Alex Flesias

The defendants brought a motion to compel the plaintiffs to answer questions refused on discovery and fulfill an undertaking regarding legal advice the plaintiffs received from another lawyer.

The plaintiffs argued the information was protected by solicitor-client privilege.

The court found that the plaintiffs had put their state of mind and reliance in issue in their claim for solicitors' negligence and breach of fiduciary duty, thereby implicitly waiving privilege over communications with their other lawyer regarding the transactions at issue.

The court ordered the plaintiffs to answer the questions and produce the unredacted invoice as unconditionally undertaken.

The plaintiff, Antonio De Bartolo, sought to hold Roberto Mattacchione personally liable for legal fees incurred by Initiatives Canada Corporation (ICC), for which Mattacchione was the principal.

The court found that there was no enforceable contract or guarantee between De Bartolo and Mattacchione, and dismissed the claim against Mattacchione personally.

Judgment was granted against ICC and PAC Protection Corporation for the outstanding legal fees and interest.

The moving party brought a motion for directions regarding the responding party's failure to comply with previous court orders requiring the production of documents and attendance at an examination in aid of execution.

The court found that the contemnor, the sole director of the responding corporate debtor, had not purged his civil contempt as he failed to produce several important categories of documents.

As a sanction, the court ordered the contemnor to pay the full judgment amount of $424,769.22 into court, make a charitable donation, and pay full indemnity costs, failing which he would be deemed to have discontinued a related action against the moving party.

Following a decision granting summary judgment, the court issued a supplementary endorsement to address correspondence from the parties regarding costs.

The court had previously corrected two inadvertent errors in its costs awards at the request of the defendants.

The plaintiff's counsel subsequently emailed the court requesting that the costs orders be held in abeyance to allow for further written submissions, alleging sharp practice by opposing counsel.

The court declined the request, noting that all parties had previously agreed to the court determining costs based on the uploaded outlines without further submissions.

The court held that it was inappropriate to request a change to the costs decision or to make allegations of professional misconduct via email to the court.

The moving parties, a car rental company and its lessee, sought partial summary judgment dismissing the plaintiff's motor vehicle accident claims against them.

The plaintiff's vehicle was struck by the rental car, which was driven by the lessee's partner without express consent.

The court found that partial summary judgment was appropriate to determine the issue of consent.

Applying the objective test for implied consent, the court concluded that the driver would not have been justified in deeming she had implied consent to possess the vehicle, given she had never taken it before, only had a G1 license, and the lessee had no reason to suspect she would take it.

The motions were granted and the claims against the moving parties were dismissed.

Perley-Robertson, Hill, & McDougall LLP brought a motion seeking a finding of contempt against Grant Bourdeau, an officer and director of Acenzia Inc., for failing to comply with an order to attend an examination in aid of execution and produce documents.

The motion also sought a writ of sequestration against Acenzia Inc. The court found Bourdeau in contempt, ruling that he intentionally breached a clear and unequivocal order by refusing to answer questions and produce documents.

The court ordered Bourdeau to purge his contempt within 60 days by attending the examination, failing which he would face 30 days in jail.

Costs were awarded to the moving party.

The plaintiff contractor and defendant owners disputed which of two quotes formed the basis of their construction contract for a medical clinic build-out.

The court held that the plaintiff's December 2018 quote constituted a valid offer that was accepted by the defendants through an agent who had ostensible authority to bind the plaintiff.

The court found that the subsequent January 2019 quote was never accepted and lacked consideration, and therefore did not amend the contract.

The court also determined that the contract was solely between the plaintiff and the defendants' corporate entity, not the individual defendants.

This endorsement addresses the costs of motions brought by Broccolini Construction (Toronto) Inc. ("Broccolini") to reduce a lien registered by Elegant Façade Inc. ("Elegant") and for security for costs, as well as an earlier refusals motion.

Broccolini was successful in significantly reducing the lien amount and obtaining an order for security for costs.

The court rejected Elegant's argument to reserve costs to trial, finding that the motions resolved sub-issues definitively.

Considering the complexity, importance, and Elegant's unreasonable litigation conduct, including an exaggerated lien claim and failure to accept a reasonable offer, the court awarded Broccolini substantial indemnity costs totaling $119,453.85.

The defendant general contractor brought a motion to reduce the amount of security posted to vacate a construction lien registered by the plaintiff subcontractor, and for an order requiring the plaintiff to post security for costs.

The court found that the plaintiff's claim for extra work was clearly inflated and lacked sufficient evidentiary support, and that the plaintiff failed to comply with contractual notice provisions.

The court reduced the lien amount to $797,636.23 and ordered the plaintiff to post $120,000 as security for costs, finding good reason to believe the plaintiff lacked sufficient assets in Ontario to pay a costs award.

The defendants brought a motion to quash the plaintiff's appeal of an order requiring the plaintiff's corporate representative to answer refusals and re-attend an examination.

The plaintiff argued the order was final because the representative was a non-party.

The Divisional Court held that an order against a corporate representative put forward by a party is interlocutory, not final, as the representative is not a true stranger to the litigation.

The motion was granted and the appeal was quashed.

This is an appeal from a summary judgment awarding damages for the appellants' failure to close a residential real estate transaction.

The appellants challenged the damages amount, arguing failure to mitigate and issues with expert evidence.

The respondent cross-appealed the prejudgment and postjudgment interest rates.

The Court of Appeal dismissed both the appeal, finding the appellants failed to discharge their onus on mitigation, and the cross-appeal, affirming the motion judge's discretion to depart from the contractual interest rate due to special circumstances (respondent's delay in marketing the property).

The appellant, a commercial tenant, commenced a Superior Court action against its former landlord and another tenant for breach of contract and various torts.

The motion judge struck the claim as an abuse of process because the issues were substantially the same as two small claims actions the appellant had already commenced against the respondents.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the actions were substantially the same and constituted an abuse of process.

The court also upheld the motion judge's award of substantial indemnity costs.

This endorsement addresses the costs of a successful motion by the plaintiffs to add new defendants and amend their Statement of Claim.

The plaintiffs sought substantial indemnity costs, arguing the motion was unnecessarily complicated by the responding parties.

The court found the plaintiffs were entitled to costs but not on a substantial indemnity basis, as there was no reprehensible conduct by the opposing parties.

The court fixed the plaintiffs' costs at $25,000, inclusive of disbursements and HST, payable jointly and severally by the responding parties within 30 days, rejecting the suggestion to reserve costs to the trial judge.

The plaintiffs brought a motion to add a new corporate defendant and several individual defendants, and to amend their Statement of Claim to increase damages to $8,000,000 and assert claims of fraud.

The plaintiffs alleged that the original defendant transferred its business and assets to the new corporate defendant to defeat the plaintiffs' claims regarding environmental contamination advice.

The court granted the motion, finding that the plaintiffs moved with sufficient dispatch upon discovering the new corporation and that the allegations were more conveniently dealt with in the present action.

The defendants brought a motion to set aside two partial default judgments obtained by the plaintiff, NRG Lites Inc., arguing the Registrar lacked jurisdiction.

The Master agreed, finding the claim was not for a liquidated demand as it required a legal determination of individual liability for a contract with an alleged non-existent corporation and lacked sufficient particulars.

The Master also criticized the plaintiff's counsel for sharp practice in obtaining default judgments without notice to opposing counsel.

The motion was granted, setting aside the judgments, notings in default, and writs of seizure and sale.

The defendant brought an urgent motion to set aside a default judgment and the noting in default in a mortgage enforcement action, and sought a stay of a writ of possession after the sheriff had already executed the writ and removed the family from the property.

The moving party asserted that funds would shortly become available from a third party to pay out the mortgage and requested a brief stay.

The court found there was insufficient evidence that the promised funds would be advanced and noted the moving party had known about the order for weeks without taking appropriate procedural steps.

The court emphasized the diligence of the mortgagee and the protections afforded to mortgagees in enforcement proceedings.

The requested stay was refused and the writ of possession remained operative, subject to a limited opportunity to repurchase the property upon immediate payment.

This was a costs endorsement arising from an appeal concerning costs at first instance on a motion for summary judgment.

After receiving written submissions from counsel, the court ordered that those costs be costs in the cause.

The amount was not fixed by the appellate court and was left to the summary judgment judge or trial judge, as the case may be.

The respondent purchased a residential property from the appellant and later discovered it had previously been used as a marijuana grow-op and contained mould.

The respondent successfully obtained partial summary judgment on liability.

On appeal, the Court of Appeal set aside the judgment, finding that the motion judge's brief endorsement failed to provide any legal analysis or findings of fact regarding the existence of mould at the time of closing, thereby preventing meaningful appellate review.

The moving defendants sought summary judgment dismissing claims for breach of contract and breach of trust arising from a construction project.

The plaintiff subcontractor alleged it had a contractual relationship with the construction manager and that trust obligations arose under the Construction Lien Act.

The court found the construction manager acted only as construction manager and not as a general contractor, and that the plaintiff’s contractual relationship was with the project owners.

As the construction manager never received funds relating to the subcontractor’s work, no trust obligations could arise.

The court concluded there was no genuine issue requiring a trial and dismissed the action against the moving defendants.

The court addressed costs following an earlier order converting an application into an action with terms.

The judge considered the discretionary nature of costs under s. 131(1) of the Courts of Justice Act and the factors listed in Rule 57.01(1) of the Rules of Civil Procedure.

Although successful parties are generally entitled to costs, the court found reason to depart from the general rule given the litigation history and prior failures by certain respondents to comply with court orders that delayed the matter.

Costs were ordered to be in the cause between the corporate respondents, Robert Parr, and the applicant, fixed at $5,900 all-inclusive.

A respondent who was not a moving party was held not entitled to costs.