accident, the defendants brought a motion under Rule 31.10 for production of the complete Children's Aid Society file regarding the plaintiffs.

The defendants sought the records to assess the quality of the relationship between the plaintiffs and the deceased.

The court dismissed the motion, finding that the defendants had not exhausted their right to obtain the information through examinations for discovery of the plaintiffs, rendering the request a speculative fishing expedition.

The defendants brought a motion to exclude the co-plaintiffs from each other's examination for discovery in an action regarding a denied insurance claim for residential theft.

The defendants argued that credibility was a central issue, relying on the test in Lazar.

The court dismissed the motion, finding that the central issue was whether the insurance broker met the standard of care, not the plaintiffs' credibility.

Furthermore, the court held that the agreed-upon discovery plan contained an implied term that the plaintiffs could attend each other's discoveries.

This costs endorsement followed a successful motion by the defendant regarding discovery issues.

The defendant sought costs on a partial indemnity basis, initially claiming $3,816.92.

The plaintiff argued for nil costs, citing unfairness due to a late-served affidavit and the defendant's partial lack of success on one question, and also requested delayed payment due to a SABS settlement.

The court rejected the plaintiff's arguments for nil costs, finding the defendant's late affidavit was properly admitted.

The court adjusted the defendant's claimed fees due to redacted dockets and reduced the student's hourly rate, ultimately fixing costs at $2,995.

The court also upheld the original decision for delayed payment of costs until the final resolution of the action, noting that the costs would bear interest.

The defendant in a personal injury action arising from a motor vehicle accident brought a motion to compel the plaintiff to answer undertakings and refused questions from an examination for discovery.

The court granted the motion, ordering the plaintiff to fulfill outstanding undertakings, serve an affidavit of documents, and re-attend for a continued examination for discovery.

The court also permitted the defendant to exceed the standard seven-hour discovery limit by an additional three hours and forty minutes due to the complexity and value of the claim.

The defendants brought a motion for security for costs against the non-resident plaintiff in a slip and fall action.

The court found that the defendants' cost estimates were excessive and projected partial indemnity costs at under $10,000.

The court dismissed the motion, concluding that the plaintiff had sufficient assets in Missouri, a reciprocating jurisdiction where an Ontario costs award could be enforced, to satisfy any potential costs order.

The plaintiff sued the defendants for injuries sustained after falling from the roof of their home while performing renovations.

The defendants brought a motion for summary judgment to dismiss the action.

The court found that the plaintiff was acting as a contractor and the defendants, as occupiers, had no duty to provide safety equipment or supervise his work.

The court granted the motion and dismissed the action, finding no genuine issue requiring a trial.

The defendant Jevco Insurance Company brought a motion under Rule 21.01 for a determination of a question of law: whether an automobile owned by the plaintiff's spouse, driven without consent by an uninsured driver, constitutes an "uninsured automobile" under the Insurance Act and the relevant insurance policy.

The court found that the statutory and contractual language explicitly excludes such a vehicle from the definition of "uninsured automobile" when it is owned by the insured or their spouse, even if the result may seem unfair.

Consequently, the plaintiff was not entitled to uninsured automobile coverage from Jevco.

The defendants brought a motion for leave to appeal to the Divisional Court from an order denying their request to file a jury notice late.

The court applied the two-part test under Rule 62.02(4) of the Rules of Civil Procedure, considering whether there was a conflicting decision or good reason to doubt the correctness of the order and if the matter was of general importance.

The court found no conflicting decision, as the motion judge had correctly applied the established two-factor test for late jury notices (delay and prejudice) and was entitled to deference on factual findings.

Furthermore, the court found no good reason to doubt the correctness of the motion judge's decision, which had determined that the delay in filing the jury notice was unconscionable and would cause prejudice to the plaintiff by delaying the trial.

The motion for leave to appeal was dismissed.

The defendant, Intact Insurance, brought a motion to compel the plaintiff to comply with undertakings and answer refusals from her examination for discovery in a personal injury action.

By the time of the hearing, the undertakings had been answered, leaving only the refusals and costs in dispute.

The court ordered the plaintiff to answer questions regarding prior injuries and to produce academic records from an incomplete bookkeeping course relevant to her loss of income claim.

The request for un-redacted counsellor records was deemed premature.

Costs were awarded to the defendant.