Emily Evangelista

Two sets of respondents brought motions under Rule 37.14 to set aside an order made in January 2025 striking their pleadings and granting significant relief to the applicant.

The respondents' former lawyer had failed to advise them of the motion leading to the order, lied about bringing a motion to set it aside, fabricated a court hearing and correspondence with judicial officials, and then disappeared from the proceedings.

The court found one set of respondents (the Foulidis respondents) met the test for setting aside the order, having moved forthwith once they discovered the deception, while the other set (the Conforti respondents) did not meet the forthwith requirement due to a six-month delay after retaining new counsel.

However, the court set aside the order for all respondents because maintaining it against only one set would create unmanageable procedural disparity, and directed a case conference to determine which enforcement steps should remain in place.

The appellant, Interhealth Canada Limited, appealed a trial decision dismissing its claims against its former CEO, Michael O’Keefe, and Canadian Hospitals Network International Inc. (CHNI) for breach of fiduciary duty and diversion of corporate opportunities.

The appellant alleged O’Keefe diverted two maturing opportunities (HIH Opportunity and Cromwell Opportunity) to CHNI after his resignation.

The appeal also raised process-related issues, including a "trial by stopwatch" and the dismissal of a recall motion.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the opportunities did not fairly belong to the appellant and were fundamentally different from those the appellant pursued.

The court also found no prejudice from the trial management and upheld the recall motion dismissal.

The appellants, construction lien claimants, appealed a Divisional Court decision that granted priority to a vendor-take-back mortgage, including interest and enforcement costs, over their lien claims.

The Court of Appeal affirmed the Divisional Court's ruling, holding that the priority of prior mortgages under s. 78(3) of the Construction Act extends to arrears in interest and enforcement costs, consistent with long-standing judicial interpretation and practice, and that a vendor-take-back mortgage constitutes an "advance" for the purposes of the Act.

The appeal was dismissed with costs.

The applicant sought to change a $15,000 life insurance beneficiary designation and recover approximately $30,000 in cash transfers and $15,198 in retirement home arrears from the respondent, alleging that her late father lacked capacity and was the victim of undue influence and unconscionable procurement.

The court dismissed the application, finding that the deceased had capacity, the relationship with the respondent was family-like without undue influence or unconscionable procurement, and the claims for monetary relief were barred by the two-year limitation period.

The respondent was awarded partial indemnity costs.

Following a decision where the plaintiffs successfully opposed confirmation of a Master's Report on a single issue that granted them priority over the defendant mortgagees, the court determined the costs of the action.

The plaintiffs sought $117,279.01 based on an offer to settle, while the defendants argued for $3,260.65 due to the plaintiffs' limited success on most issues.

Balancing the proportionality of time spent on the successful issue against the fact that it yielded the plaintiffs' entire desired remedy, the court awarded the plaintiffs $35,000 in costs.

The Defendant Mortgagees brought a motion, and the Lienholders brought a cross-motion, for reconsideration of a judgment regarding priority under s. 78(3) of the Construction Act.

The court reviewed the test for reconsideration, noting it is reserved for rare circumstances involving obvious errors of inadvertence.

Finding that both parties were essentially attempting to re-argue legal questions and valuation findings appropriate for an appeal rather than reconsideration, the court dismissed both the motion and the cross-motion.

The plaintiffs, two lienholders, brought a motion opposing the confirmation of a Master's Report which found that the defendant mortgagees had priority over their construction liens under s. 78(3) of the Construction Act.

The Master had awarded the mortgagees all proceeds from the receivership sale of the contaminated property.

The Superior Court confirmed the Master's finding that the mortgagees had priority for the funds advanced under the vendor take-back mortgage.

However, the Court set aside the portion of the Report granting the mortgagees priority for additional fees, charges, and expenses not directly related to the sale, allowing the lienholders access to the remaining funds to satisfy their liens.

The defendant vendor brought a motion to stay an action commenced by the plaintiff purchasers, arguing that the dispute, concerning the termination of an agreement of purchase and sale due to the alleged incomplete state of a new home, fell under a mandatory arbitration clause.

The plaintiffs opposed, contending that the defendant had waived its right to arbitration by pleading to the action, unduly delayed bringing the motion, and that the matter was suitable for summary judgment.

The court found that the dispute fell within the arbitration clause, the defendant had not unduly delayed, and the matter was not appropriate for summary judgment due to significant factual disputes.

Consequently, the defendant's motion to stay the action was granted, and the plaintiffs' cross-motion for an adjournment to bring a summary judgment motion was implicitly dismissed.

The appellant appealed a motion judge's order dismissing his motion to amend his statement of claim.

The motion judge had refused certain amendments as statute-barred under the Limitations Act, 2002 and deferred other amendments pending the determination of an outstanding motion for partial summary judgment.

The motion judge also awarded costs against the appellant.

The appellant raised two grounds of appeal: alleged bias by the motion judge and error in refusing leave to amend.

The Court of Appeal dismissed the appeal, finding no evidence of bias and upholding the motion judge's discretionary procedural orders regarding the timing of amendments and the statute-barred nature of certain claims.

The court fixed costs following the dismissal of the plaintiff's motion to amend the statement of claim.

The defendants sought substantial indemnity costs, while the plaintiff argued for partial indemnity and proportionality.

The court awarded partial indemnity costs, finding the plaintiff's conduct unnecessarily complicated the proceedings and that the principle of proportionality should not override the court's concerns about the plaintiff's conduct.

Costs were also awarded to a non-party.

The plaintiff, Sam Cosentino, brought a motion to amend his statement of claim for the fifth time to add new transactions, some of which occurred more than two years prior to the motion.

The court dismissed the motion, finding that the proposed amendments would cause prejudice to the defendants, particularly given a pending summary judgment motion.

The court also determined that the new claims were barred by the Limitations Act, as the plaintiff failed to rebut the presumption of prejudice arising from the expired limitation period.

Additionally, the plaintiff's refusal to provide a blacklined pleading, as directed by the court, was noted.

The plaintiff brought a motion to set aside a Registrar's order dismissing its $104 million action for delay.

The action involved claims of breach of contract and fiduciary duty against a former director.

The court found that the litigation delay was adequately explained by the ongoing discoveries and undertakings, and that the failure to set the action down for trial was due to counsel's inadvertence.

Finding no actual prejudice to the defendants, the court exercised its discretion to set aside the dismissal order.

The defendant in a construction dispute brought a motion for security for costs against the plaintiff subcontractor.

The plaintiff opposed the motion, claiming impecuniosity resulting from the defendant's failure to pay for work performed.

The court found that the plaintiff failed to provide robust particularity of its financial situation to establish impecuniosity.

However, recognizing the merit of the plaintiff's claim and the need to balance financial risk against prejudice, the court ordered security for costs on a step-by-step basis, requiring the plaintiff to post $15,000 rather than the $116,571.12 requested by the defendant.