J.F. Lalonde

The appellant appealed an order declaring her a vexatious litigant under s. 140 of the Courts of Justice Act, which also discontinued her action against the respondents and prohibited further proceedings without leave.

The Court of Appeal reviewed the appellant's history of multiple, unsupported, and vexatious proceedings stemming from a rental dispute, including fraudulent affidavits, numerous appeals of procedural orders, and incredible claims.

The court found ample evidence that the appellant conducted proceedings in a vexatious manner and for improper purposes, upholding the application judge's decision.

The appeal was dismissed with costs.

The appellant appealed an order varying a default judgment to include a declaration that the judgment debt survives his bankruptcy under s. 178(1)(d) of the Bankruptcy and Insolvency Act.

The appellant argued the motion judge erred by admitting fresh evidence and finding the pleadings sufficiently particularized a claim for misappropriation while acting in a fiduciary capacity.

The Court of Appeal dismissed the appeal, holding that fresh evidence is admissible on a Rule 59.06(2) motion to vary, and the pleadings were sufficient to ground the claim.

This decision addresses whether legal costs incurred to obtain a declaration that a debt survives bankruptcy under section 178(1)(d) of the Bankruptcy and Insolvency Act (BIA) also survive the bankrupt's discharge.

The plaintiff had previously obtained a ruling that its debt against a defendant survived his bankruptcy.

The parties agreed on the quantum of costs ($50,000) for that prior motion, but disputed whether these costs were also non-dischargeable.

The plaintiff argued that the costs were an intrinsic consequence of the judgment.

The defendants contended that these were post-bankruptcy debts, separate from the original debt, and did not fall under BIA exceptions.

The court, distinguishing the case from those where bankruptcy had not yet occurred, held that it would be inequitable for the underlying debt to survive bankruptcy while the costs necessary to secure that declaration did not.

The court found the costs to be an intrinsic aspect of the judgment and therefore ordered that they also survive the bankrupt's discharge.

No costs were awarded for the present costs motion.

This is a costs endorsement following a successful appeal by 2651171 Ontario Inc. The Court of Appeal for Ontario determined the quantum of costs for the motions for summary judgment and the action.

The appellant sought substantial indemnity costs based on an offer to settle made under Rule 49.10(1).

The respondent, Patrick Brey, objected to the quantum and argued for a reduction due to the appellant's unproven allegations of fraud.

The court found the appellant prima facie entitled to substantial indemnity costs due to the offer to settle, but ordered a reduction in the total amount awarded due to the unfounded allegations of fraudulent misrepresentation made by the appellant, emphasizing that such serious allegations require strict pleading and proof.

This appeal concerned the interpretation of a real estate agreement's requisition deadline for off-title objections, specifically regarding the lawful use of a property described as a fourplex.

The appellant buyer raised timely objections about the property's legal use, which the respondent seller refused to address, leading to the transaction's failure.

The motion judge had erred by misinterpreting the deadline provision, deeming the objections untimely.

The Court of Appeal found the objections were timely and valid, as the property's lawful use as a fourplex could not be confirmed.

The appeal was allowed, the lower court's judgment set aside, and the appellant was granted the return of its deposit and damages.

The moving party sought to schedule a motion for contempt against the responding party, alleging non-compliance with a stay certificate issued in a landlord and tenant appeal.

The responding party requested the motion be dismissed under Rule 2.1.02 of the Rules of Civil Procedure.

The court found the contempt motion to be frivolous, vexatious, and an abuse of process, noting the moving party had already commenced a civil action raising similar issues and had vacated the unit over two years prior.

The motion for contempt was dismissed.

The defendants brought a motion to amend their statement of defence in an action concerning the removal of a boundary tree during construction.

The self-represented plaintiff opposed the amendments, arguing they constituted a withdrawal of admissions regarding the tree's location, would cause non-compensable prejudice due to an expired limitation period, and included untenable defences.

The court allowed most of the amendments, finding the original statements about the tree's location were mis-pleadings rather than intentional admissions, and that the plaintiff would not suffer non-compensable prejudice.

However, the court refused leave to add paragraphs alleging defamation and bad faith, finding them vexatious and lacking sufficient particulars.

The employer appealed a decision finding its employment contract's termination clause void for breaching the Employment Standards Act, 2000.

The application judge had awarded the employee ten months' common law notice.

The Divisional Court dismissed the appeal, upholding the finding that the 'for cause' provision illegally contracted out of the ESA by applying a common law 'just cause' standard rather than the statutory 'wilful misconduct' standard.

The Court also found no error in the application judge's assessment of the ten-month notice period, which appropriately considered the Bardal factors and the economic uncertainty at the onset of the COVID-19 pandemic.

The defendant brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss a defamation action brought by the plaintiffs, a home renovation contractor and his wife.

The action arose from a Reddit post by the defendant calling the plaintiffs 'fraudsters' and 'scammers' after a contract dispute.

The court found the expression related to a matter of public interest.

Although the defamation claim had substantial merit, the plaintiffs failed to show they suffered any financial harm, as their YouTube business was thriving and their renovation business had closed before the post.

The court concluded the public interest in protecting the defendant's expression outweighed the public interest in allowing the proceeding to continue, and dismissed the action.

The plaintiff brought a cross-motion to declare that a default judgment debt owed by the defendant, a corporate director, survived his bankruptcy under s. 178(1)(d) of the Bankruptcy and Insolvency Act.

The defendant had breached the trust provisions of the Construction Lien Act by allowing construction financing funds to be used for non-project purposes.

The court found that the defendant, as a fiduciary, misappropriated trust funds through willful blindness and failure to oversee the corporation's finances.

The court declared that the judgment debt of $181,133.23 plus costs survived the bankruptcy.

The moving party sought to schedule a motion for contempt against her former landlord, alleging he breached a 2019 stay certificate.

The responding party requested the motion be dismissed under Rule 2.1.02 as frivolous, vexatious, or an abuse of process, noting the moving party had vacated the unit over two years prior and had commenced a civil action raising the same issues.

The court stayed the motion and directed the registrar to issue a notice under Rule 2.1.01, giving the moving party an opportunity to provide written submissions explaining why the motion should not be dismissed.

Following a successful application for wrongful dismissal where the applicant was awarded ten months' notice, the parties could not agree on costs.

The applicant sought $74,524.59 on a substantial indemnity basis, while the respondent argued for partial indemnity costs of approximately $30,000.

The court found that neither party's offers to settle triggered Rule 49.10 and that substantial indemnity costs were not warranted.

The court awarded the applicant costs on a partial indemnity basis for the application, a motion to amend, and an abandoned motion to compel, fixing the total all-inclusive costs at $47,000.

Following the dismissal of the defendants' motion for summary judgment in a simplified procedure action regarding the destruction of a tree, the self-represented plaintiff sought costs.

The defendants argued she was not entitled to costs as a federal public servant who allegedly suffered no lost income.

The court applied the principles from Fong v. Chan and Benarroch, finding the plaintiff performed work ordinarily done by a lawyer and incurred an opportunity cost by using vacation time.

The court awarded the plaintiff $5,000 in costs, representing a reasonable allowance for her time and effort.

The applicant, a 36-year-old controller with six years of service, was terminated without cause.

The employer paid her statutory entitlements under the Employment Standards Act (ESA) and relied on the termination clause in her employment contract to deny common law notice.

The applicant brought an application arguing the termination clause was void.

The court found that the 'for cause' provision violated the ESA by allowing termination without notice for common law cause, which is a lower standard than the ESA's 'willful misconduct' standard.

Applying Waksdale, the court held that this rendered the entire termination clause void.

The court also found the 'without cause' provision independently violated the ESA by excluding benefits and bonuses during the notice period.

The court awarded the applicant 10 months of common law notice, less mitigation earnings and statutory amounts already paid.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action concerning the destruction of a large maple tree on a shared property line during their land development.

The plaintiff alleged intentional destruction, negligence (breach of duty of care arising from site plan agreement and by-laws), trespass, and nuisance.

The court dismissed the defendants' motion, finding that they failed to meet their evidentiary burden to demonstrate no genuine issue requiring a trial.

The court emphasized the inappropriateness of summary judgment in this simplified procedure action given the conflicting evidence, the lack of examinations for discovery, and the risk of inconsistent findings if the matter were to proceed to a summary trial.

This was a pleadings motion in a wrongful dismissal and libel action where the defendant, Yves Besner, sought to strike portions of the plaintiff's reply.

The defendant argued that the impugned paragraphs, which introduced details about the plaintiff's prior employment with Besner's former company and its bankruptcy, were irrelevant, unresponsive to the statement of defence, and contravened Rules 25.11 and 25.08 of the Rules of Civil Procedure.

The court found that the allegations were indeed irrelevant to the claims, not responsive to the defence, and improperly attempted to raise new grounds of claim in a reply rather than through an amendment to the statement of claim as required by Rule 25.06(5).

The court also noted that allowing such pleadings would unnecessarily expand the scope and cost of litigation and found them to be scandalous.

The motion to strike was granted.

The plaintiff, 2651171 Ontario Ltd. ("265"), sued the defendant Patrick Brey ("Brey") and listing agent Grapevine Realty for breach of contract and negligent misrepresentation after a real estate purchase agreement for a fourplex failed to close.

Brey counterclaimed for damages and cross-claimed against Grapevine, also initiating a third-party claim against his agent, Ryan Rogers.

Both 265 and Brey brought duelling motions for summary judgment. 265 sought the return of its $25,000 deposit and costs, and dismissal of Brey's counterclaim.

Brey sought to keep the deposit and damages.

The court dismissed 265's claims, finding that its objection regarding the property's lawful use as a fourplex was not raised within the contractual deadline and did not go to the root of title.

The court also found that 265's claim for fraudulent misrepresentation was not properly pleaded.

Brey's motion for summary judgment and his counterclaim were granted.

Brey was awarded damages for direct loss on the sale and related expenses, including legal fees and interest on lost investment income, totaling $52,216.65, with the $25,000 deposit applied towards these damages.

A long-serving McDonald's restaurant manager was constructively dismissed when offered a demotion to first assistant with meaningfully inferior benefits or termination.

The trial judge awarded damages based on a 20-month notice period (inclusive of statutory entitlements) representing approximately 20 years of service, accounting for a service credit letter.

The Court of Appeal upheld the decision, finding constructive dismissal, no failure to mitigate by refusing the demotion, and proper calculation of the notice period.

The court clarified that employment income earned during the statutory entitlement period is not deductible as mitigation, and that supplementary employment income that could have been earned concurrently with the original employment is also not deductible.

Following the settlement of an action to recover a loan used to purchase property, the plaintiff sought partial indemnity costs.

The action settled on the eve of trial for $125,000 plus costs.

The court found the plaintiff's counsel's hourly rates and time spent were reasonable, noting the defendant's lack of cooperation and the need for various procedural steps.

The court fixed the plaintiff's partial indemnity costs at $30,000 for fees plus $8,646 for disbursements.

The defendant brought a motion to strike out the plaintiff's jury notice, arguing it was served after the close of pleadings.

The plaintiff had amended her statement of claim multiple times, adding claims for defamation, breach of contract, and bad faith, and significantly increasing the damages sought.

The court found that the substantial amendments fundamentally altered the nature of the claim, meaning the pleadings were not closed when the jury notice was served.

The motion to strike the jury notice was dismissed.