Eric Brosseau

Following a settlement on the first day of trial, the plaintiff and the Kinofilm defendants abandoned their respective claim and counterclaim against each other.

The Kinofilm defendants sought $500,000 in substantial indemnity costs, arguing the plaintiff's actions amounted to a de facto discontinuance under Rule 23.

The court rejected this argument, finding that Rule 23 did not apply as no Notice of Discontinuance was delivered.

Because both parties made substantial claims against each other and both elected not to pursue them, the court found the costs claims to be broadly equivalent and offsetting, making no order as to costs.

The plaintiff, Wayne Safety Inc., brought an urgent ex parte motion seeking Mareva, Anton Piller, and Norwich injunctions, along with certificates of pending litigation (CPLs) and an order to amend the Notice of Action, against its former bookkeeper, Diana Gendelman, her husband Natan Gendelman, and associated numbered companies.

The plaintiff alleged a significant and ongoing fraud, estimated at over $5.2 million, involving the diversion of company funds to accounts controlled by the defendants and the purchase of properties.

The court found a strong prima facie case of fraud and conspiracy, a risk of asset dissipation, and a need to preserve evidence.

All requested relief was granted.

The plaintiff brought a motion to compel the defendant and third party to answer undertakings and refusals from an examination for discovery in a wrongful dismissal action.

The questions related to alleged whistleblower issues, a threatening text message sent by the third party, and unpaid commissions.

The court applied the tests for relevance and proportionality, ordering the respondents to answer most of the questions as they were logically connected to the matters in issue defined by the pleadings, particularly the allegations of bad faith conduct.

Questions that sought legal conclusions or information readily available from another party were not ordered to be answered.

In a wrongful dismissal action, the plaintiff brought a motion to strike the defendant's statement of defence, alleging a pattern of delay and evasion in fulfilling discovery obligations and answering undertakings.

The defendant argued it had made best efforts but was hindered by the sale of its assets and records to a third party, which had restricted access due to the COVID-19 pandemic.

The court declined to strike the defence, finding the defendant's efforts were genuine and its conduct did not rise to the level of deliberate or unequivocal default.

However, the court ordered a limited two-hour re-examination of the defendant's representative and appointed itself for light-touch case management to ensure the action progressed.

The plaintiffs were completely successful on a motion for leave to amend their Statement of Claim.

Both parties sought costs of the motion.

The defendant argued that the plaintiffs received an indulgence and should not be awarded costs, or should pay the defendant's costs.

The court found that while the amendment was an indulgence, the defendant raised multiple meritless arguments that unnecessarily lengthened the proceeding.

The court awarded costs to the plaintiffs fixed at $7,000.

A non-party, Dennis Cibulka, brought a motion to set aside a default judgment of foreclosure and to be added as a defendant in an action concerning a residential property he has occupied since 1959.

The court found that Cibulka was a necessary party to the action and that the interests of justice favored granting the relief sought.

The motion to set aside default judgment was made promptly upon Cibulka learning of it, there was a reasonable prospect of payment if the mortgage was enforceable, and significant net equity in the property would otherwise result in a windfall to the plaintiff.

The court granted the motion, adding Cibulka as a defendant, setting aside the default judgment, and awarded costs to Cibulka.

The Plaintiffs brought a motion for leave to amend their Statement of Claim to include claims based on an earlier 2013 agreement, in addition to the initially pleaded 2015 agreement, for the collection of outstanding invoices.

The Defendant opposed, arguing the amendments constituted a new cause of action after the limitation period and would cause irremediable prejudice.

The court found the proposed amendments arose from the same factual matrix, did not constitute a fundamentally different claim, and that the Defendant had notice of the facts.

The court also found no actual prejudice would result.

Leave to amend was granted.