Ivana Bozinovic

The appellant commenced an action in small claims court for breach of contract and subsequently filed a duplicative claim in superior court with additional claims.

The trial judge struck out the entire superior court action as frivolous, vexatious, and an abuse of process under Rule 2.1, finding that the appellant had not followed proper procedure to transfer the small claims action and was attempting to litigate the same matters in two courts simultaneously.

The Court of Appeal upheld the dismissal, finding no error in the trial judge's decision.

The plaintiff was successful in defending a Rule 21 motion brought by the defendant to strike the statement of claim.

The plaintiff sought costs of approximately $15,000 on a partial indemnity basis, while the defendant submitted that costs should be in the range of $3,500, consistent with two previous similar motions.

The court found the plaintiff's costs outline to be surprisingly high and noted that the defendant should not have to pay for the plaintiff's previous failures to properly plead the claim.

The court exercised its discretion under section 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure to award the plaintiff costs fixed at $3,500, allowing the defendant to set off $3,000 in unpaid costs owed from a previous motion.

The defendant university brought a motion under Rule 21 to strike the plaintiff's fresh as amended statement of claim without leave to amend.

The plaintiff, a former medical resident, sued the university for breach of contract and breach of fiduciary duty, alleging the residency program was substandard and failed to prepare him for his specialist licensing exams.

The court found that the plaintiff had adequately pleaded the nature and source of the contract, as well as the vulnerability and reliance necessary for a fiduciary duty claim.

The court held that the claim was novel but arguable, and dismissed the motion to strike.

The third parties brought a motion to dismiss the defendants' third party claim based on an indemnity contract, which was unsuccessful.

The defendants sought costs of $41,041.95, which included an $18,666.50 disbursement for an expert report.

The court found that the expert report played no role in the narrow motion argued and deferred its costs to the trial judge.

Applying the factors under Rule 57.01, the court fixed the defendants' costs for the motion at $15,000 inclusive of disbursements and HST, payable by the third parties.

Following a personal injury action arising from a fitness class accident, the defendants issued a third party claim against the program developer alleging negligent training of the instructor.

The third parties moved for summary judgment relying on a contractual indemnity clause requiring the fitness club to indemnify them for claims arising from activities at the facility.

The court held that indemnity for a party’s own negligence must be expressed in the clearest terms, and the clause relied upon did not meet that standard and was ambiguous.

The court also declined to consider an alternative argument limiting liability because it was not properly pleaded or supported by evidence in the motion record.