J. Markin

The plaintiff brought a motion for summary judgment seeking dismissal of the defendant’s counterclaim relating to the enforceability of a commercial lease for premises in Mississauga.

The plaintiff argued the counterclaim was barred by the two-year limitation period.

Applying the Supreme Court of Canada’s guidance on summary judgment in Hryniak v. Mauldin and subsequent appellate interpretation, the court held that granting partial summary judgment would risk inconsistent findings and would not resolve the litigation as a whole.

The court concluded that the matter should proceed to trial on a full record, particularly given potential discoverability issues affecting the limitations defence.

The motion for summary judgment was dismissed.

The defendant lawyer brought a motion to strike a statement of claim alleging negligence and breach of contract arising from representation of the plaintiff in a criminal trial that resulted in convictions.

The plaintiffs alleged that but for trial counsel’s negligent conduct they would have obtained an acquittal.

The court held that allegations of ineffective assistance of counsel must be addressed through the criminal appeal process rather than through a collateral civil proceeding challenging the validity of the conviction.

Because the plaintiff’s appeal had already been dismissed and the ineffective assistance ground abandoned, allowing the civil claim would constitute an impermissible collateral attack and abuse of process.

The statement of claim was therefore struck without leave to amend.

The plaintiffs brought a motion to set aside an order dismissing their action for delay.

The court found that while the plaintiffs had repeatedly delayed prosecuting their claims, they provided a reasonable explanation involving issues with their legal representation, health difficulties, and family deaths.

Finding no evidence of actual prejudice to the defendants and noting that discoveries were complete, the court granted the motion on the condition that the plaintiffs first pay a previously ordered costs award of $5,000.

The plaintiff brought an undefended civil action alleging assault, identity theft, misappropriation of funds, interference with conjugal relations, and intentional infliction of emotional harm.

The defendants had been noted in default, requiring the court to assess deemed admissions under Rule 19 of the Rules of Civil Procedure and determine whether the admitted facts established valid causes of action.

The court found that only the administration of drugs without consent constituted the tort of battery, while other allegations lacked sufficient particulars or legal basis.

The plaintiff’s credibility was found to be weak and his evidence largely unsupported.

The court awarded nominal damages of $5,000 for battery and $1,500 in costs.