Jeff G. Saikaley

The defendants in two separate defamation actions brought a motion to consolidate the actions and to compel the plaintiffs to serve a further and better affidavit of documents.

The actions arose from a report published by the defendants alleging the plaintiffs had ties to terrorist organizations.

The court declined to consolidate the actions into one, noting they were already set for trial, but ordered that they be heard together or consecutively.

The court also ordered the plaintiffs to produce certain requested documents relevant to the defence of justification, while denying the request for other documents deemed irrelevant or part of a fishing expedition.

Jim McMurtry, a defendant/plaintiff by counterclaim, brought a motion for an order addressing an additional financial review of Mic Mac Realty (Ottawa) Ltd. The parties agreed on the firm (Welch LLP) and that the review should cover 2012 forward, but disagreed on whether to include the 1999-2006 fiscal years.

Jim argued for the earlier period due to findings of a constructive trust, while John and Brenda McMurtry opposed it based on cost-benefit and document availability concerns.

The court, applying proportionality principles under Rule 1.04, ordered Welch LLP to conduct a review for both the 1999-2006 and 2012-forward periods, initially with limited documentation for the earlier period.

The court also ordered the joint retention of an expert for a valuation of Mic Mac shares.

The court rendered a decision on costs following a six-week jury trial.

The plaintiff, Frank D’Addario, was wholly unsuccessful in his claim for malicious prosecution against Betty Smith and Chris Napior.

Betty Smith's counterclaim for sexual assault was dismissed, while Chris Napior was awarded $25,000 in damages for defamation against Frank and Ferne D’Addario.

The court considered the results obtained at trial, abandoned claims, and Rule 49 offers to settle.

It awarded Betty Smith and Chris Napior $75,000 plus HST for defending abandoned claims, $5,000 plus HST for a pre-trial motion, and Chris Napior an additional $55,000 plus HST and $4,000 in disbursements for his successful defamation claim, after finding elements of over-lawyering and excessive billing in the initial costs submission.

Following a decision on share ownership, the court held a trial management conference to determine next steps in the consolidated actions, which include an oppression remedy claim.

The court directed the parties to consider whether a stay motion will be brought pending an appeal of the initial decision, how to efficiently gather and present extensive financial evidence, and the potential for a mid-trial settlement conference.

The conference was adjourned to allow counsel to obtain instructions.

Mildred McMurtry sought a declaration of ownership for 10 shares in Mic Mac Realty (Ottawa) Ltd. (MMR), alleging they were part of her late husband's estate, of which she was the residuary beneficiary.

Her son, John McMurtry, claimed the shares were a gift from his father or completed by him as an executor.

The court found no completed gift and that the shares remained part of the estate.

However, Mildred's claim for ownership was barred by the equitable doctrines of laches and estoppel due to her delay and acquiescence, and a constructive trust was imposed, holding the shares for John's benefit.

The court also addressed the nature of declaratory relief and limitation periods.

The plaintiff, The Roman Catholic Episcopal Corporation of Ottawa (RCECO), sued the defendant insurer, l’Assurance mutuelle de l’inter-ouest (Mutuelle), for confirmation of insurance coverage for sexual abuse claims.

Initially, RCECO sought coverage for eight pre-1976 claims, which were later found to be uncovered as Mutuelle was not licensed for public liability insurance before that period.

RCECO subsequently amended its claim to include four additional claims, three of which Mutuelle recognized.

Mutuelle brought a motion for summary judgment, but the parties settled, resulting in nine claims being dismissed and three recognized.

The sole remaining issue was costs.

Mutuelle sought partial indemnity costs, arguing greater success, while RCECO sought substantial indemnity costs, citing Mutuelle's unreasonable conduct in failing to respond to coverage inquiries.

The court acknowledged Mutuelle's greater success in dismissing claims but also noted its unreasonable conduct.

Ultimately, the court declined to award costs to either party, finding RCECO's claimed costs excessive for a settled summary judgment motion.

Following dismissal of preliminary motions seeking leave to amend pleadings and adjourn trial, the court was required to fix the quantum of costs previously awarded on a substantial indemnity basis.

The moving parties argued that costs should instead be assessed on a partial indemnity basis and that costs for an earlier adjournment appearance before another judge should be included.

The court held that the scale of costs could not be reconsidered absent an appeal and that costs related to the earlier appearance remained to be determined later.

The court fixed substantial indemnity costs payable to the responding parties for preparation and attendance on the motions.

Payment was ordered within 30 days pursuant to rule 57.03(1) of the Rules of Civil Procedure.

The defendants in a defamation action brought under the simplified procedure moved for an order extending the time for oral examination for discovery from two hours to 21 hours, and for a further and better affidavit of documents.

The court partially granted the request for further documentary production, ordering the plaintiff to produce documents relating to its relationship with CAIR and certain individuals, as these were relevant to the defendants' detailed plea of justification.

However, the court dismissed the request to extend the oral discovery time, finding no jurisdiction or justification to depart from the strict two-hour limit mandated by Rule 76.

The defendants brought a motion for non-suit to dismiss the plaintiff's malicious prosecution claim and to withdraw the defence of qualified privilege from the jury regarding a defamation counterclaim.

The court granted the motion for non-suit, finding no evidence that the defendants initiated the criminal proceedings, as the police exercised independent discretion in laying sexual assault charges.

The court also withdrew the defence of qualified privilege, ruling that statements made by the plaintiffs by counterclaim to a priest did not occur on a recognized occasion of qualified privilege, as there was no reciprocal duty or interest.

The defendants brought a motion for non-suit to dismiss the plaintiff's malicious prosecution claim and to withdraw the defence of qualified privilege from the jury regarding the plaintiff's defamation counterclaim.

The court granted the non-suit, finding no evidence that the defendants initiated the criminal proceedings, as the police exercised independent discretion.

The court also withdrew the defence of qualified privilege, ruling that statements made by the plaintiffs to a priest were not made on an occasion of qualified privilege.

During a consolidated family corporate dispute involving multiple related actions and a counterclaim, the moving parties sought leave at the outset of trial to amend their pleadings and requested an adjournment of the trials.

The proposed amendments largely consisted of legal arguments relating to whether the plaintiff’s oppression remedy claim should instead proceed as a derivative action under the Business Corporations Act.

The court held that the motion lacked evidentiary support, was brought far too late in a case‑managed proceeding, and raised arguments that did not require pleading amendments.

The court also refused the requested adjournment, finding the moving parties had failed to pursue procedural remedies earlier regarding outstanding undertakings and trial scheduling concerns.

All motions were dismissed and substantial indemnity costs were awarded to the responding parties.

This was a costs endorsement following the plaintiff's success on a motion resisting a stay for lack of jurisdiction and forum non conveniens.

The court held that the plaintiff had made a Rule 49 offer that was essentially matched by the result obtained and was therefore entitled to partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

The defendants did not challenge counsel's hourly rate or the application of Rule 49, but argued fewer hours had been spent.

The court found the hours claimed reasonable under the Rule 57 factors and awarded $16,000 inclusive of HST and disbursements.

The court determined costs following three motions involving the release of real estate trust funds, summary judgment against one party, and the appointment of an interim receiver/manager.

Success on the trust fund release motion was divided and no costs were ordered.

The summary judgment motion and the motion for appointment of an interim receiver were both dismissed, resulting in clear success for the responding parties.

Applying the principles governing costs and Rule 57.01 of the Rules of Civil Procedure, the court fixed costs of $15,000 for each successful party.

The court also directed reimbursement from trust funds for municipal tax arrears previously paid.

The parties, members of the same family, were involved in a dispute over the ownership and management of a family real estate holding company.

One brother moved for the appointment of an interlocutory receiver to oversee the company, while the other brother moved for summary judgment dismissing their mother's claim regarding her share ownership, and for the disbursement of funds held in trust.

The court dismissed the motion for a receiver, finding no evidence of irreparable harm and noting the company's substantial value.

The court also dismissed the summary judgment motion, concluding that the conflicting evidence regarding share transfers required a trial.

The motion to disburse trust funds was dismissed, though the court ordered that municipal tax arrears be paid directly from the funds.

Following dismissal of a motion for an interim injunction in a defamation action arising from YouTube videos, the successful defendants sought full indemnity costs exceeding $17,000.

The court considered Rule 57.01 factors, the parties’ settlement offers under Rule 49, and whether the time claimed by counsel was excessive.

The court declined to award full indemnity costs but held that the defendants were entitled to partial indemnity costs up to January 25, 2013 and substantial indemnity costs thereafter because their offer to settle was better than the result obtained by the moving party.

The court also refused to refer the matter to assessment and declined to award costs for a self‑represented appearance lacking evidence of opportunity cost.

Costs were fixed at $10,500 inclusive.

The plaintiff, a municipal official, moved for an interlocutory injunction to force the defendants to remove YouTube videos and comments that he alleged were defamatory.

The defendants had posted videos criticizing the plaintiff's handling of their building permit and site plan requirements for a new business location.

The court dismissed the motion, finding that the plaintiff failed to meet the high threshold for an injunction in defamation cases, which requires showing that the words are so manifestly defamatory that a contrary jury verdict would be perverse.

The court also found that the plaintiff failed to establish irreparable harm, as any potential harm could be adequately compensated by damages.

The appellant tenant appealed a summary judgment decision that found it had not validly exercised its lease renewal option.

The motion judge concluded that the parties' conduct did not amount to a waiver of the notice requirement and that post-deadline negotiations were for a new lease, not a renewal.

The Court of Appeal upheld the decision, finding the record supported the motion judge's conclusions and that the landlord did not act in bad faith by considering other tenant options.

The appeal was dismissed with costs.

The defendants sought summary judgment dismissing an action by a commercial tenant alleging that the landlord waived a lease provision requiring written notice to exercise a renewal option.

The tenant conceded that it failed to deliver written notice within the contractual deadline but argued that continued negotiations constituted waiver or estoppel.

The court held that negotiations regarding a possible new lease did not amount to a clear, explicit, and unequivocal exercise of the renewal option and did not establish waiver by the landlord.

The court further held that there was no independent tort duty requiring the landlord’s leasing agent to negotiate reasonably or in good faith.

Finding the matter entirely document-driven with no genuine issue requiring trial, the court granted summary judgment and dismissed the action.

The respondent, an Ontario police constable, travelled to New York City after September 11, 2001, to assist with search and rescue efforts.

The appellant newspaper published articles alleging he misrepresented himself to authorities and interfered with rescue operations.

The respondent sued for defamation.

At trial, the appellants pleaded qualified privilege but not the English defence of responsible journalism.

The jury found for the respondent.

The Court of Appeal recognized a new responsible journalism defence but denied the appellants its protection because they had not pleaded it at trial.

The Supreme Court of Canada allowed the appeal and ordered a new trial, holding that the appellants should have the opportunity to avail themselves of the newly recognized defence of responsible communication on matters of public interest.

The defendant, Robert Grenier, sought leave to appeal to the Divisional Court from an order setting aside a default judgment but imposing strict conditions and awarding costs to the insurer, Aviva.

The default judgment was entered after Grenier failed to defend an action arising from a 2001 motor vehicle accident.

The motion judge set aside the default judgment but imposed conditions restricting Grenier's ability to deal with his assets in Quebec and ordered him to pay costs thrown away.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's discretionary decision.