Heather J. Williams

The applicants brought a motion for leave to appeal the decision of David L. Edwards J. dated December 15, 2021.

The Divisional Court allowed the motion for leave to appeal.

Costs of the motion were fixed at $5,000, to be determined by the panel hearing the appeal.

The defendant brought a motion to strike the plaintiff's statement of claim without leave to amend.

The plaintiff sought to recover over $3.4 million allegedly owed to his former company, which had been forced into bankruptcy.

The court found that the plaintiff lacked standing to bring claims on behalf of the corporation and that the claims were an abuse of process, as they resurrected issues previously struck in a 2015 action.

The motion was granted, and the statement of claim was struck in its entirety without leave to amend.

The defendants brought a motion to stay the plaintiff's breach of contract action on the basis of an arbitration clause requiring disputes to be arbitrated in Hong Kong.

The plaintiff argued the arbitration clause was inoperative because the defendants had waived their right to arbitrate through uncooperative conduct.

The court found no waiver, as there was no evidence the defendants had an unequivocal and conscious intention to abandon their right to arbitrate.

The action was stayed and the parties were referred to arbitration.

Following a summary judgment motion where the defendants were largely successful, the parties settled the action and submitted a joint costs brief.

The defendants sought $32,014.17 in partial indemnity costs, while the plaintiff argued for $15,000, noting the defendants spent twice as much time and charged three times as much as the plaintiff.

The court found the defendants' time investment was generally reasonable given what was at stake, but acknowledged some overkill, ultimately fixing costs at $27,500 all-inclusive.

The applicant sought a declaration that a handwritten document prepared by his late sister was a valid holographic will, and an order permitting him to apply for a certificate of appointment of estate trustee.

The court found that the document was not a valid holographic will because it did not contain a deliberate or fixed and final expression of intention to dispose of property upon death, and the applicant failed to establish the deceased's testamentary capacity given suspicious circumstances surrounding her prior declaration of incapacity.

The request to apply for a certificate of appointment without a will was adjourned for further evidence regarding the search for a will.

The defendants sought costs after successfully moving to dismiss the plaintiff's action as an abuse of process.

The court had previously found that the action was commenced under a pseudonym by a declared vexatious litigant who required leave to start an action.

The court awarded substantial indemnity costs to the CBC defendants and another defendant, finding the plaintiff's conduct justified elevated costs.

The court also noted inappropriate submissions made by the plaintiff's counsel.

The defendants brought a motion to dismiss a $20 million libel action, alleging the plaintiff was actually a declared vexatious litigant using an alias to circumvent a court order requiring leave to commence proceedings.

The plaintiff repeatedly failed to comply with court orders to produce government-issued identification.

The court drew an adverse inference from this failure, concluding the plaintiff was indeed the vexatious litigant using an alias.

The action was dismissed as an abuse of process and for failing to obtain the required leave.

The defendants brought a motion under Rule 2.1.01 to dismiss the plaintiffs' action as frivolous, vexatious, or an abuse of process.

The court found that one plaintiff, Dr. Basmadji, was subject to a vexatious litigant order under s. 140 of the Courts of Justice Act and had not obtained leave to institute the action.

The court also inferred that Dr. Basmadji, who is not a lawyer, improperly instituted the action on behalf of both plaintiffs, including Mr. Chevalier, who may be a party under disability.

Consequently, the action was stayed under Rule 2.1.03(1).

The stay was without prejudice to Mr. Chevalier's right to commence a further proceeding, provided he complies with rules regarding representation and disability.

No costs were awarded.

The moving party, a residential property owner, brought a motion under section 47 of the Construction Lien Act to discharge two construction liens registered against her property by a subcontractor and an equipment rental company.

The moving party argued the liens were out of time under the 45-day preservation deadline of the old Construction Lien Act.

The court dismissed the motion, finding triable issues regarding whether the old Act or the new Construction Act (with a 60-day deadline) applied, and when the lien claimants last supplied services and materials to the improvement.

The plaintiff, Deirdre Moore, brought an action in Ontario against Dr. Paule Kemgni (a Quebec-based psychiatrist) and Jonathan Kiska (an Ontario resident).

Dr. Kemgni moved to stay the action against her, arguing that Ontario lacked jurisdiction or was not the proper forum.

The court applied the "real and substantial connection" test from Club Resorts Ltd. v. Van Breda.

It found that none of the presumptive connecting factors applied to Dr. Kemgni, as her professional activities and the alleged tortious conduct occurred entirely in Quebec, and the damages claimed from her were separate from those claimed against the Ontario-resident co-defendant.

The court distinguished Cesario v. Gondek, noting that the plaintiff's pleadings did not allege joint tortfeasors or inseparable damages.

Consequently, Ontario was found to lack jurisdiction over the action against Dr. Kemgni, and the action against her was stayed.

The court also briefly addressed forum non conveniens, concluding that Quebec would be the more appropriate forum due to the location of the defendant, her practice, applicable law, and witnesses.

Eco Depot Ltd. brought a motion under the Construction Act to discharge a construction lien registered by RJ Concrete & Construction Ltd., arguing willful exaggeration and abuse of process, or alternatively, a reduction in the lien amount.

Eco Depot also sought an extension to file a statement of defence.

The court found that the lien was not willfully exaggerated or an abuse of process, as the calculation was based on the agreed contract price for completed work, not actual costs.

However, the court agreed the lien amount was too high and ordered it reduced from $70,282.42 to $47,230.42.

The court also granted Eco Depot an extension to file its statement of defence.

The defendant, Ronald Flom, brought a motion to dismiss or stay the action of the corporate plaintiff, O Cannabis We Stand On Guard for Thee Corporation, for lack of authority, and to consolidate the plaintiffs' Ottawa action with his earlier Toronto action for fees.

The corporate plaintiff discontinued its action shortly before the hearing.

The court found significant overlap between the Ottawa and Toronto actions, arising from the same transaction, and ordered the Ottawa action stayed until the Toronto action's assessment hearing was determined, after which it would be consolidated as a counterclaim in Toronto.

The court also addressed costs, finding the plaintiffs and their counsel jointly and severally liable for substantial indemnity costs due to the unauthorized corporate action and the plaintiffs' failure to accept a reasonable offer to settle.

The defendants sought an order to cross-examine the plaintiff's counsel's assistant, Laurel Saunders, on an affidavit filed in an upcoming motion to enforce a settlement.

The plaintiff's counsel argued the affidavit only attached uncontentious correspondence and that Ms. Saunders had nothing relevant to add, citing privilege.

The court granted the defendants' motion, affirming the prima facie right to cross-examine under Rule 39.02(1) and finding no sufficient reason to prevent it, especially given potential future evidentiary developments from non-party lawyer examinations.

Costs were awarded to the successful defendants.

The parties brought competing applications regarding the proceeds of two life insurance policies owned by their late mother, and both sought an accounting for the time the other acted as attorney for property.

Following a decision where success was divided on the insurance policies and both parties' misappropriation claims were dismissed for lack of standing, both parties sought costs.

The court found that both parties contributed to the complexity and cost of the litigation by raising issues without legal basis.

Consequently, the court ordered that both parties bear their own costs.

This supplementary costs endorsement addresses a request to reconsider a previous costs decision.

The court had initially ordered Gordon Brown to pay Christina Rudin-Brown and Jeanne Brown $150,000 in costs, which was a reduction from $200,000 due to a $50,000 payment their lawyers received from Carolyn Emily Brown's assets.

Christina Rudin-Brown and Jeanne Brown sought reconsideration, arguing the deduction effectively shifted their contribution to Gordon Brown's costs.

The court, exercising its jurisdiction to reconsider, found that while accounting for the $50,000 payment was appropriate, deducting the entire amount penalized the applicants.

To ensure fairness and avoid over-compensation, the court adjusted the deduction by 25%, reducing it to $37,500.

Consequently, Gordon Brown was ordered to pay Christina Rudin-Brown and Jeanne Brown $162,500 in substantial indemnity costs.

The court also provided direction on how these costs should be paid.

Following the dismissal of an application challenging a will based on testamentary capacity, the court determined costs.

The applicant argued that public policy considerations in estate litigation justified having her costs paid by the estate.

The court rejected this argument, finding the applicant's concerns about capacity were unfounded and her disinheritance was rational.

The applicant was ordered to pay the successful respondent's costs on a partial indemnity basis, with any shortfall to be indemnified by the estate.

The plaintiff sought default judgment against a chiropodist who performed allegedly unnecessary and harmful stent insertion surgery on both of his feet.

The defendant failed to deliver a statement of defence.

The court granted default judgment, finding the pleaded facts established negligence and lack of informed consent.

The court awarded $150,000 in general damages, $81,624 for past loss of income, $180,000 for future loss of income, plus prejudgment interest and costs.

The garnishee brought a motion to reinstate its appeal of an associate judge's order, which had been struck by the registrar for failure to file a motion confirmation form.

The creditor brought a cross-motion to strike the garnishee's affidavit and for judgment.

The court found that the Rules of Civil Procedure do not clearly require a motion confirmation form for an appeal of an interlocutory order of an associate judge, and the creditor should have consented to the reinstatement.

The court granted the motion to reinstate the appeal and dismissed the creditor's motion.

The applicant mother brought a motion to change a previous order to reflect that the parties' son's primary residence had changed to her home, and sought retroactive child support.

The respondent father argued the mother was intentionally under-employed and opposed the support calculations.

The court found the son's primary residence had been with the mother since February 2020 with the father's consent, constituting a material change in circumstances.

The court rejected the father's claim of intentional under-employment, finding the mother's reduced income was due to health issues.

The court ordered the father to pay $33,469.08 in child support arrears and ongoing support of $714 per month.

The defendants brought a motion for leave to amend their statement of defence and counterclaim in an action by the plaintiff bank to enforce loan agreements.

The proposed amendments sought to plead that all defendants suffered damages, add a claim for the tort of deceit, and expand pleadings regarding breach of honesty and good faith.

The plaintiff opposed, arguing the amendments were statute-barred, an abuse of process, and untenable at law.

The court granted leave for all amendments, finding they either particularized existing claims or were based on newly discovered facts with a reasonable explanation for the delay.

The defendants were ordered to pay $1,050 plus HST for the costs of the plaintiff preparing an amended reply.