Kevin Mooibroek

The defendants moved to strike the plaintiff's Statement of Claim under Rule 21.01(1)(b) of the Rules of Civil Procedure.

The plaintiff, who claimed an interest in a property destroyed by arson, sued the lender and the lender's lawyer for breach of contract, negligence, and breach of fiduciary duty regarding a construction mortgage.

The court struck the breach of contract claims because the plaintiff was not a party to the mortgage agreement.

The negligence and fiduciary duty claims against the lawyer were also struck because the lawyer owed no duty to the non-client plaintiff.

The motions were granted without leave to amend.

The defendant brought a motion for security for costs of $350,000 ahead of a scheduled trial.

The court dismissed the motion, finding that the defendant had unduly delayed in bringing the motion without a cogent explanation, having waited until after discoveries and an unsuccessful summary judgment attempt.

Furthermore, the defendant failed to meet the threshold onus under Rule 56.01(1) to show good reason to believe the corporate plaintiffs lacked sufficient assets in Ontario, as evidence showed the plaintiffs held over $745,000 in exigible assets.

This is a costs decision following a summary trial in which the plaintiff's action for 50 percent of the defendant's $301,000 casino jackpot winnings was dismissed.

The action was based on alleged breach of an oral contract, breach of trust, and unjust enrichment.

The defendant sought substantial indemnity costs of $79,750.65, while the plaintiff argued for a reduced award of $25,000.

The court awarded the defendant $40,773.84 in costs, considering factors including the nature of the dispute, the use of two counsel, conduct issues involving a witness, and the principle that costs awards should be fair and reasonable rather than blindly reflecting actual costs incurred.

Following a family tragedy involving domestic violence, the applicant sought enforcement of a consent order regarding property ownership and distribution of sale proceeds.

The respondent brother claimed entitlement to reimbursement for post-order property expenses and carrying costs.

The court found the applicant was an unreliable witness but entitled to the majority of her claimed relief.

The respondent was ordered to pay the applicant $45,532 after adjusting for legitimate expenses he incurred on the property.

Claims against the former lawyer were dismissed with costs awarded to him.

The court considered a motion by the moving defendants for an order requiring the plaintiff, River City Christian Reformed Church, to pay security for costs under Rule 56.01(d) of the Rules of Civil Procedure.

The plaintiff, a not-for-profit corporation, sought relief for alleged fraud, misrepresentation, breach of duty, oppression, and unjust enrichment relating to a failed property acquisition.

The court found that the plaintiff was impecunious and that its claim was not plainly devoid of merit, and therefore dismissed the motion for security for costs.

The plaintiff sought half of a casino royal flush jackpot won by his brother, alleging breach of an oral jackpot-sharing agreement, breach of trust, and unjust enrichment.

The court found there had been a longstanding arrangement to share significant gambling winnings when the brothers attended and played together, but that arrangement was narrowed by an April 17, 2022 text exchange to apply only when both were there together.

Because the defendant won the jackpot while alone, the revised agreement did not apply and there was no breach.

The court also rejected the trust and unjust enrichment claims and dismissed the action.

The plaintiffs, TDCI Bracebridge Inc., Beaver Valley Holdings Limited, and Premiere Self Storage Inc., brought claims against Thomas Sheppard and Heel Strike Corporation for negligence, breach of fiduciary duty, and related causes of action arising from mortgage transactions and the management of a development property.

The defendants moved for summary judgment, arguing the claims were statute-barred and, in part, without merit.

The court dismissed the motion to dismiss the claims against Sheppard as statute-barred, but granted summary judgment dismissing the claims regarding payments to Heel Strike and the negligence claim by Premiere Self Storage Inc., finding no genuine issue requiring a trial on those issues.

Following the dismissal of the plaintiff's action by summary judgment, the successful defendants sought costs on a substantial or full indemnity basis.

The plaintiff had alleged that the defendants conspired to conceal noise from idling trains and made fraudulent misrepresentations regarding a commercial sublease.

The court held that the plaintiff's unproven allegations of fraud and dishonesty justified an award of substantial indemnity costs.

Applying the overriding principle of reasonableness, the court awarded costs of $66,521.61 to the defendant real estate broker and $198,000 to the defendant accounting firm.

The plaintiff sublessee brought an action against the defendant sublessor and its real estate broker, alleging they fraudulently concealed a latent defect regarding excessive noise from idling trains at the adjacent Union Station.

The defendants brought motions for summary judgment to dismiss the action.

The court granted the motions, finding that the train noise was a patent defect, not a latent one, and there was no evidence of a conspiracy to conceal it.

Furthermore, the plaintiff had acknowledged the proximity to the train station and agreed to an exculpatory clause in the lease that shielded the defendants from liability for train noise.

The appellant, a formerly licensed lawyer, appealed the dismissal of his $15 million action against his former counsel for negligent legal advice and ineffective assistance during contempt proceedings.

The motion judge had dismissed the action under Rule 21.01(3)(d) as frivolous, vexatious, or an abuse of process.

The Court of Appeal dismissed the appeal, affirming that the action constituted an impermissible collateral attack on previous contempt findings.

The court also upheld the motion judge's finding regarding the limited scope of the retainer, which did not obligate counsel to adduce the additional evidence the appellant claimed was missing, and concluded that such evidence would not have altered the original contempt finding based on the appellant's collusion with his former client.

The defendants moved to dismiss a 2009 action for delay and, alternatively, for security for costs.

The court found the delay of 13 years to be inordinate and inexcusable, primarily due to the plaintiff Lawrence Mark Dale's inactivity and failure to provide explanations or respond to the motion.

A presumption of prejudice to the defendants arose, which the plaintiff failed to rebut, particularly given the nature of the conspiracy claims requiring witness recollection.

The action was dismissed for delay.

The court also addressed the security for costs motion, noting that if the action had not been dismissed, Mr. Dale would have been ordered to post $400,000 in security for costs to TRREB due to an outstanding costs order against him in another proceeding.

The defendants brought a motion to dismiss the plaintiff's professional negligence and negligent misrepresentation claims as frivolous, vexatious, or an abuse of process under Rule 21.01(3)(d).

The plaintiff, a suspended lawyer, alleged negligent legal advice and breach of professional obligations by the defendants in defending him against a civil contempt application, which resulted in a jail sentence.

The court found that the plaintiff's action constituted an impermissible collateral attack on prior court orders that had already established his contempt.

The court accepted the defendants' evidence regarding the limited scope of their retainer and dismissed the plaintiff's claims, including a claim for recovery of legal fees, which the court suggested should be pursued under the Solicitors Act.

The appellant appealed a decision and was partially successful, achieving a $1,000 reduction in damages, but the respondent succeeded on the main issue of liability.

The respondent had also made offers to settle that would have significantly reduced the amount paid by the appellant.

The court awarded costs of the appeal to the respondent in the amount of $6,000, which was the amount proposed by the appellant.

The appellant car dealership appealed a Small Claims Court judgment awarding the respondent $20,179 in damages for misrepresenting the condition of a used vehicle that had previously been designated a 'lemon'.

The Divisional Court upheld the trial judge's findings on liability and the damages for financing and repair costs, finding no palpable and overriding error.

However, the court allowed the appeal in part by setting aside the $1,000 award for mental stress, as there was no medical evidence to support it.

The plaintiff commenced an action against her husband's children and the lawyers who acted for him in prior divorce proceedings, alleging conspiracy, abuse of process, and other torts.

The defendants moved to strike or dismiss the claims under Rule 21.

The court dismissed the claims against the adverse lawyers, finding no duty of care was owed to the plaintiff.

The court also dismissed the tort claims for abuse of process, conspiracy, and intentional interference with economic relations as an abuse of process by relitigation, as they sought to undermine the final settlement reached in the divorce proceedings.

The defamation and intentional infliction of mental suffering claims were struck with leave to amend.

The defendant, a real estate lawyer, brought a motion to remove the plaintiff's counsel of record.

The defendant argued that he had previously consulted the plaintiff's counsel regarding the very mortgage transactions at issue in the litigation, imparting confidential information.

Furthermore, the defendant argued that the plaintiff's counsel would likely be a necessary witness at trial regarding the plaintiff's efforts to mitigate damages in a related mortgage enforcement action.

The court applied the MacDonald Estate test for conflicts of interest and the Essa factors for lawyers as witnesses.

The court found that the plaintiff's counsel had a disqualifying conflict of interest and was also likely to be a witness at trial.

The motion to remove counsel was granted.

The defendants in a solicitor's negligence action brought a motion to remove the plaintiff's lawyers of record, arguing they had a conflict of interest and would likely be called as witnesses at trial.

The plaintiff's lawyers had represented the plaintiff in the underlying bankruptcy matters both before and after the defendants' retainer.

The court found that the lawyers' evidence regarding the advice they gave the plaintiff and the steps they took or failed to take was significant to the defendants' defence and mitigation arguments.

Applying the relevant principles, the court concluded that a fair-minded, reasonably informed member of the public would find the proper administration of justice required the lawyers' removal.

The motion to remove counsel was granted, while motions for production and leave to examine non-party witnesses were adjourned.