Gregory Govedaris

A court-appointed receiver brought a motion to amend an Approval and Vesting Order to correct the inadvertent inclusion of three instruments in Schedule C — two municipal encroachment registrations and a statutory Metrolinx transit corridor notice — that neither party intended to be expunged from title.

On an enhanced evidentiary record, the court found on a balance of probabilities that the error arose from counsel's inadvertence in attaching an earlier unvetted draft.

Applying the Sattva framework, the court held that the Metrolinx Registration constituted a Permitted Encumbrance under the APS, as it was a statutory notice arising by operation of law reflected in any laws affecting the lands and known to the parties at the time of contracting.

The court confirmed jurisdiction to amend the order under both s. 187(5) of the Bankruptcy and Insolvency Act and Rule 59.06(1) of the Rules of Civil Procedure, finding the AVO failed to express the court's manifest intention to approve the parties' bargain.

The purchaser's purported termination of the APS was held to be ineffective because the AVO as contractually defined could not be delivered until the drafting error was corrected.

Costs of $10,000 were awarded to the Receiver.

The defendants moved for an interim stay of the plaintiff's mortgage enforcement actions, arguing that the plaintiff acted in bad faith and fraudulently, and that they could secure refinancing within four weeks.

The plaintiff opposed the motion.

The court dismissed the defendants' motion, finding no credible evidence of bad faith or fraud by the plaintiff.

Applying the principles for restraining a mortgagee's rights and the RJR-MacDonald test for a stay, the court concluded there was no serious issue to be tried, no irreparable harm to the defendants, and that the balance of convenience overwhelmingly favoured the plaintiff.

This motion addressed whether a party (Yan Jun Li) could examine other parties (Jiapeng Zhou and Lihui Gu) who had not sworn affidavits in support of a consolidation motion.

The court clarified that the right to examine a witness under Rule 39.03 of the Rules of Civil Procedure is not automatic and requires demonstrating that the evidence sought is relevant, obtainable from the witness, and necessary for the motion.

The court found that the questions Li sought to ask, pertaining to common questions of fact or law or transactional nexus for consolidation, were matters of legal argument based on pleadings, not factual evidence from the parties.

Consequently, the Notices of Examination served on Jiapeng Zhou and Lihui Gu were quashed.

The court also granted an indulgence to Li's counsel to cross-examine Caitlyn Reid, despite previous non-compliance with the timetable.

Costs were awarded to Zhou and Gu.

The plaintiff law firm sought an interlocutory injunction against a former employee to prevent client solicitation and disclosure of confidential information.

The court applied the three-part test for injunctive relief, finding a serious issue to be tried regarding the employment contract and breach, irreparable harm due to difficulty quantifying lost referrals, and that the balance of convenience favored the plaintiff.

The injunction was granted, restricting the defendant from soliciting clients, disclosing confidential information, and requiring her to forward client communications to the plaintiff firm.

Costs for the motion were reserved to the trial judge, except for a third party (Grillo Law) who was awarded partial indemnity costs for successfully excluding privileged evidence.

This endorsement addresses two motions in a complex litigation involving allegations of misappropriation of confidential information and trademark infringement.

The first motion, brought by the plaintiffs, sought further document production from the defendants and leave to amend the claim.

The second motion, brought by certain defendants, sought forensic examination of specific electronic documents and production of network access records from the plaintiffs, and also proposed bifurcation of a key issue.

The court ordered reciprocal production of relevant confidential business documents under a protective order, denied bifurcation due to lack of consent, ordered the plaintiffs to undertake a forensic search for disputed electronic documents and produce network access records, and largely granted the motion to amend the claim, with the exception of a plea to pierce the corporate veil.

Metrolinx sought substantial indemnity costs against 1604945 Ontario Inc. following motions heard in February 2021.

Metrolinx alleged reprehensible conduct by the plaintiff's solicitor, including abusive remarks, failure to provide relevant law, and vexatious actions that unnecessarily lengthened proceedings.

The plaintiff argued costs should be left to the trial judge and denied reprehensible conduct.

The court found the plaintiff's counsel's conduct, particularly towards Metrolinx's female counsel, unprofessional and awarded Metrolinx substantial indemnity costs of $47,270.75, reduced by $5,000 for Metrolinx's non-compliance with page limits for submissions.

The plaintiff sought clarification of a previous judgment regarding the specific lands subject to an easement dispute, and moved for a further and better affidavit of documents from the defendant regarding its construction plans.

The defendant requested production of the plaintiff's full commercial leases.

The court dismissed the plaintiff's motion for further documents, finding the defendant's construction plans irrelevant to whether the plaintiff has an easement.

The court ordered the plaintiff to produce its full leases and clarified the geographic boundaries of the subject lands.

The plaintiff, 1604945 Ontario Inc., sought an interlocutory injunction to prevent Metrolinx from interfering with its use of a "laneway" on Metrolinx's property, over which the plaintiff claimed a prescriptive easement.

Metrolinx, a Crown Agency, intended to use the land for major public transit infrastructure projects.

The court dismissed the plaintiff's motion, finding no serious issue to be tried regarding the prescriptive easement claim, no irreparable harm to the plaintiff, and that the balance of convenience strongly favored Metrolinx due to the public benefit and significant costs associated with delaying the infrastructure projects.

The court emphasized that federal railway legislation prevented the acquisition of prescriptive easements over federal railway lands and that the plaintiff failed to provide sufficient evidence of continuous, uninterrupted use or a proper legal description of the claimed easement.

The plaintiffs brought a motion seeking to disqualify Minden Gross LLP as counsel for the corporate defendant Synoptic Medical Assessments Inc. (SMAI) due to an alleged conflict of interest involving lawyer A. Irvin Schein.

The plaintiffs asserted that Mr. Schein had a prior solicitor-client relationship with plaintiff Mina Bechai and that his continued representation of SMAI, while also acting for Dr. Hanna (a director and shareholder of SMAI and an adverse party in a shareholder dispute), created a disqualifying conflict.

The court dismissed the motion, finding that the plaintiffs failed to establish a prior solicitor-client relationship between Bechai and Schein, or that any confidential information relevant to the current matter was exchanged.

The court also found no evidentiary support for other alleged conflicts and affirmed the director's right to instruct corporate counsel.

The plaintiffs brought a motion to compel the defendants to provide further and better responses to a request to inspect documents, specifically concerning particulars of fraud and misrepresentation allegations in their counterclaim.

The court dismissed the motion, finding that the issue of further productions could be more appropriately addressed during oral discoveries.

The Master emphasized that granting the requested relief would further delay the litigation, contrary to the principle of proportionality, and that the plaintiffs had other avenues, such as oral discovery or motions to strike/summary judgment, to advance the litigation.

This case conference addressed multiple motions in ongoing construction lien actions.

The plaintiff sought orders for substituted service of a Summons to Witness and a remedy for the defendant's failure to deliver will-say statements.

The defendant sought production of evidence for a personal costs claim against its counsel and a determination on the preclusive effect of a prior order on costs.

The court addressed the requirements for will-say statements, clarified the scope of a previous preclusion order, and deemed the personal costs claim premature, to be addressed by the trial judge.

The defendant 1623242 Ontario Inc. sought leave to bring a motion for summary judgment to dismiss construction lien actions against it, or to discharge the liens.

The plaintiff Great Lakes Copper Inc. opposed this, arguing that the issues involved disputed facts and would not substantially shorten a trial.

The court dismissed the defendant's motion for leave, finding that bifurcating the trial or granting leave for summary judgment would not be in the interests of justice due to the inter-dependence of factual and legal issues, and the novelty of the legal questions concerning environmental contamination and owner's liability under the Construction Lien Act.

The defendant in two construction lien actions sought leave to move for summary judgment dismissing the actions.

The claims arose from the remediation of environmental contamination.

The court reviewed the principles of summary procedure under the Construction Lien Act and the expanded summary judgment rules following Hryniak.

Finding the record insufficient to determine whether a summary judgment motion or a trial of an issue would be most appropriate, the court ordered the parties to exchange draft issues of law and agreed statements of fact before resuming the conference.

The plaintiff purchased an industrial property that was later discovered to be contaminated with PCBs.

The plaintiff sued the vendor and related companies for fraud, alleging they concealed the contamination.

After several years of litigation, the plaintiff moved to discontinue its fraud action and counterclaim.

The defendants opposed, seeking dismissal and costs on a full indemnity scale.

The court granted the plaintiff leave to discontinue the action on terms that prevent future litigation on the same causes of action.

The court also ordered the plaintiff to pay the defendants' costs fixed at $516,395.23 on a substantial indemnity scale, finding that the fraud allegations were unsubstantiated but not intentionally misleading.

The defendants brought a motion for leave to discontinue their counterclaim and a related fraud action, and to redeem a mortgage.

The plaintiff brought a cross-motion for leave to discontinue its claim for foreclosure.

The court granted the defendants leave to redeem the mortgage upon payment of the principal, interest, and costs totaling over $1.2 million, and granted leave to discontinue their actions upon payment of costs of $516,395.23.

The plaintiff's cross-motion to discontinue the foreclosure claim was dismissed.

Following several procedural motions in related fraud, foreclosure, and construction lien proceedings concerning contaminated industrial property, the court addressed the issue of costs.

The moving party had successfully obtained orders consolidating the actions, transferring the foreclosure proceeding to the same venue as the lien actions, and staying enforcement of any foreclosure order pending resolution of the fraud claim, while also resisting motions for further production.

Applying the principles governing costs under Rule 57.01 of the Rules of Civil Procedure and the Courts of Justice Act, the court held that the moving party was substantially successful and entitled to partial indemnity costs.

The court considered proportionality, complexity, and reasonable expectations of the parties in fixing the amount.

Costs were awarded jointly and severally against the responding parties, with additional costs awarded for an unnecessary adjournment attendance.

The applicant tenants sought a mandatory order requiring the respondent landlord to consent to a change in the operating name of their restaurant.

The landlord had refused consent, citing alleged prior breaches of the lease regarding unauthorized renovations.

The court applied the principles for determining whether a landlord has unreasonably withheld consent, finding that the landlord's concerns about past breaches were being addressed in a separate proceeding and did not justify refusing a simple name change.

The court held the refusal was unreasonable and granted the application, permitting the name change.

Following the dismissal of a landlord’s motion for security for costs and a motion to strike affidavit paragraphs, and the granting of the tenants’ motion to convert an application to an action, the successful tenants sought substantial indemnity costs.

The court considered the factors under Rule 57.01 of the Rules of Civil Procedure and the effect of settlement offers that effectively waived costs if accepted.

The court found the tenants had achieved full success and that their claimed hours and hourly rate were reasonable given the complexity and importance of the motions.

Applying the principle of reasonableness articulated in appellate authority, the court rejected the landlord’s proposed reduced costs figure.

Substantial indemnity costs of $8,800 were awarded.

A commercial landlord brought a motion for security for costs and to strike portions of affidavits filed by the tenant and subtenant in an application seeking consent to change the restaurant’s operating name under a lease agreement.

The tenants opposed the motion and brought a cross‑motion seeking to convert a related landlord application into an action due to disputed facts.

The court held that the tenants’ application had merit and that there was no basis for security for costs, noting the tenants had substantial assets and the matter was not frivolous.

The court also declined to strike the impugned affidavit evidence and held that communications between the parties should be disclosed.

Because the landlord’s related application involved numerous contested factual issues requiring viva voce evidence, it was converted into an action.

The plaintiff brought a motion to amend the Statement of Claim to replace the fictitious name 'John Doe' with the name of the defendant insurer's employee, Maria Diolanda.

The defendant opposed the motion, arguing it was an attempt to add a new party after the expiry of the limitation period.

The court found that the original pleading clearly pointed the 'litigation finger' at the person who sold the insurance policy, making this a case of misnomer rather than adding a new party.

The motion to correct the misnomer was granted.