Elizabeth Kurz

The plaintiff commenced an action regarding a stream of royalty payments from a mine in Guatemala.

The defendants brought motions to strike the claim.

In response, the plaintiff delivered an amended statement of claim.

The defendants moved to declare the amended claim a nullity, arguing it could not be amended without leave in the face of a motion to strike.

The plaintiff brought a cross-motion for leave to amend.

The court held that while leave is required to amend a claim in the face of a motion to strike, the motion for leave should be heard first.

The court granted the plaintiff leave to amend, finding that the proposed amendments were not time-barred, did not withdraw admissions, and were sufficiently particularized.

Following the dismissal of the plaintiffs' claim for lack of jurisdiction, the successful defendants sought costs of $30,000 on a partial indemnity basis.

The plaintiffs argued for costs of $5,000.

The court considered the principles of fairness, reasonableness, and proportionality under Rule 57.01, noting that the losing party should not be expected to pay for all additional costs incurred by senior counsel when junior counsel argued the motion.

Costs were fixed at $15,000 all-inclusive, reflecting what an informed client could reasonably expect to pay for a motion of moderate complexity.

The defendants moved to dismiss the plaintiffs' action for lack of jurisdiction or to stay it on the basis of forum non conveniens.

The dispute arose from a contract between the corporate plaintiff and the corporate defendant, which was accepted over the internet and contained a forum selection clause designating Germany.

The individual plaintiff attempted to plead the claims in tort and conspiracy to ground jurisdiction in Ontario.

The court found no real and substantial connection to Ontario, as the corporate defendant did not carry on business there and the tort claims were merely an attempt to convert a breach of contract action.

The motion to dismiss the action was granted.