Jessica R. Hewlett

The plaintiff and defendant each brought motions to compel answers to undertakings and refusals from examinations for discovery in a construction contract dispute.

The court ordered the defendant to provide particulars of its damages claim, finding its previous answers insufficient.

The court dismissed the defendant's motion, finding the plaintiff had either answered the undertakings or made best efforts to locate the requested documents.

Costs of $5,000 were awarded to the plaintiff.

The plaintiff brought a motion in writing for default judgment on a liquidated amount arising from a loan and guarantee agreement.

Despite the lack of a factum and issues with the calculation of the contractual interest rate, the court was satisfied that the individual defendant had notice of the lawsuit.

The court granted default judgment for the principal balance of $54,711.74, along with pre-judgment interest at the statutory rate of 4.0 percent, and partial indemnity costs.

The plaintiff brought a motion for leave to amend its statement of claim and to compel answers to refusals from the defendant's examination for discovery in an action for repayment of disability benefits.

The defendant opposed the amendments, arguing they were barred by s. 36(3) of the Regulated Health Professions Act, 1991.

The court granted leave to amend, finding the amendments pleaded underlying facts rather than prohibited records.

The court also ordered the defendant to answer the refused questions regarding CPSO proceedings, financial records, and other litigation, with minor limitations.

The defendants brought a motion for leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding parties.

This endorsement concerns a motion by Chicago Title Insurance Company to continue an interim ex parte Mareva injunction related to mortgage fraud proceeds.

The court found a strong prima facie case and a significant risk of dissipation of funds, which remained unchallenged by the defendants.

The injunction was continued, and the motion adjourned for further proceedings.

The defendants by counterclaim, Robert Mammone and S.O.R.A. Real Estate & Insurance Ltd. o/a MIC Financial (the "Brokers"), moved for summary judgment to dismiss Mary Kosta-Cadas's counterclaim against them, arguing it was statute-barred by the applicable limitation period.

Mrs. Kosta-Cadas's claim was for contribution and indemnity in negligence, alleging the Brokers failed to ensure she understood and signed mortgage and renewal documents.

The central issue was the interpretation of section 18 of the Limitations Act, 2002, specifically whether the discoverability principle could cause the limitation period for an indemnity claim to start before the main action was served on the party seeking indemnity.

The court dismissed the Brokers' motion, holding that the limitation period for Mrs. Kosta-Cadas's indemnity claim commenced when she was served with the main action, not when she first became aware of potential issues with the mortgage.

The plaintiff moved for an order to extend the time to set the matter down for trial, which the defendants opposed, seeking dismissal for delay.

The action, arising from a business purchase, had been dormant for over five years.

The court dismissed the plaintiff's motion and the action, finding the plaintiff's explanations for delay (family deaths, wife's mental health, own mental health, financial strain, COVID-19 impact) unacceptable due to lack of cogent evidence and the plaintiff's apparent financial capacity and other business activities.

The court also found actual prejudice to the defendants due to faded witness memories and unavailable banking records, emphasizing the importance of respecting procedural timelines for timely access to justice.

Following a trial where the plaintiff successfully proved a construction lien and defeated the defendants' counterclaim, the court determined the costs and interest payable.

The plaintiff sought substantial indemnity costs of $225,504.45, while the defendants argued for $85,000.

The court awarded the plaintiff $175,000 in substantial indemnity costs, citing the defendants' unreasonable conduct, misleading evidence, and failure to accept multiple generous offers to settle.

The court also awarded prejudgment interest at the contractual rate of 25%.

The defendant brought a motion to compel the plaintiff to produce backup documents for all invoices delivered since 2017, prior to examinations for discovery.

The plaintiff sued for unpaid invoices, and the defendant counterclaimed for alleged overbilling on past invoices.

The court dismissed the motion, finding the request overbroad because it included invoices based on pre-approved prices rather than time and materials.

The court also found the request disproportionate under Rule 29.2.03, as the time and expense required to produce the documents outweighed the likely benefit, especially given the $50,000 value of the counterclaim.

The plaintiff contractor brought a construction lien action against the defendant homeowners for unpaid work and extras on a residential renovation project.

The defendants counterclaimed for damages, alleging the plaintiff abandoned the project and performed defective work.

The court found that the defendants wrongfully repudiated the contract without justification, as the alleged deficiencies did not meet the high threshold required for termination.

The plaintiff was awarded $19,113.80 for the balance of the contract price and approved extras, less credits for unfinished work, and the defendants' counterclaim was dismissed.

The plaintiff was successful on an appeal of an interlocutory order and sought costs.

The plaintiff requested partial indemnity costs for the original motion and substantial indemnity costs for the appeal, citing the defendants' aggressive threats against the plaintiff's counsel and procedural misconduct.

The court rejected the defendants' argument that no costs should be awarded.

Applying the principle that substantial indemnity costs are justified by reprehensible conduct, the court awarded the plaintiff its full requested costs of $11,856.33.

The plaintiff appealed an Associate Justice's order that set aside the noting in default of the defendants.

The court found that the Associate Justice erred in principle and made overriding errors of fact by misapprehending service issues and the defendants' persistent non-compliance with the Rules of Civil Procedure.

The appeal was granted, confirming that the defendants were properly noted in default, and allowing the plaintiff to proceed with a motion for default judgment.

The applicant mother sought interim child and spousal support, while the respondent father sought an order for the sale of the matrimonial home.

The court imputed the father's income at $300,000 and the mother's income at $100,000 for the purposes of interim support.

The father was ordered to pay the Table amount of child support for five children, continue paying educational expenses, and contribute a lump sum of $3,000 per month for other section 7 expenses.

The father's motion for the sale of the matrimonial home was adjourned sine die as the property was already the subject of parallel power of sale proceedings in civil court.

The defendants brought a motion to set aside their noting in default in an action for breach of a loan agreement.

The court found serious issues with the service of the statement of claim, noted the plaintiff's failure to seek an order for substituted service, and observed that the plaintiff precipitously noted the personal defendant in default shortly after indicating a willingness to consider an indulgence.

Applying the test from Intact v Kisel, the court exercised its discretion to set aside the noting in default and granted the defendants leave to deliver a statement of defence.

The plaintiff obtained an ex parte Certificate of Pending Litigation (CPL) against a property that had been transferred from the defendant's ex-husband to the defendant as part of a separation agreement.

The defendant moved to discharge the CPL, arguing the plaintiff failed to make full and fair disclosure of material facts, including a prior settlement and release, and the circumstances surrounding a previous motion to renew a writ of execution.

The court found the plaintiff breached the duty of full and fair disclosure under Rule 39.01(6) of the Rules of Civil Procedure and discharged the CPL, emphasizing the exceptional duty on parties seeking ex parte relief.

The appellants appealed a motion judge's damages assessment following a failed real estate transaction.

The motion judge awarded DHMK Properties Inc. damages based on the difference between the agreed purchase price ($5.3 million) and the property's market value in August 2014 ($4.27 million), without accounting for the vendor's warranty obligations regarding net income or providing reasons for the valuation date selection.

The Court of Appeal found two critical errors: the failure to consider the effect of the vendor's warranty on damages calculation, and the unexplained selection of August 2014 as the valuation date rather than the scheduled closing date.

The court set aside the judgment and remitted the damages assessment to the Superior Court.

The applicant, DHMK Properties Inc., sought summary judgment for damages following the respondents' (2296608 Ontario Inc. and Mund Real Estate Group Inc.) repudiation of a real estate purchase agreement.

The respondents had refused to close a $5.3 million transaction and subsequently sued for specific performance with an abatement, which was dismissed.

DHMK claimed $930,000 in damages, representing the difference between the contract price and the property's market value, less the forfeited deposit.

The respondents argued DHMK failed to mitigate by refusing a post-judgment offer to complete the original contract and that the damages calculation was flawed by ignoring a warranty regarding net operating income.

The court granted summary judgment to DHMK for $930,000, affirming the standard measure of damages for breach of a land sale contract and rejecting the respondents' mitigation and damages calculation arguments.

The applicant, an 81-year-old widow, brought an urgent motion for a Mareva injunction and a Norwich order against the respondent, who had acted as a bookkeeper for the applicant's late husband.

The applicant alleged that the respondent fraudulently transferred $235,567.90 from a joint bank account to her own accounts.

The court granted an interim freezing order over the respondent's bank accounts, finding a strong prima facie case of fraud and a serious risk of dissipation.

The court also granted a Norwich order requiring the bank to disclose the respondent's account information to assist in tracing the funds.