Ethan Rogers

This ruling addresses four summary judgment motions concerning two defaulted mortgage loans.

The plaintiff lenders sought summary judgment against the defendant borrowers for repayment.

The defendants counterclaimed, alleging fraud and conspiracy by various parties, including the lenders and their lawyers, and sought relief under the Unconscionable Transactions Relief Act.

The court granted summary judgment to the lenders for the outstanding mortgage amounts but stayed enforcement pending the resolution of the counterclaim.

The counterclaim against the lenders (Flexpark, Westhaven, and related individuals) was allowed to proceed to trial due to genuine issues of fact regarding fraud and collusion.

However, the counterclaim against the lenders' lawyers (Sandra De Bartolo and Di Mauro Law Professional Corporation) was dismissed, as they owed no duty of care to the borrowers and no evidence of their involvement in fraud was presented.

The court found insufficient evidence to apply the Unconscionable Transactions Relief Act.

Tianya Shao, a director and secretary of the Plaintiff, Prime Global Solutions Inc., brought a motion under sections 246(1) and 247 of the Business Corporations Act (Ontario) seeking leave to bring a derivative action on behalf of the Plaintiff and to be appointed to control its conduct.

The Defendant, Lambton Conveyor Limited, did not oppose the motion.

Three other directors of the Plaintiff (Daniel Sturgeon, John Christopher Moorhouse, and Richard Depooter) refused to consent to the relief sought, necessitating the motion, but did not appear to oppose it.

The court granted leave for the derivative action, appointed Mr. Shao to control its conduct, and awarded substantial indemnity costs of $6423.02 against the three non-consenting directors, payable jointly and severally.

The court also addressed potential procedural defects by invoking Rules 1.04(1), 1.04(1.1), 2.01, and 2.03 of the Rules of Civil Procedure.

The appellants failed to appear at the appeal hearing before the Court of Appeal for Ontario.

Despite receiving notice of the adjournment, they did not contact the court regarding the status of the appeal.

The court reviewed the written materials and determined that the appeal had no reasonable prospect of success.

The appeal was dismissed and costs were awarded to the respondent.

The plaintiff brought a motion seeking an order for her examination for discovery by video conference from Lithuania, leave to examine the defendant before trial due to his advanced age, and assignment of the proceeding to case management.

The court granted all three requests, finding it just given the plaintiff's intention to return to Lithuania, the defendant's age, and the serious nature of the allegations.

However, despite the plaintiff's success on the substantive relief, the court awarded $1,000 in costs to the defendant, payable by the plaintiff, citing the plaintiff's insufficient efforts to resolve matters prior to and after bringing the motion.

The plaintiff sought costs for the defendant's abandoned motion for security for costs.

The court, applying Rule 37.09(3) of the Rules of Civil Procedure, found the plaintiff entitled to costs.

Considering the circumstances, including the delivery of motion records and preparation for cross-examinations but absence of facta or actual cross-examinations, the court fixed the all-inclusive costs at $10,000, rejecting both the plaintiff's higher claim of $21,847.65 and the defendant's lower offer of $4,500.

The decision emphasized that costs awards should reflect a fair and reasonable amount rather than an exact measure of actual costs.

The plaintiff in a wrongful dismissal action sought leave under Rule 48.04 to bring a motion to serve an expert report regarding the definition of 'information technology professional' after the action had been set down for trial.

The defendant had pleaded that the plaintiff was exempt from overtime pay under the Employment Standards Act, 2000 because he was an information technology professional.

The court dismissed the motion, finding that the plaintiff had known of this defence throughout the litigation and provided no plausible explanation for the delay in seeking an expert report beyond counsel's inattention.

The applicant brought a motion to strike several paragraphs from an affidavit filed by the respondent in an underlying application for unpaid wages.

The impugned paragraphs alleged that the applicant was terminated for cause due to sexual harassment and insubordination.

The court found that because the underlying application sought only unpaid wages earned prior to termination and not damages for wrongful dismissal, the allegations regarding cause for termination were clearly irrelevant and scandalous.

The court granted the motion and struck the paragraphs pursuant to Rules 25.11, 38.12, and 39.01(5) of the Rules of Civil Procedure.

The plaintiff moved under Rule 59.06(2) to set aside or vary a prior order dismissing summary judgment, alleging fraud or newly discovered facts concerning the non-disclosure of a substantial payment from the defendant solicitor's trust account to a co-defendant paralegal, labelled "Sawah fees." The plaintiff also sought to compel the defendant solicitor's examination for discovery in Mississauga rather than Winnipeg.

The court found the non-disclosure suspicious but determined the new evidence was insufficient to overturn the summary judgment dismissal, concluding that the matter should proceed to trial for credibility assessments.

The court granted the request for discovery in Mississauga, citing efficiency and the simplified rules.

The plaintiffs brought motions to continue an action against the estate of a deceased defendant, to amend their statement of claim, and related procedural relief.

The court considered the interaction between Rules 10.02 and 11.02 of the Rules of Civil Procedure concerning continuation of proceedings where a party has died.

Finding that the deceased’s estate had an interest in the proceeding and that the named executor had not taken formal steps to administer the estate, the court exercised discretion to allow the action to continue against the estate without requiring probate or formal continuation procedures.

The court further addressed scheduling and priority issues between a Rule 21 motion to determine a question of law and a motion to amend pleadings.

The action was ordered to continue against the estate and related motions were adjourned to be heard together at a later date.

Following earlier reasons granting partial default judgment in a commercial dispute, the plaintiffs made further submissions seeking a declaration that the defendants owed them a fiduciary duty and requesting reconsideration of punitive damages.

The court reviewed the legal framework governing fiduciary relationships, emphasizing that fiduciary duties arise from specific relationships involving discretion, unilateral power, and vulnerability, and generally require a voluntary assumption of loyalty obligations.

The court held that the parties were arm’s‑length commercial actors engaged in a business relationship for mutual profit, and that the equitable trust remedies previously recognized were imposed after the fact to prevent unjust enrichment rather than to establish fiduciary obligations.

As a result, the court declined to declare the existence of a fiduciary duty and refused to revisit the earlier determination on punitive damages.