F.L. Myers

The moving defendants sought use of the Rule 2.1 summary dismissal mechanism to stay, pending dismissal, a self-represented plaintiff's motion for interim and interlocutory relief.

The court held that Rule 2.1 is not intended for close calls and should not be used where the underlying challenge to the main claim was already proceeding by a full Rule 21 motion.

Because the notice of motion sought interim relief and document production, and it was not obvious on its face that the proceeding was frivolous, vexatious, or an abuse of process, the requested direction to the registrar was refused.

This was a costs decision following a summary judgment motion in an insurance consent dispute arising from a motor vehicle accident.

Although the moving defendant ultimately succeeded on the underlying motion and had served favourable offers to settle, the court held the motion process was unnecessary because he failed for years to answer undertakings and produce contemporaneous insurer communications that would likely have resolved the coverage dispute earlier.

Applying the costs discretion under s. 131 of the Courts of Justice Act and the Rule 57.01 factors, with particular emphasis on whether an unnecessary step was taken, the court awarded costs against the moving defendant to the insurer respondent.

The decision emphasizes the post-Hryniak culture shift requiring timely disclosure and cooperative, proportionate litigation conduct.

The defendant requested dismissal of an action commenced by a plaintiff previously declared a vexatious litigant.

The court held that, because the plaintiff had not obtained leave under s. 140(3) of the Courts of Justice Act and the prior vexatious litigant order remained in force, Rule 2.1.03(1) required the proceeding to be stayed or dismissed.

Given the plaintiff's disregard of the earlier order and the nature of the claim arising years after the impugned events, dismissal rather than a stay was warranted.

The plaintiff was denied any right of audience on costs while in breach of the existing court order.

On a defendants' motion for partial summary judgment in a franchise misrepresentation action, the court dismissed six remaining challenged causes of action relating to pre-opening events.

The court held that claims based on opening costs, profit-and-loss cost projections, alleged disclosure deficiencies, construction-manager selection, unsupported excessive-fee allegations, and an alleged exclusive-territory representation were either commenced outside the two-year limitation period or lacked evidence sufficient to raise a triable issue.

Applying the post-Hryniak summary judgment approach, the court rejected the responding parties' attempt to defer proof until discovery or future expert investigation.

The action was permitted to continue only on the remaining causes of action not disposed of by the motion.

Following prior summary judgment dismissing the action and a subsequent unsuccessful attempt to continue it, the plaintiff delivered a further motion seeking discovery by written interrogatories.

The court held that the continued pursuit of claims in the face of binding judicial decisions suggested the motion was frivolous, vexatious, and an abuse of process.

The registrar was directed to issue Rule 2.1 notice, the motion was stayed under s. 106 of the Courts of Justice Act, and no further filings were to be accepted except permitted written submissions.

In a medical negligence action arising from allegations that hepatitis B vaccinations caused multiple sclerosis, the court addressed a request by the plaintiffs' counsel for an extension of time to deliver responding motion materials on a pending summary judgment motion.

The request was made by letter after a case conference, notwithstanding that an adjournment motion and related procedural issues had already been scheduled for hearing.

The court held that the letter request was improper and that the existing consent scheduling order remained in full force and effect unless and until amended.

The extension request was therefore denied, with the plaintiffs' broader adjournment motion left to be determined in the ordinary course.

In three related wrongful dismissal actions, the employer sought consolidation to reduce duplicative discovery while the plaintiffs were pursuing summary judgment motions.

The court expressed concern that the parties' motion practice might be obscuring the real dispute about the scope of necessary discovery and emphasized efficiency, affordability, and proportionality.

A timetable was set for delivery of motion materials, identification of proposed cross-examinations and summonses, and a further case conference at which consolidation, hearing together, and the scope of examinations could be addressed.

Following earlier findings of civil contempt for non-compliance with a Mareva injunction and related disclosure orders, the court determined sentence.

The contempt involved repeated failures to disclose assets and the whereabouts of trust funds, deliberate obstruction of examinations, and ongoing refusal to purge contempt despite multiple opportunities and clarifying endorsements.

Applying civil contempt sentencing principles that emphasize proportionality, coercion, deterrence, denunciation, and compliance, the court imposed conditional sentence orders on two contemnors and an intermittent custodial sentence on the contemnor found most deliberately defiant.

The court also awarded the successful moving party substantial indemnity costs of the contempt process.

At a second case conference in advance of a summary judgment motion, the court addressed stalled motion preparation arising from document production, cross-examination, and scheduling disputes.

The court held that the matter had benefited from a light-touch form of case management in Civil Practice Court sufficient to break the procedural logjam.

With the procedural issues resolved and settlement discussions canvassed, the summary judgment motion was directed to proceed.

The endorsement explains that full Rule 77 case management was unnecessary because nothing remained for the Civil Practice Court judge to do.

The court revisited an earlier endorsement staying the action under Rule 2.1 after being advised it had confused this proceeding with another one commenced by the plaintiff.

On reviewing the statement of claim anew, the court held that the pleading appeared on its face to be frivolous and vexatious because it did not set out concise factual allegations or legally cognizable claims.

The court directed the registrar to issue a further Form 2.1A notice, maintained the stay of proceedings, stayed the parties' pending motions, and barred further filings except the plaintiff's written submissions permitted by the rule.

Both sides moved for summary judgment arising from a rental vehicle dispute that led to the plaintiff being charged with theft after the defendants reported the vehicle stolen.

The court held there is no tort of negligent investigation against private informants who are not in the business of investigation, and found the malicious prosecution claim failed because the police initiated the charge, reasonable and probable grounds existed, and there was no evidence of malice.

The defamation claim also failed because communications to police were protected by qualified privilege and malice was not established.

Summary judgment was granted dismissing the action, with costs awarded to the defendants.

The plaintiff lender moved for summary judgment dismissing a counterclaim and for judgment on two mortgage loans arising from a construction financing arrangement.

After a mini-trial, the court held the written loan agreement did not require the lender to fund monthly interest payments from future advances and did not oblige the lender to make further advances after the borrowers defaulted.

The court rejected allegations that the mortgage broker bound the lender to any side agreement or that the lender owed a duty to protect the borrowers from entering a high-risk loan they could not carry.

The counterclaim was dismissed, the stay on the mortgage judgment was lifted, and judgment, possession, and substantial indemnity costs were granted to the lender.

In this motor vehicle damages trial, liability was admitted and the jury assessed damages only.

The court then determined a threshold motion under s. 267.5(5) of the Insurance Act and held the plaintiff failed to prove that the collision caused either the alleged chronic pain syndrome or a later gastric volvulus.

The court made strong adverse credibility findings, relied on conflicting medical evidence, and concluded causation had not been established on a balance of probabilities.

Although the jury awarded $30,000 in general damages, the statutory deductible eliminated the award and the action was dismissed.

Following dismissal of an application for a prescriptive easement, the successful respondent sought partial indemnity costs.

The unsuccessful applicants argued the amount was disproportionate, particularly given the nature of the property dispute and the respondent's greater financial means.

The court applied the costs discretion under s. 131 of the Courts of Justice Act, together with Rules 57.01 and 1.04(1), and held that the respondent was entitled to recover fair and reasonable costs reflecting the complexity of the matter and the steps taken to defend its property rights.

Partial indemnity costs were fixed at $76,521.49, payable jointly and severally by the applicants.

The plaintiff sought an interlocutory injunction arising from an alleged scheme by a former consultant and others to appropriate the goodwill, opportunities, confidential information, sponsors, and venue associated with the plaintiff's established industry conference.

The court found a strong prima facie case in breach of contract, unlawful interference with economic interests, passing off, and civil conspiracy, with at least serious issues to be tried on fiduciary duty.

Applying the RJR-MacDonald and American Cyanamid injunction frameworks, the court held that damages would be inadequate given the intangible and difficult-to-quantify loss of goodwill, market position, and reputation, and the defendants' inability to satisfy a damages award.

The balance of convenience favoured preserving the plaintiff's position and preventing the defendants from using the fruits of the alleged misconduct.

Interlocutory injunctive relief was granted pending trial or other final disposition.

Following prior orders striking and dismissing the plaintiff's claim as an abuse of process tied to an attempted re-litigation of an eviction, certain defendants invoked Rule 2.1.01 in relation to a further amended statement of claim.

The court held that the pleading appeared on its face to be frivolous, vexatious, and an abuse of process, and directed that notice issue to permit written submissions from the plaintiff.

Pending the outcome of that process, the court stayed any extant part of the action under s. 106 of the Courts of Justice Act and barred further filings except written submissions permitted by the rule.

The defendants moved to adjourn a commercial trial for at least ninety days after the plaintiffs produced late backup financial documents affecting the quantification of damages and expert evidence.

The court held that fairness in civil procedure must be read through the proportionality, timeliness, and affordability principles emphasized in Hryniak, and that perfect disclosure is not required before trial can proceed.

The defendants had sufficient time to take practical steps, including limited further discovery and expert review, and had not shown that a lengthy adjournment was necessary.

The motion was dismissed, limited additional discovery and trial management directions were ordered, and the plaintiffs received costs of $3,000.

The defendant lawyer moved for summary judgment to dismiss a professional negligence action.

The plaintiff alleged the defendant was negligent in failing to appeal the disallowance of its secured claim in a bankruptcy.

The court assumed negligence but found the plaintiff could not prove causation or damages, as it failed to adduce evidence that the bankrupt had any rights in the funds over which the plaintiff claimed a security interest.

Without the bankrupt having rights in the collateral, the security interest could not attach under the Personal Property Security Act.

The action was dismissed with costs awarded to the defendant.

The plaintiffs brought a motion for summary judgment against their long-time accountant and his corporation for breach of contract and breach of fiduciary duty.

The accountant had advised the plaintiffs to invest over $1 million in his own unregistered pooled mortgage fund, granting his corporation absolute discretion over the funds without disclosing the lack of regulatory safeguards or advising them to seek independent legal advice.

The court found the accountant and his corporation breached their fiduciary duties and contracts, and awarded restitutionary damages of $1,074,716 plus substantial indemnity costs.

The court-appointed Receiver for the properties of a local branch of The Polish Alliance of Canada moved for directions regarding its administration.

The plaintiff national association criticized the Receiver's neutrality, objecting to the presence of former branch executives on the property and disputing the membership list for an upcoming executive election.

The court approved the Receiver's conduct as prudent and neutral, rejected the plaintiff's attempt to unilaterally dictate branch membership, and directed the Receiver to hold an election among the 19 recognized remaining branch members.