Howard Wolch

In a dental malpractice action, the plaintiffs sought to have two experts accompany their counsel at the examination for discovery of the defendant dentist, and requested a ruling that these experts could still testify at trial.

The court permitted the plaintiffs' counsel to be accompanied by a specialist expert, but not a general dentist, to assist with highly technical subject matter.

However, the court declined to rule that the specialist could still testify at trial, warning that acting as part of the advocacy team at discovery would likely compromise the expert's objectivity and non-partisanship required for trial testimony.

The applicant brought motions for financial disclosure, interim child and spousal support, and interim disbursements for legal and expert fees in a high-net-worth family law dispute.

The respondent opposed the motions and filed late affidavit evidence.

The court struck the late and inadmissible evidence, ordered the respondent to produce the requested corporate and financial disclosure, and ordered interim child support of $7,207 per month and spousal support of $9,023 per month based on a three-year average income of $458,825.

The court also ordered the respondent to pay $150,000 for the applicant's expert fees and $75,000 for her legal fees under Rule 24(18) of the Family Law Rules.

The applicant brought a motion for various family law relief, including retroactive and ongoing child support, section 7 expenses, and carrying costs for jointly owned properties.

The court determined the appropriate quantum of ancillary post-secondary education expenses to be included under section 7, finding that the adult child should contribute one-third of these expenses.

The court also addressed the respondent's claim for a credit towards carrying costs and apportioned costs for the motion and subsequent case conferences based on divided success and the parties' conduct.

The plaintiff successfully moved for an interlocutory injunction to prevent the defendant landlord from re-entering the leased premises.

The parties could not agree on costs.

The plaintiff sought costs payable immediately, arguing the defendant's conduct forced the urgent motion.

The defendant argued costs should be in the cause.

The court held that because the merits of the case would be decided shortly at an upcoming application, and most of the evidence on the motion related to the merits, the costs of the motion should be reserved to the judge hearing the application.

The plaintiff tenant sought an interlocutory injunction to restrain the defendant landlord from exercising a right of re-entry over leased commercial premises.

A dispute had arisen regarding the share of realty taxes payable by the plaintiff, and the defendant had issued a notice of default and attempted to re-enter the premises.

Applying the RJR-MacDonald test, the court found a serious issue to be tried regarding contractual interpretation, irreparable harm to the plaintiff's business and reputation if locked out, and a balance of convenience favouring the plaintiff.

The motion for an interlocutory injunction was granted.

A case conference was held after a scheduled 10-day trial was adjourned due to a lack of judicial resources.

The defendant hospital sought leave to bring motions for partial summary judgment and security for costs.

The court denied leave for the summary judgment motion, noting it should have been brought before the action was set down for trial, and directed that any motion for security for costs proceed through regular channels rather than on an urgent basis.

The court also ordered further discovery on the plaintiff's loss of income claim and directed counsel to select a trial date in 2022, emphasizing the unacceptability of further delaying a 10-year-old case.

The applicant estate trustee brought a motion for directions to interpret an ambiguous residuary clause in the deceased's will.

The clause left the residue to 'my brothers sisters late brothers sisters nephews and nieces' without punctuation.

Applying the armchair rule and the presumption in favour of per stirpes distribution in family contexts, the court concluded the deceased intended a per stirpes distribution.

The estate was ordered to be divided into ten equal shares, with one share to each surviving sibling and one share divided equally among the children of each predeceased sibling.

The court addressed scheduling for a package of motions, including the defendant's motion to strike and the plaintiff's motions to add parties and seek leave to plead malicious prosecution.

The court determined that the two hours booked were insufficient and that the motions needed to be sequenced, with pleadings finalized before the motion to strike could be heard.

The plaintiff's motion to lift a publication ban from related criminal proceedings was directed to the criminal court judge who issued it.

The remaining motions were adjourned and scheduled for future dates.

The appellants appealed an arbitration award, arguing the arbitrator lacked jurisdiction and erred by proceeding in their absence after they refused to execute the arbitration agreement and did not attend the hearing.

The Superior Court of Justice dismissed the appeal, finding that the arbitrator correctly proceeded under section 27(3) of the Arbitration Act.

The court held that any jurisdictional objection must be raised before the arbitrator at the beginning of the hearing, which the appellants failed to do.

The plaintiff sought partial indemnity costs of $116,706.47 following a successful motion and the dismissal of the defendant's cross-motion.

The plaintiff argued the defendant engaged in suspicious and abusive conduct, including commencing a separate action in Korea and insisting on unnecessary foreign law experts.

The court agreed that the defendant's aggressive and strategic conduct unnecessarily complicated the dispute.

The court awarded costs to the plaintiff in the amount of $80,000 against the primary defendant and $3,000 against the secondary defendant.

The plaintiff brought a motion to consolidate two actions or amend its statement of claim.

The defendant brought a cross-motion to stay the second action based on an arbitration clause in their sales agreement.

The court found that the defendant was estopped from relying on the arbitration clause because it had previously commenced a court action in Korea alleging breach of contract, rendering the arbitration clause inoperative.

The cross-motion to stay was dismissed, and the plaintiff's motion to amend and consolidate the actions was granted to avoid a multiplicity of proceedings.

The defendants brought a motion to strike the plaintiff's statement of claim, which alleged oppression and breach of good faith by the individual directors and officers in relation to a share purchase agreement.

The defendants argued the plaintiff lacked standing as the conduct occurred before it became a shareholder, and that insufficient facts were pleaded to attract personal liability.

The court dismissed the motion to strike, finding the plaintiff had standing as a beneficial shareholder and that the pleadings sufficiently alleged the defendants' personal involvement and benefit.

The court also granted the plaintiff's motion to consolidate the action with a related proceeding against the corporate defendants.

The applicant sought an order for directions and his appointment as Estate Trustee under a 2020 Will.

The respondent objected, alleging the deceased lacked testamentary capacity due to alcoholism and was subject to undue influence.

The respondent sought widespread production of the deceased's medical, legal, and financial records.

The court found that the respondent had not met the minimal evidentiary threshold required by Neuberger Estate v. York to compel proof in solemn form or order extensive productions at this stage.

The court adopted the applicant's proposed order for directions, allowing the respondent to file further evidence before determining if the threshold is met.

The moving party, executor of an estate in Saskatchewan, brought a motion to stay or dismiss an application in Ontario regarding a Locked-in Retirement Account (LIRA) on the basis of jurisdiction.

The responding party, the deceased's former spouse residing in Ontario, sought a declaration that she was the designated beneficiary of the LIRA held by CIBC.

The court applied the Van Breda test and found that Ontario had jurisdiction simpliciter because the contract was located in Ontario, the executor lived in Ontario, and CIBC's head office was in Ontario.

The court also declined to find that Saskatchewan was a more appropriate forum, dismissing the motion and awarding costs to the responding party.

The moving party defendants sought an interlocutory injunction to restrain the plaintiffs/defendants by counterclaim from competing, soliciting vendors, and using their brand, as well as orders to unfreeze a bank account and provide an accounting.

The dispute arose from a complex business arrangement and subsequent breakdown between the parties involving the transfer of a medical aesthetics business.

The court granted the injunction against the principal plaintiff and his related entities, finding a strong prima facie case of breach of a negative covenant and irreparable harm, but declined to grant the injunction against former employees who had been terminated.

The court also ordered the unfreezing of the bank account and an accounting.

The plaintiff and defendant sought costs on a full indemnity scale after the moving party withdrew her motion to intervene and set aside a writ of possession.

The moving party had claimed to be a lawful tenant under a lease, which the plaintiff and defendant alleged was fraudulent.

The court declined to award full indemnity costs, noting that because the motion was withdrawn, it could not make the necessary factual findings of reprehensible conduct.

The court awarded partial indemnity costs, fixing the plaintiff's costs at $68,092.48 and the defendant's costs at $11,959.92, payable by the moving party.

The applicants brought a motion to set aside a 2015 judgment based on alleged new evidence of fraud and deceit, and sought $500,000 in damages.

The court dismissed the motion, finding that the applicants had already attempted to introduce this evidence before appellate courts on five previous occasions, rendering the matter res judicata and an abuse of process.

The respondents' cross-motion to authorize the Master on an outstanding reference to determine interest rates was granted.

The court awarded substantial indemnity costs of $21,644.02 against the applicants due to their history of bringing hopeless, duplicative proceedings.

Following two related applications argued together, the court determined the appropriate costs awards.

The successful party sought a global partial indemnity costs award exceeding $40,000 against two opposing parties.

The court emphasized the importance of proportionality, reasonable expectations of the parties, and compliance with Rule 57.01 of the Rules of Civil Procedure, particularly the requirement to exchange Costs Outlines before the hearing.

Finding the claimed amount excessive and inadequately supported by time breakdowns, the court reduced the requested costs and apportioned them separately between the two opposing parties based on their respective involvement in the proceedings.

Following a motion for security for costs, the defendants sought additional costs related to the fees of former counsel and other related issues.

The court declined to increase the amount of security for costs because the defendants provided redacted accounts that failed to show the nature of the work performed, despite the court previously requesting such evidence.

The court also rejected arguments that a prior settlement offer should affect the costs analysis, as the amount ordered was lower than the offer and the conduct of the plaintiff did not justify substantial indemnity costs.

Additional costs requested for undertakings issues were also denied.

The previously ordered security and costs structure remained unchanged.

Celadon brought an application seeking a declaration that Hoss exercised an option to purchase a leased commercial property on Celadon's behalf, pursuant to an Asset Purchase Agreement.

Hoss brought a separate application seeking an order requiring the landlord, Turoczi, to transfer the property to Hoss pursuant to the option.

The court found that Celadon failed to exercise its discretion to require an assignment of the lease within a reasonable time, that there was no equitable assignment of the lease, and that a subsequent Release Agreement terminated any right Celadon had to the lease.

The court also found that Hoss was in good standing under the lease when it exercised the option to purchase.

Celadon's application was dismissed, and Hoss's application was granted, ordering Turoczi to transfer the property to Hoss.