Ira G. Parghi

The defendant, Canadian Pacific Railway Company (CPR), brought a motion for summary judgment to dismiss an action by 863880 Ontario Limited (863) as statute-barred.

The action sought damages for TCE contamination on a property purchased by 863 from CPR's predecessors.

CPR argued 863 had sufficient knowledge of the contamination by April 1991, triggering the six-year limitation period. 863 contended it only gained full knowledge in 1998.

The court found that 863 had actual knowledge of the contamination in April 1991, sufficient to trigger the limitation period, as perfect or complete knowledge of the extent or source of damage is not required.

The motion for summary judgment was granted, and 863's action against CPR was dismissed.

This endorsement addresses costs following a successful motion for default judgment brought by the defendant Joseph Gavin Briggs against the plaintiffs Joe Alessandro and Law Help Ltd. Briggs was awarded $45,285.00 in damages on his counterclaim.

The court, applying factors under Rule 57.01 and s. 131 of the Courts of Justice Act, found the plaintiffs' obstructive conduct increased litigation costs and that Alessandro had abused Briggs' trust.

The court also affirmed that costs may be awarded even when counsel acts pro bono.

Briggs was awarded $15,000.00 in costs.

The Plaintiffs (Arkland Homes Inc. et al. and Zhen Kang) brought an action seeking declarations regarding mortgage standing and to set aside property sales.

This decision addresses three interlocutory motions: the Plaintiffs' motion for an injunction to restrain the sale of the Bannatyne Property, Defendant Qiong Huang's motion for possession of 177 Rumsey Road, and the Plaintiffs' cross-motion for a Certificate of Pending Litigation (CPL) on 171 Rumsey Road.

The court granted the Plaintiffs' injunction and CPL motions, finding serious issues to be tried regarding the mortgage defaults, the application of a significant payment, and allegations of bad faith and improper conduct by the Defendants Ming Wei Liu and Yizi Feng, including the hasty sale of properties below market value and an alarming "self-help" attempt to evict occupants.

The court denied Ms. Huang's motion for possession, concluding that whether she was a bona fide purchaser for value was a genuine issue requiring trial.

The court also ordered consolidation and case management for all related litigation.

The plaintiffs sought an interlocutory injunction against the defendants for passing off their sports hydration products (Cwench) as the plaintiffs' (BioSteel).

The plaintiffs alleged that Cwench's products, flavors, and packaging ("get-ups") were confusingly similar to BioSteel's.

The court dismissed the injunction request, finding that the plaintiffs failed to establish a strong prima facie case or a serious issue to be tried regarding goodwill in their product's get-ups, misrepresentation causing confusion, or actual/potential damages.

The court determined the injunction was mandatory, requiring a higher "strong prima facie case" standard, and found that similarities were common industry features or functional choices, and evidence of consumer confusion was insufficient.

The Kahu Defendants moved to dismiss Park Lawn Corporation's action for knowing assistance as an abuse of process under Rule 21.01(3)(d), arguing it was an improper attempt to re-litigate issues from a previously settled action against a former CEO.

The court denied the motion, finding that Park Lawn was not aware of the Kahu Defendants' alleged misconduct at the time of the previous settlement, the facts and causes of action were not identical, and the case law allows for several liability in knowing assistance claims, which was consistent with the terms of the prior release.

The court also clarified that a consent dismissal does not automatically lead to an abuse of process finding unless the issues could have been raised in the prior action.

The Applicants sought to set aside an arbitrator's decision denying their challenge for bias and to remove the arbitrator, alleging reasonable apprehension of bias due to the arbitrator's undisclosed involvement in another arbitration with the Respondents' counsel, and actual bias from a costs decision.

The court dismissed the application, finding the bias challenge was not brought in a timely manner and that neither reasonable apprehension of bias nor actual bias was established.

The court found no meaningful overlap between the arbitrations and that the arbitrator's finding of 'false statements' did not indicate actual bias.

This endorsement addresses the issue of costs following the Defendants' successful motion to strike the Plaintiff's Statement of Claim for disclosing no reasonable cause of action, or alternatively, as an abuse of process.

The parties were unable to agree on costs.

The court applied principles from the Courts of Justice Act and Rules of Civil Procedure, as well as the Apotex Inc. v. Eli Lilly Canada Inc. decision, to fix costs.

The Defendants were awarded costs slightly higher than partial indemnity, considering the Plaintiff's conduct prolonged the proceedings by not making concessions earlier.

The Plaintiff sought default judgment against the Defendant for wrongful dismissal, discrimination under the Human Rights Code of Ontario, aggravated damages, and damages for inconvenience.

The court granted default judgment, finding the Plaintiff was wrongfully dismissed when her request to work from home to protect her husband's health (due to his disability) was refused, leading to her termination.

This was deemed discrimination based on association with a disabled person under s. 12 of the Human Rights Code.

The court awarded damages for wrongful dismissal, human rights breach, aggravated damages for the high-handed manner of dismissal, and damages for inconvenience caused by an incorrect Record of Employment.

Costs were awarded on a partial indemnity basis.

The Plaintiffs moved for summary judgment due to a mortgage default by the Defendants.

The motion was previously adjourned on consent with terms for the Defendants to refinance, but they failed to comply.

The court applied the Hryniak v. Mauldin test for summary judgment, finding no genuine issue requiring a trial.

The court determined that the Plaintiffs were entitled to the mortgage principal, interest, and various fees, including liquidated damages, which were found not to violate s. 8(1) of the Interest Act.

An order for possession of the property and leave to issue a writ of possession were granted.

The court declined to award additional costs to the Plaintiffs, noting that the liquidated damages clause already compensated them for the costs of bringing the motion.

The defendant, Joseph Gavin Briggs, brought a motion for default judgment on his counterclaim against the plaintiffs, Joe Alessandro and Law Help Ltd. Briggs alleged misrepresentation, breach of duty, and unjust enrichment, stemming from Alessandro, an unlicensed individual, holding himself out as a paralegal and providing inadequate legal services, including entering unauthorized guilty pleas on Briggs' behalf.

Alessandro and Law Help Ltd. were noted in default on the counterclaim due to their failure to participate in the litigation process.

The court found Alessandro and Law Help Ltd. liable for intentional misrepresentation and unjust enrichment, and pierced the corporate veil to hold Alessandro personally liable.

The court awarded compensatory, aggravated, and punitive damages, and ordered the production of legal files.

The applicant condominium corporation sought a compliance order against a unit owner for alleged hoarding, denial of entry to service personnel, and an inoperable vehicle in her parking spot.

The court found that the respondent had engaged in hoarding behavior and unreasonably denied entry on several occasions, and that her car was unsightly and inoperable.

A compliance order was granted, allowing the corporation entry with notice, requiring the respondent to rectify hazards, and to restore or remove her vehicle.

However, the order was narrower than sought by the applicant, with longer notice periods and an obligation for the applicant's personnel to accommodate the respondent's health concerns.

The court declined to award costs to either party, citing divided success and the applicant's excessive allegations.

The plaintiff, a condominium resident, sought statutory and tort-based injunctive and declaratory relief against the defendant, an underground venue operating in his building.

The plaintiff alleged the venue was operating as an unlicensed nightclub, causing severe noise and vibrations constituting a nuisance.

The court found that the defendant was indeed operating as an "entertainment establishment/nightclub" without the proper license, based on its functional activities (e.g., providing dance facilities, minimal seating, ancillary food sales) despite being licensed as an "eating or drinking establishment." The court granted a declaration to this effect and issued both a statutory injunction requiring the defendant to cease operations in contravention of its licensing status, and an interim/interlocutory injunction based in tort, prohibiting the emission of sound audible beyond the lot limit between 10:00 p.m. and 9:00 a.m.

The Applicant, a third mortgagee, sought a declaration of interest in land and the allocation of surplus funds from a power of sale, disputing the priority and validity of the second mortgage held by the Respondent Turton (a solicitor's mortgage).

The application was dismissed without prejudice due to the Applicant's failure to provide notice to the Property owner, whose interests were directly at stake, and the lack of sufficient evidentiary foundation from both the Applicant and Respondent Turton regarding the precise value of their respective mortgages at the relevant valuation date.

The defendants, the City of Richmond Hill and two employees, brought a motion to strike the plaintiff's Statement of Claim without leave to amend under Rule 21.01(1)(b) for disclosing no reasonable cause of action, or alternatively, to dismiss the action as an abuse of process under Rule 21.01(3)(d).

The plaintiff alleged harassment, threats, family division, damage to reputation, and malicious prosecution related to zoning contravention charges against his family members.

The court found that the alleged torts were not recognized in Ontario law or were improperly pleaded without sufficient material facts.

Furthermore, the claims against individual municipal employees failed due to statutory immunity under the Municipal Act, 2001, as bad faith was not adequately pleaded.

The court also determined the action constituted an improper collateral attack on concluded Planning Act proceedings against the plaintiff's family members, to which the plaintiff was a stranger.

Both branches of the motion were granted.

This endorsement concerns a costs award following the settlement of a motion to set aside a noting in default and a motion for default judgment.

The parties had resolved the substantive issues, leaving only costs for determination.

The plaintiff sought substantial indemnity costs of $11,961.05, arguing the defendants exhibited a "troubling pattern" of ignoring orders.

The defendants acknowledged some costs were due but disputed the plaintiff's characterization of their conduct and the quantum sought, arguing the plaintiff's response was unduly aggressive.

The court applied the principles from section 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, as well as the general principles for assessing costs from Apotex Inc. v. Eli Lilly Canada Inc. The court found the plaintiff's costs excessive, noting the plaintiff's aggressive pursuit of default judgment despite the self-represented defendants' prompt attempts to resolve the matter.

The court awarded the plaintiff $900 plus HST on a partial indemnity basis, finding this amount to be fair, reasonable, and proportionate.