Cindy Cohen

The defendant successfully moved to set aside a default judgment obtained by his former spouse on a crossclaim, as he had never been served.

He sought costs on a substantial indemnity basis due to her unreasonable conduct in refusing to consent to the motion despite having no proof of service.

The court found the responding party's conduct egregious and awarded costs partially on a substantial indemnity basis, fixed at $6,835.

The responding party alleged that members of her former spouse's family and related corporations conspired to deprive her of interests in a U.S. luggage business and a related opportunity to participate in refinancing or rescuing the business.

The moving defendants sought summary judgment dismissing the conspiracy claim, arguing the impugned transactions were undertaken for legitimate business reasons in response to severe financial distress and secured creditor enforcement risk.

The court reviewed the tests for predominant-purpose and unlawful-conduct conspiracy, as well as the loss of chance doctrine, and concluded that while parts of the record undermined the claim, there remained genuine issues of fact regarding the terms, purpose, and implementation of an agreement among family members and whether the plaintiff lost a real business opportunity.

Summary judgment was therefore refused and the action was left for trial, with the judge remaining seized and inviting submissions under Rule 20.05.

The appellant rental car company sued the respondent renter and his insurer for a $10,000 deductible incurred after the rented vehicle was damaged in an accident.

The rental agreement required the renter to pay the deductible regardless of fault.

The Small Claims Court dismissed the action, finding it was barred by s. 263(5)(a.1) of the Insurance Act.

On appeal, the Divisional Court upheld the dismissal, confirming that the statutory first-party payor system prohibits rental companies from suing renters for deductibles incurred under their own direct compensation property damage coverage.

The appellants sought to overturn a trial judgment dated February 28, 2018 by advancing arguments that had been rejected by the trial judge and by challenging his credibility findings.

The Court of Appeal found no basis to interfere with the trial judge's findings and dismissed the appeal.

Costs were awarded to the respondent on a partial indemnity scale in the amount of $15,000, inclusive of disbursements and HST.

The defendant employer brought a motion for summary judgment to dismiss the plaintiff's wrongful dismissal action on the basis that it was commenced after the expiry of the two-year limitation period.

The plaintiff argued that the claim was not discoverable until settlement negotiations broke down and the employer refused to make further payments.

The court rejected this argument, finding that the plaintiff, who was represented by counsel, knew she had suffered damages and that litigation was an appropriate remedy shortly after her termination.

The motion was granted and the action was dismissed as statute-barred.

A non-party mortgagee brought a motion to discharge a Certificate of Pending Litigation (CPL) and a consent judgment from the title of a property it had sold under power of sale.

The plaintiffs, who were creditors of the mortgagor, opposed the motion, arguing the sale was improvident.

The court granted the motion, holding that the mortgagor's equity of redemption was extinguished upon the completion of the power of sale.

As the plaintiffs had no greater interest in the land than the mortgagor, and an action for improvident sale sounds in damages rather than an interest in land, the CPL and judgment could not be maintained on title.

The applicant, a British Virgin Islands shell company, sought to recover assigned assets from the respondent.

Following a prior order by Justice Dunphy for the applicant to post $25,000 security for costs, the respondent moved to dismiss the application due to non-compliance.

The applicant cross-moved to vary the security amount to $8,000, claiming inability to post the original sum.

The court dismissed the applicant's motion to vary, finding insufficient evidence of inability to pay and a lack of due diligence in assessing financial capacity.

The court granted the respondent's motion, dismissing the application, emphasizing that the applicant's litigation risk outweighed the prejudice of dismissal, especially given the corporate nature of the parties and the token amount proposed.

No order as to costs was made.

ERM brought motions to consolidate four related actions arising from environmental contamination and a remediation agreement, and to strike the property owners' claims for contribution, indemnity, and nuisance.

The court dismissed the motion to consolidate, finding that the actions should be tried together to avoid prejudice to the plaintiffs' right to separate counsel and to prevent circumvention of limitation periods.

The court also dismissed the motions to strike, holding that the claims for contribution and indemnity were not premature given ongoing Ministry of the Environment involvement, and that it was not plain and obvious the nuisance claims would fail.