Kaufman

The plaintiff moved to strike the self-represented defendant's amended statement of defence for failure to pay two prior costs orders.

The court found that only the costs order made in the current proceeding could be relied upon to strike the pleading.

The defendant claimed impecuniosity but failed to provide sufficient financial evidence to support the claim.

The court granted the motion conditionally, ordering that the defence be struck unless the defendant pays the outstanding costs from the prior order and the current motion within 30 days.

The respondent brought an urgent motion seeking interim sole decision-making responsibility for the parties' child, communication restrictions, and a restraining order.

The child, who has autism spectrum disorder, was experiencing severe behavioural issues at school and required immediate medical and educational interventions.

The applicant refused to consent to treatment or services unless his conditions for unsupervised parenting time were met.

The court granted the respondent sole decision-making responsibility for the child's health and schooling, and ordered the applicant to restrict his communications to civil, child-focused matters through counsel.

The request for a restraining order was dismissed as not urgent.

The applicant father brought an urgent motion under Rule 14(4.2) of the Family Law Rules seeking an interim transitional parenting schedule culminating in equal parenting time.

The parties separated in April 2020, and the applicant was required to leave the matrimonial home in August 2021 due to criminal charges and bail conditions preventing him from being near the respondent.

The court found no urgency, as the respondent had offered a reasonable interim parenting schedule that would allow the applicant to see the child on six days out of fourteen.

The motion was dismissed, and an interim parenting schedule was ordered based on the respondent's proposal.

The defendant moved for summary judgment to dismiss the plaintiff's civil claim for the return of approximately $190,000 transferred during their relationship.

The defendant argued the claim was barred by res judicata, as the issue of the unreturned money was raised and determined in their prior family law trial regarding spousal support.

The court granted the motion, finding that both issue estoppel and cause of action estoppel applied.

The court declined to exercise its discretion to relieve against the operation of res judicata, emphasizing the importance of finality in family law proceedings and preventing duplicative litigation.

The parties settled a motor vehicle accident claim for $9,000 for past loss of income and housekeeping capacity, but could not agree on costs.

The plaintiff sought over $70,000 in costs and disbursements, while the defendants argued for a maximum of $12,278.31 plus HST based on proportionality.

The court found that the plaintiff's costs should be discounted because she was unsuccessful on her claim for general damages.

The court also declined to award costs for the pursuit of Statutory Accident Benefits, as the defendants received no benefit from them.

Costs were fixed at $42,229.05.

The plaintiff and defendants brought cross-motions to compel answers refused on discovery and to challenge claims of privilege in an action alleging misappropriation of funds by a son acting under a power of attorney.

The court held that financial records for tracing purposes need not be produced before liability is established, but ordered production of records showing how the transferred funds were characterized.

The court upheld the defendants' claim of litigation privilege over communications with their bookkeeper and refused to order disclosure of e-discovery search terms.

The court also ordered the plaintiff to produce his 2018 will and his social worker's file, subject to valid privilege claims, as they were relevant to the defendants' theory that the plaintiff's daughter was controlling the litigation.

The defendants brought a motion to amend their statement of defence to include a counterclaim in a simplified procedure action.

The plaintiffs consented to the amendment but requested further oral discovery to question the defendants on the counterclaim and newly produced documents, specifically a Code of Conduct.

The court granted the amendment and allowed the plaintiffs an additional 45 minutes of discovery, finding that the Code of Conduct should have been produced earlier and would have been a legitimate area of inquiry.

Costs of the motion were awarded to the plaintiffs.

The plaintiff subcontractor sought payment from the owner's holdback funds after the general contractor failed to pay for work on a restaurant construction project.

The court determined that the contract between the owner and general contractor was not a fixed-price contract but rather a costs-plus arrangement, meaning the owner's 10% holdback obligation was calculated based on the total actual costs incurred.

The court also found the owner was not liable for a further notice holdback because it did not receive written notice of the liens in the prescribed form.

Finally, the court interpreted trust agreements between the owner and other subcontractors who had discharged their liens, awarding them payments from the trust funds based on the specific terms of their respective agreements.

The applicant brought a motion for substituted service on the respondent, who resides in the United States and was evading service.

The applicant proposed service by email and Facebook messenger.

The court noted that under the Hague Service Convention, service by email or social media is not authorized, but service by postal channels is permitted.

The court granted substituted service by regular first class and registered mail to the respondent's address in Texas.

The applicant mother brought an urgent motion to suspend the respondent father's parenting time, alleging the children were afraid of him and that he used inappropriate discipline.

The Children's Aid Society had investigated and closed its file, finding no physical danger.

The court dismissed the motion, finding that the situation did not meet the legal threshold for urgency under Rule 14(4) of the Family Law Rules, as there was no immediate risk of harm, and the applicant had not attempted to negotiate or schedule a case conference before bringing the motion.

Following the dismissal of the plaintiff unit owner's motion for partial summary judgment regarding a condominium lien for common element damage, the successful defendant condominium corporation sought costs.

The court fixed the defendants' costs at $13,500 on a full indemnity basis, noting the Condominium Act's intent to protect innocent unit holders from the financial burden caused by defaulting owners.

However, given the plaintiff's modest means and the fact that the action was ongoing, the court ordered the costs payable at the end of the proceeding rather than forthwith to avoid depriving the plaintiff of his day in court.

The plaintiff unit owner brought a motion for partial summary judgment to invalidate a lien registered against his unit by the defendant condominium corporation.

The lien was registered after the plaintiff failed to pay for smoke damage remediation costs caused by leaving food unattended on his stove.

The plaintiff argued the lien was invalid because the corporation failed to mediate before registering it and registered it late.

The court dismissed the motion, finding that mediation under s. 134 was not required for a s. 85 lien for common expenses, and that the lien was registered within three months of the plaintiff's default.

The defendants brought a motion to discharge certificates of pending litigation (CPLs) registered against their properties pursuant to an ex parte order.

They argued the plaintiff failed to make full and fair disclosure of material facts, including communications between counsel and a settlement agreement.

The court found that the plaintiff failed to disclose material facts that would have affected the outcome of the ex parte motion.

The CPLs were discharged, but the court ordered that the defendants not further encumber or sell the properties without consent or 45 days' notice.

The moving defendants brought a motion for security for costs against the corporate plaintiff in an action arising from a failed joint venture to develop LeBreton Flats.

The court found there was good reason to believe the plaintiff had insufficient assets to satisfy a costs award, as its liabilities exceeded its assets.

The plaintiff failed to demonstrate sufficient exigible assets, relying instead on future revenue streams which the court found inadequate.

The court concluded it was just to order security for costs, noting the moving defendants were minor players facing significant expenses and the plaintiff's controlling shareholder would otherwise be shielded from costs liability.

The plaintiff was ordered to post security in instalments.

The defendants brought a motion to compel the plaintiff to serve a further and better affidavit of documents, specifically seeking the production of her counsel's entire litigation file.

The defendants argued the file was relevant to quantifying damages, which they claimed was an essential element of the plaintiff's bad faith action against her insurer.

The court dismissed the motion, finding that a claim for punitive damages arising from a breach of the duty of good faith does not require proof of a distinct monetary loss.

Consequently, the requested documents were deemed irrelevant to the matters in issue.

The plaintiff sought costs of $28,587.29 on a partial indemnity scale following a motion regarding a defence medical examination where success was divided but the plaintiff achieved greater success.

The defendants argued that no costs should be awarded or that they should follow the event, contending the hours claimed were excessive for a two-hour motion.

The court agreed the hours claimed were excessive and fixed costs at $6,500 payable by the defendants to the plaintiff.

The plaintiff brought a motion to amend his statement of claim to remove his mother as a defendant and add her as a plaintiff, with himself acting as her litigation guardian.

The defendant brother opposed the motion, arguing the plaintiff was not an appropriate litigation guardian due to a conflict of interest and an acrimonious relationship.

The court found that the mother was a party under disability requiring a litigation guardian.

The court also held that the plaintiff was an appropriate litigation guardian, as he had no interest adverse to his mother and the level of acrimony did not interfere with his ability to act in her best interests.

The motion to amend the statement of claim was allowed.

The defendants brought a motion to compel the plaintiff to attend a defence medical examination shortly before a scheduled medical negligence trial.

The plaintiff opposed and brought a cross-motion to strike portions of the defendants' motion record, alleging a breach of settlement privilege.

The court found that the defendants did not require leave under Rule 48.04 to bring the motion, as they had not consented to the action being placed on a trial list.

However, the court dismissed the motion for a medical examination, finding it would prejudice the plaintiff given the impending trial date.

The cross-motion was also dismissed, as the impugned communications did not contain offers or compromises protected by settlement privilege.

The plaintiff brought a motion to compel the defendants to serve a further and better affidavit of documents in an action for punitive damages based on an alleged breach of the duty of good faith by her insurer.

The plaintiff argued that the defendants' Schedule 'B' improperly grouped privileged documents without listing them and omitted relevant communications between the insurer and the tortfeasors.

The court found that the plaintiff had satisfied the evidentiary burden to show relevant documents may have been omitted and ordered the defendants to produce a further and better affidavit of documents.

The applicant mother brought an urgent motion to resume the regular parenting schedule, which was denied because she failed to attempt to resolve the dispute before coming to court.

The respondent mother subsequently sought costs for the urgency determination, arguing for an elevated award due to the applicant's unreasonable behaviour.

The court awarded the respondent partial indemnity costs of $2,100, finding no bad faith on the applicant's part but affirming the respondent's presumptive entitlement to costs as the successful party.