James F. Diamond

Following a previous endorsement, the parties participated in a case conference to schedule the trial of an issue regarding whether they engaged in a course of conduct to vary the terms of a subcontract for extra work.

The court ordered the parties to file a Joint Supplementary Brief of Evidence by April 11, 2016.

A full-day hearing was scheduled for May 11, 2016, in the event cross-examinations and further legal argument are necessary.

The plaintiff sued her employer, CIBC, and the plan administrator, Great-West Life, for long-term disability benefits, funding for treatment plans, and damages for mental distress and punitive damages.

CIBC brought a motion for summary judgment to dismiss the claims against it.

The court found that CIBC did not breach its duty of good faith in refusing to fund the proposed treatment plans, as its decision was based on proper principles and supported by medical opinions.

The court also found no bad faith in CIBC withholding one month of benefits due to the plaintiff's failure to provide advance notice of out-of-province travel.

The motion for summary judgment was granted and the claims against CIBC were dismissed.

The plaintiff moved mid-trial for leave to amend a statement of claim arising from a disputed life insurance policy allegedly designed to provide inflation protection.

The court held that, although the timing of the motion did not create non-compensable prejudice, most proposed amendments were legally untenable.

Allegations that the insurer breached a duty of good faith by failing to disclose an alleged policy error before any claim was made, by failing to disclose documents at the application stage, and by advancing a full merits defence could not sustain independent causes of action.

Leave was granted only for unopposed amendments, and the request to increase punitive damages from $1,000,000 to $5,000,000 was denied.

The plaintiff was injured in a motor vehicle accident and received Income Replacement Benefits (IRBs) from her insurer until they were terminated in 2003.

She commenced an action against the insurer for other benefits in 2005, but did not claim IRBs.

In 2007, she commenced a new action against the insurer for IRBs and against her former lawyer for negligence.

The insurer brought a motion for summary judgment to dismiss the IRB claim as statute-barred.

The court granted the motion, finding that the insurer's 2003 notice of termination was clear and unequivocal, triggering the two-year limitation period, which had long expired.

The plaintiff, acting as receiver for a masonry subcontractor, brought a motion for summary judgment against the defendant general contractor for $100,701.83 in unpaid invoices and holdbacks.

The defendant argued the extra work was unauthorized and claimed set-offs for back charges and alleged deficiencies (efflorescence).

The court dismissed the set-off defences, finding no evidence of required prior notice for the back charges and no evidence that the remedial work for the efflorescence was necessary.

However, the court ordered a mini-trial to determine whether the parties' course of conduct varied the strict contractual requirement for written authorization of extra work.

The parties appeared at a case conference to settle a draft Order arising from previous Reasons for Decision.

The plaintiff advised the court of its intention to discontinue the proceeding and make a voluntary assignment into bankruptcy.

The draft Order, including costs, was settled and signed by the court.

The plaintiff's former lawyers brought a motion for leave to appeal a Master's order requiring them to personally pay costs thrown away and motion costs.

The costs were awarded after a law clerk inadvertently failed to book an examination for discovery.

The Superior Court granted leave to appeal, finding that the Master failed to apply the second step of the Galganov test, which requires extreme caution before ordering costs against a lawyer personally for an innocent error.

Intact Insurance Company appealed an arbitrator's decision in a priority dispute over statutory accident benefits.

The claimant was injured in a vehicle driven by his father, whose insurance policy with Intact had been cancelled for non-payment prior to the accident.

The father was subsequently convicted of operating a motor vehicle without insurance.

The arbitrator ruled that Federated Insurance Company could relitigate the father's uninsured status, finding the abuse of process doctrine did not apply.

On appeal, the Superior Court of Justice overturned the arbitrator's decision, holding that under s. 22.1 of the Evidence Act, the conviction was proof of the offence absent evidence to the contrary, which Federated failed to provide.

The court found the arbitrator erred in law by misapplying the abuse of process doctrine and its exceptions.

The defendants requested an adjournment of an upcoming trial after their previous counsel was removed from the record for non-payment of a retainer.

One defendant also sought leave under Rule 48.04(1) to bring a summary judgment motion based on a limitation period defence.

The court dismissed the request for leave, noting the limitation defence had been pleaded from the outset and the matter was already set for trial.

The court also dismissed the adjournment request, drawing an adverse inference from the defendants' failure to file evidence of prejudice, and ordered the trial to proceed as scheduled.

The defendant Attorney General of Ontario brought a motion to strike the plaintiff's Fresh as Amended Statement of Claim.

The plaintiff, who was previously acquitted of fraud charges, sued for malicious prosecution and Charter breaches.

The court found the claim was replete with unnecessary assumptions and failed to plead material facts supporting the absence of reasonable and probable cause and the presence of malice.

The motion to strike was granted, but the plaintiff was given 90 days leave to amend the claim.

The plaintiff landlord brought a motion for summary judgment against a commercial tenant and its indemnifiers for damages arising from a breached lease.

The tenant failed to complete fixturing or pay rent, prompting the landlord to terminate the lease.

One indemnifier opposed the motion, arguing lack of consideration, defective notice, non est factum, and lack of independent legal advice.

The court applied the summary judgment framework and found no genuine issues requiring a trial, holding that the indemnifier received consideration and the landlord's notice of termination properly preserved its right to claim future damages.

Partial summary judgment was granted for arrears and future losses up to a specified date, with costs awarded to the plaintiff.

At a case conference, the court noted that the self-represented plaintiff had commenced three separate actions with overlapping defendants and identical material facts, potentially constituting an abuse of process.

To avoid a multiplicity of proceedings, the court ordered the plaintiff to deliver a single Fresh as Amended Statement of Claim consolidating all allegations and defendants into one pleading, and set a timetable for the defendants to respond or bring motions to strike.

Following a consent order terminating a residential lease and enforcing compliance with condominium rules regarding smoking, the court determined the costs of the application.

The condominium corporation sought costs against both the unit owner and the tenants.

The court found that the unit owner had taken all reasonable steps to ensure tenant compliance under s. 119(2) of the Condominium Act, 1998, and ordered no costs between the corporation and the owner.

The tenants, who caused the smoking complaints, were ordered to pay $10,000 in partial indemnity costs to both the condominium corporation and the unit owner.

Following the dismissal of a civil action on summary judgment, the successful defendant sought costs on a partial indemnity basis.

The court considered the defendant’s bill of costs, the conduct of the plaintiff during the litigation, and the principles governing costs under Rule 57.01 of the Rules of Civil Procedure.

The plaintiff challenged the fairness of the earlier decision and disputed the hours billed by defence counsel.

The court held that costs generally follow the event and that the rates and hours claimed were largely reasonable.

Costs of the action, including the summary judgment motion, were fixed at an all-inclusive amount of $30,000.

Following a prior summary judgment finding liability for fraud and breach of fiduciary duty, the plaintiff requested that the court address punitive damages that had been omitted from the earlier endorsement.

Relying on Rule 59.06(1) of the Rules of Civil Procedure, the court amended the order to address the outstanding issue.

The court held that the defendant’s fraudulent misappropriation of funds from a charitable organization constituted malicious and high‑handed conduct warranting punitive damages.

Punitive damages of $50,000 were awarded, and costs of the action and motion were fixed at $150,000 pursuant to the parties’ agreement.

The court deferred its decision on whether to further extend an existing Mareva injunction pending submissions from the defendant.

The defendant municipality brought a motion for summary judgment dismissing the plaintiff’s negligence action arising from a motor vehicle accident, arguing the claim was commenced outside the two‑year limitation period under the Limitations Act, 2002.

The plaintiff argued the claim against the municipality was not discoverable until receipt of a police accident report revealing potential roadway maintenance issues and identifying the proper municipal authority.

The court held the plaintiff failed to rebut the statutory presumption of discoverability and did not exercise reasonable diligence in identifying potential defendants, noting a 17‑month delay in obtaining the accident report.

The action was therefore statute‑barred.

The court also found that commencing a second action rather than seeking to amend the existing action to substitute the proper municipality constituted an abuse of process.

A long‑term employee brought a motion for summary judgment in a wrongful dismissal action after nearly 39 years of service.

The court determined the employee’s position at termination remained a middle‑management role despite internal restructuring.

Applying the Bardal factors, including the employee’s age, lengthy service, and managerial character of employment, the court fixed the reasonable notice period at 24 months.

The employer failed to establish that the employee had not made reasonable mitigation efforts.

However, the court held the employee was not entitled to further incentive payments under the employer’s short‑term incentive plan because the plan required active employment at the payout date.

Following a prior trial decision and endorsement directing the parties to finalize draft orders expeditiously, counsel for the applicants forwarded draft orders to opposing counsel for approval as to form and content.

No response was received from counsel for the opposing party despite the court’s direction.

After reviewing the draft orders prepared by the applicants’ counsel, the court made a minor revision and signed both orders.

The signed orders were directed to be circulated to counsel together with the endorsement.

At a case conference involving three related civil actions with overlapping pleadings and defendants, the court addressed procedural disorganization arising from the commencement of multiple actions rather than amendment of an existing claim.

The court noted significant factual overlap between the claims and anticipated that consolidation or a fresh amended statement of claim might ultimately be required.

As case management judge, the court imposed directions governing future motions, service of materials, and communication between the self-represented plaintiff and defence counsel.

The court also scheduled a further case conference and authorized service by email on specific defendants.

A charitable organization brought a motion for summary judgment alleging fraud and breach of fiduciary duty by a founding director who managed its day‑to‑day operations.

The evidence showed a scheme involving fabricated invoices, unauthorized expense reimbursements, and payments to related parties and vendors for personal benefit.

Applying the summary judgment framework articulated in Hryniak v. Mauldin, the court found there was no genuine issue requiring a trial and that the evidentiary record permitted a fair determination.

The defendant’s admissions and documentary evidence demonstrated extensive misappropriation of funds through multiple categories of false expenses.

The court granted summary judgment and ordered repayment of $697,237 plus pre‑judgment interest.