Karen E. Jolley

The defendants brought a motion to dismiss the plaintiff's wrongful dismissal action for delay under the Langenecker test.

The action had been outstanding for eleven years but was a relatively straightforward wrongful dismissal claim for a one-year employee.

The court found the delay was inordinate but not inexcusable, as the plaintiff had adequately explained the turnover of counsel and procedural complications.

Even assuming the delay was inexcusable, the court found no prejudice to the defendants' ability to have a fair trial, as discovery transcripts preserved evidence and previous findings on the amendment motion had already rejected prejudice claims.

The defendants' motion was dismissed and the plaintiff's cross-motion to restore the action to the trial list was granted with a peremptory timetable imposed.

The moving party plaintiff brought a motion to strike the defences of multiple defendants who had repeatedly failed to comply with court orders requiring payment of costs and delivery of affidavits of documents.

The court applied the test from Falcon Lumber, considering whether the failures were deliberate, clear and unequivocal, whether reasonable explanations were provided, and whether the remedy was proportionate.

The court found the failures of four defendants — including a corporate defendant whose sole director is not a lawyer and who had not retained counsel as ordered — to be deliberate and unexcused, warranting the striking of their defences.

One defendant whose obligations had been fulfilled on the eve of the motion was spared.

The defendants whose defences were struck were ordered to pay costs jointly and severally.

Three defendants each brought motions to compel the plaintiff railway company to answer questions refused on examination for discovery in an action arising from a 2020 train derailment involving a tanker car with a defective wheelset.

The court assessed relevance and proportionality of the requested questions, ordering the plaintiff to answer 4 of 12 questions sought by the railway manufacturer, 1 of 9 sought by the tanker car owner, and 3 of 4 sought by the shipper.

Costs followed the divided success, with the tanker car owner ordered to pay $5,000 to the plaintiff and the plaintiff ordered to pay $7,500 to the shipper.

The plaintiff brought a refusals motion seeking an order that the defendant answer undertakings and refusals from the continued examination for discovery of its representative, and that the representative re-attend for a continued examination.

The motion addressed ten groupings of refusals relating to succession planning, supervisor qualifications and conduct, harassment policy, employment records, conflict of interest, and HR practices in a wrongful dismissal action alleging inducement and misrepresentation.

The court granted some questions and denied others across the groupings, finding divided success.

The defendant was ordered to answer within 45 days and the plaintiff was permitted one further one-hour examination by Zoom.

Each party was ordered to bear its own costs.

The applicant law firm brought a motion seeking a declaration that the respondent abandoned her motion to challenge the retainer agreement in an assessment proceeding concerning unpaid legal fees.

The respondent served a notice of motion in May 2023 but failed to file it with the court or book a hearing date for over two years, despite repeated follow-up communications from the applicant.

The court found that while the respondent's conduct was deleterious, she did not demonstrate an intention to abandon the motion.

The court granted the respondent a final opportunity to file and serve her motion record with a return date by November 21, 2025, with the warning that failure to do so would result in the motion being deemed abandoned.

The court awarded costs of $12,000 to the applicant.

The plaintiff brought a motion seeking an order to validate and extend the time to serve the statement of claim on the defendants, to substitute the named defendant from "Boyce Stewart" to "Stewart Boyce" due to misnomer, and to extend the set down date from June 19, 2025 to June 19, 2027.

The defendants opposed the motion.

The court found that the plaintiff provided a reasonable explanation for the delay caused by departure of counsel and subsequent misunderstanding about file carriage.

The court further found that the defendants suffered no prejudice or unfairness, as the parties had exchanged information through their insurers within days of the accident and continued to do so for approximately two years before the claim was issued.

The court granted the motion, validating service and extending the set down date, while ordering each party to bear its own costs.

A landlord sought damages against a tenant and personal guarantors for breach of a commercial lease at 530 Yonge Street, Toronto.

The tenant defaulted on rent payments beginning in February 2020, and the lease was terminated in September 2023.

The court determined damages for unpaid rent to the end of the lease term, accounting for mitigation efforts through re-leasing portions of the space.

The court awarded total damages of $2,097,249.16 including mitigation costs and HST, plus interest at 12.20% per annum and legal costs of $24,921.86.

The defendants brought a motion to dismiss the plaintiff's action due to his failure to comply with multiple costs orders totaling $61,586.96.

The plaintiff argued he was entitled to a hearing before a panel of the Divisional Court to clarify their order before paying costs.

The court rejected this argument, finding no process exists for an explanatory attendance after an order is settled, the Divisional Court had already refused further attendance, the order was clear on its face, and the plaintiff's failure to pay costs remained unexplained.

The motion was granted with costs awarded to the defendants.

The applicant, husband of the deceased, sought an order compelling the respondents to answer refusals and provide better answers to undertakings given during cross-examinations in an estate application challenging a will and various transfers.

The applicant narrowed his motion to focus on communications-related refusals.

The court dismissed the motion, finding that the broad, unlimited requests for all communications were not relevant and overly broad.

Where more limited requests had been made, the respondents had already provided substantive answers or produced documents where found.

The court awarded partial indemnity costs to the successful respondents.

The plaintiff brought a motion to amend the name of defendant YM Inc. (Sales) o/a Sirens to La Maison Simons Inc. based on misnomer.

The motion was dismissed because the plaintiff had previously discontinued her action against Sirens on October 15, 2024, making the remedy of misnomer unavailable.

The court also found that the plaintiff did not seek to add Simons as a distinct party in the notice of motion.

Additionally, the court determined that even if adding Simons as a separate party were considered, the plaintiff failed to meet the burden of proving that the limitation period should run from any date other than the date of injury (November 3, 2019), which would be outside the applicable limitation period.

Costs were awarded to the proposed defendant.

The defendant, Fletcher’s Fields Limited, brought a motion for security for costs against the plaintiffs, Robert Llewellyn Jenkins (as trustee for the Estate of Samuel Harrison Ball) and the Estate of Samuel Harrison Ball.

The court found that the plaintiffs did not have sufficient assets in Ontario to satisfy a costs award and had not demonstrated impecuniosity or a good chance of success on the merits.

The court ordered the plaintiffs to post $20,000 as security for costs and awarded $10,000 in costs to the defendant, with both amounts payable within 60 days.

The decision addresses cross-motions to remove counsel for conflict of interest in a privacy action arising from a motor vehicle accident.

The plaintiff sought to remove the defendant’s counsel, Ms. Schultz, due to her dual role as counsel for the accident benefits insurer and for the defendant in the privacy action.

The court found a conflict and ordered her removal.

The defendant’s motion to remove the plaintiff’s counsel, the Campisi firm, was dismissed as there was no real basis to believe the firm could provide material, non-privileged evidence.

The decision addresses three motions in a civil action: the plaintiffs’ motion to extend and validate service of their statement of claim, the defendants’ motion for a status hearing, and the defendants’ motion to dismiss the action for delay.

The court validates service on the individual defendants, finds that limitation period arguments raise triable issues, and concludes that both parties contributed to the delay.

The court grants the plaintiffs’ motion for a status hearing, dismisses the defendants’ motion to dismiss for delay, and sets a timetable for the action to proceed to trial.

The moving defendants sought an order requiring the plaintiff to post security for costs under Rule 56.01(1)(b) and (e) of the Rules of Civil Procedure, arguing that the plaintiff had another proceeding for the same relief pending in Ontario and that the action was frivolous and vexatious with insufficient assets to pay costs.

The court found that the plaintiff currently had sufficient assets to satisfy any costs award and dismissed the motion for security for costs.

The court also declined to consider the plaintiff’s cross-motion to strike portions of the affidavits and made no order as to costs.

The plaintiff, Lisa Brown, sought an order requiring the defendant, The Bank of Nova Scotia, to produce documents listed in Schedule B of its affidavit of documents, and leave to examine and cross-examine certain bank officials.

The court found that most of the documents in question were protected by solicitor-client privilege, as they related to legal advice sought after a workplace investigation had concluded.

The court also rejected the plaintiff’s argument that a common interest privilege applied.

The motion was dismissed, and costs were awarded to the defendant, but payment was deferred until the conclusion of the action.

The defendants brought a motion to dismiss the plaintiff's 2018 action for delay, citing the plaintiff's failure to deliver an affidavit of documents since 2021 and non-compliance with a consent order from August 2023.

The self-represented plaintiff attributed the delay to being busy with other priorities, including an immigration consulting practice and other litigation.

The court found the delay inordinate and intentional, leading to a substantial risk that a fair trial would not be possible due to fading memories and lack of discovery.

The motion was granted, and the action was dismissed with costs to the defendants.

The plaintiff brought a motion to strike the defendants' statement of defence due to their persistent failure to comply with multiple court orders, including deadlines for affidavits of documents, attending examinations for discovery, and paying costs.

The defendants repeatedly appealed orders and sought adjournments, which the court found to be an abuse of process.

The court granted the plaintiff's motion, finding that further timetable orders would be ineffective given the defendants' history of non-compliance and delaying tactics.

The plaintiff brought a motion seeking to discontinue the action against several defendants, amend the statement of claim to identify the defendant Clarke as both operator and owner of the vehicle, and extend/validate service on Clarke.

The court dismissed the motion to extend time and validate service on Clarke, finding the plaintiff's explanations for the significant delay (inaccurate MTO search, firm staffing issues, and COVID-19) insufficient.

The court noted the prejudice to the defendant due to the inability to conduct a prompt investigation.

The order to discontinue against the other named defendants was granted.

The defendant sought leave to issue a third-party claim against Brenda Petty and Brenda Petty Unlimited LLC, arguing that the plaintiffs' expert report shifted the focus to Petty's negligence and the defendant's vicarious liability.

The plaintiffs opposed, citing prejudice due to delay and ongoing interest payments on a line of credit.

The court, applying principles from Farrell v Costco Wholesale and Fisher v Amherstburg, found no undue prejudice to the plaintiffs, as delay and expense alone do not constitute prejudice, especially when the action has not been set down for trial.

The court emphasized the desirability of avoiding multiplicity of proceedings and the risk of conflicting decisions, concluding that all related issues should be tried together.

The motion for leave to issue a third-party claim was granted.

The plaintiffs brought a motion to strike paragraphs 40 and 59 of the defendants’ statement of defence and counterclaim, arguing they pleaded privileged settlement discussions or evidence.

The defendants had offered to reverse an asset purchase "with prejudice" as a mitigation argument.

The court found that despite being marked "with prejudice," the offer was a privileged settlement proposal intended to end the litigation.

The motion to strike was granted, with leave to amend, allowing the defendants to plead failure to mitigate without reference to the specific offer.

Costs were awarded to the plaintiffs.