Dylan E. Augruso

The moving defendants sought to strike the plaintiff's Superior Court action as an abuse of process.

The defendants had previously commenced 67 separate Small Claims Court actions against the plaintiff regarding HVAC rental contracts.

The plaintiff subsequently commenced this Superior Court action against the defendants, seeking damages for breach of contract and defamation, and seeking to traverse or stay the Small Claims Court actions.

The court found that the Superior Court action was duplicative of the plaintiff's defences in the Small Claims Court actions and sought to circumvent the jurisdiction of the Small Claims Court.

The court concluded it would be an abuse of process to permit the Superior Court action to proceed while the Small Claims Court actions were pending, and ordered the action stayed.

The plaintiffs brought a motion to determine the appropriate sanction for the Developer Defendants' continuing contempt of a Mareva and Disclosure Order, following a Court of Appeal decision remitting the matter for re-sentencing.

The court found that the defendants had still not purged their contempt, having failed to properly account for the plaintiffs' $9 million investment.

The court sentenced the individual defendants to 30 days of intermittent incarceration, struck the statement of defence, and deemed the defendants noted in default, with leave to apply to file a defence only if they fully purge their contempt.

The applicant sought judicial review of an HRTO decision dismissing his human rights complaint under s. 34(11) of the Human Rights Code.

The HRTO had found that the applicant's concurrent civil action for wrongful dismissal, which sought damages for intentional infliction of mental distress and moral damages based on the same factual matrix, barred the human rights application.

The Divisional Court applied the reasonableness standard of review and upheld the HRTO's decision, finding it was reasonable to conclude that the civil claim essentially sought remedies for the same alleged Code infringements despite not explicitly pleading the Code.

The defendants brought a motion to discharge a Certificate of Pending Litigation (CPL) obtained ex parte by the plaintiffs regarding an industrial condominium unit.

The plaintiffs had entered into an Agreement of Purchase and Sale and took interim occupancy but failed to close the transaction, leading to a dispute over who breached the agreement.

The court found that while the plaintiffs failed to make full and frank disclosure on the ex parte motion, they established a triable issue regarding their claim for specific performance.

The court dismissed the motion to discharge the CPL but imposed strict terms requiring the plaintiffs to pay the full purchase price into court and pay all outstanding interim occupancy rent.

The defendant paralegal, Eric Sabbah, brought a motion to strike and dismiss claims brought by the plaintiff, Utilebill Credit Corporation.

The plaintiff alleged various torts, including conversion, unlawful interference with economic interests, inducing breach of contract, injurious falsehood, and statutory violations, stemming from Mr. Sabbah's actions in assisting residential homeowners to cancel HVAC equipment rental contracts with the plaintiff.

The court dismissed all claims against Mr. Sabbah, except for the claim of conspiracy, for which the plaintiff was ordered to provide further particulars of the alleged unlawful means.

The court emphasized the protection of solicitor-client privilege and the impropriety of suing opposing counsel for advice given to clients.

Two groups of landowners appealed the Surveyor General's confirmation of a survey that extended road allowances to the water's edge of Georgian Bay, separating their properties from the beach.

The appellants argued the Surveyor General erred by ignoring a previous Divisional Court decision, misapplying common law principles of accretion, and rejecting estoppel arguments.

The Divisional Court dismissed the appeals, finding the Surveyor General made reasonable findings of fact supported by evidence, including that no accretion had occurred and that the original 1820s survey intended the road allowances to reach the water.

The court held the standard of review was correctness for law and palpable and overriding error for fact, and found no such errors.

Following a failed motion by the defendants to have their trial costs paid by various litigation loan providers, the loan providers sought their costs of the motion.

The court declined to award costs to the loan providers, finding that the defendants' motion raised a novel issue regarding the enforcement of a costs award against a litigation loan provider and the requirement for court approval of litigation loan agreements.

Given the novelty of the issue, the court exercised its discretion to make no order as to costs.

Following a lengthy trial where the plaintiff was awarded $50,000 but the defendants obtained a costs award of over $3.4 million, the defendants moved to recover those costs from four non-party litigation loan providers who had advanced funds to the plaintiff.

The court declined to order costs against the non-parties, finding that while the loans carried exorbitant interest rates, providing them did not amount to an abuse of process under the 'person of straw' test or the court's inherent jurisdiction.

The court also noted that while litigation loans should be approved by the court in class proceedings, the statutory requirement to do so did not exist at the time the loans were made.

The defendants, Chris Schoonderwoerd and National Bank Financial, brought a motion to stay an action commenced by Edward Jones in Ontario on the basis of forum non conveniens.

Edward Jones alleged that Schoonderwoerd, a former investment advisor, breached non-solicitation and non-disclosure terms of his employment contract, with the assistance of National Bank Financial.

The court acknowledged jurisdiction in Ontario but found Alberta to be the clearly more appropriate forum, considering the location of parties, performance and alleged breach of contract, and the vast majority of relevant witnesses.

The motion to stay the Ontario proceedings was granted.

The defendant was successful on a motion to strike the plaintiff's claims for inducing breach of contract and intentional interference with economic relations as an abuse of process.

The defendant sought costs of $21,804.92 on a substantial indemnity basis.

The court awarded costs of $17,750 on a partial indemnity basis, noting that the plaintiff's late abandonment of several causes of action unnecessarily lengthened the proceeding, but substantial indemnity costs were not warranted.

The plaintiff, Crown Crest Financial Corp., sued the defendant, a licensed paralegal, alleging he unlawfully obtained confidential business records and misused the information to recruit 14 claimants to sue Crown Crest in Small Claims Court.

The plaintiff advanced claims for inducing breach of contract and intentional interference with economic relations.

The defendant brought a motion to strike the claims under Rule 21.01.

The court granted the motion, finding that the claims were not legally viable on public policy grounds, as they would interfere with the loyalty relationship between a litigant and their legal representative.

The court also found the claims were an abuse of process because they relied on privileged communications.

The claims were struck, but the plaintiff was granted leave to amend to plead privacy torts.

The applicants sought to remove land and PPSA registrations placed by the respondents on the basis of two promissory notes.

The court determined a preliminary issue of whether the promissory notes were enforceable on their face against the applicant corporations.

The court found that because the notes did not name the corporations, despite the individual signatory indicating he had authority to bind a corporation, the notes were only enforceable against the individual personally.

Consequently, the registrations against the corporate applicants were ordered removed.

The plaintiff, Gavita Canada Inc., brought a motion to compel the defendant, National Grower Supply Inc., to deliver a supplementary affidavit of documents and attend an examination for discovery, and for costs.

The defendant opposed, arguing the action was stayed under Rule 11.01 of the Rules of Civil Procedure due to Gavita's amalgamation, which it claimed constituted a transfer of interest.

The court found that amalgamation under the Canada Business Corporations Act does not result in a transfer or transmission of interest, and therefore, the action was not stayed.

The court granted the plaintiff's requests, compelling document production and discovery, and awarded costs thrown away due to the defendant's improper conduct at the prior examination.

The plaintiff, an employment staffing agency, sought an interlocutory injunction against a former Director of Branch Operations and his new employer for alleged breaches of non-solicitation and confidentiality covenants.

The court found the Proprietary Information, Developments Non-Competition and Non-Solicitation Agreement to be valid and binding, rejecting the argument of lack of fresh consideration as the agreement was a condition of employment and presented on the first day.

A strong prima facie case was established for the former employee's solicitation of a major client (Cisco) and misuse of proprietary information (knowledge of a former colleague's value to Cisco).

However, no strong prima facie case was found for solicitation of another client (Bank of Montréal) or employee inducement.

The court determined that the plaintiff would suffer irreparable harm from loss of goodwill and market share, which would be difficult to quantify in damages.

The balance of convenience favored granting the injunction.

A court-appointed receiver sought directions regarding the distribution of proceeds from the sale of a property.

The Applicants, who held a second mortgage, claimed priority over the alleged first mortgagee, Pillar Capital Corporation, arguing that the first mortgage had been paid in full and therefore the subsequent assignment to Pillar Capital was a nullity.

The court found that the first mortgage was indeed paid in full on August 15, 2014, and there was no contemporaneous agreement to assign it.

Consequently, the May 5, 2015, assignment of charge to Pillar Capital was deemed a nullity.

The Applicants' claim for priority was upheld, and the Receiver was directed to pay the remaining amount due on the second mortgage from the sale proceeds.

Claims by Pillar Capital for property management fees, maintenance fees, and certain legal fees were rejected due to lack of proof and contractual basis.

The defendant Colin Bosa brought a motion for an order requiring the plaintiffs, Welhelm Ventures Corporation and John Gregory Aulin, to post $100,000 security for costs on a full indemnity basis.

The plaintiffs opposed the motion.

The court applied Rule 56.01(1) of the Rules of Civil Procedure, noting the plaintiffs conceded the initial onus.

However, the motion was dismissed because it was deemed unjust due to significant delay in bringing it (four and a half years after the statement of defence and after the action was set down for trial) and insufficient evidence regarding the quantum and scale of costs sought.

The defendant moved for costs after the plaintiff discontinued its initial action and immediately commenced a new action with additional parties, preserving the original claim.

The court dismissed the motion for costs, finding that the discontinuance was a procedural step to restart litigation and add parties, not a substantive end to the dispute.

The court held that the plaintiff had a bona fide cause of action and that the defendant's preparation for a stay motion was premature given ongoing communications.