Marie T. Fortier

The court considered whether a construction lien action was properly set down for trial within the two-year period required by section 37(1) of the Construction Act, despite the use of the wrong court file number and style of cause in the trial record.

The defendant, MP Lundy Construction Inc., sought a declaration that the lien had expired and the return of security.

The plaintiff, KE Electrical Ltd., cross-moved to amend the court file number nunc pro tunc.

The court found the error to be an irregularity curable under Rule 2.01 of the Rules of Civil Procedure, relying on the Court of Appeal’s reasoning in Foran.

The defendant’s motion was dismissed and the plaintiff’s cross-motion was granted.

The defendants, two insurance companies, brought a motion under Rule 6.01 to have two bad faith actions heard together or one immediately after the other without a jury.

The plaintiffs opposed the motion, citing significant delay and distinct legal issues.

The court dismissed the motion, finding that the defendants' delay in bringing the motion was unacceptable and prejudicial to the plaintiffs, particularly given that one action was already scheduled for trial.

The court also noted that the issues, while related, were sufficiently discrete to proceed separately, and a decision in the more advanced action might resolve or narrow the other.

The defendants brought a motion to compel the plaintiff to attend defence medical examinations and to extend the time for serving expert reports.

The plaintiff opposed, arguing the defendants had no reasonable explanation for their significant delay in complying with the Rules of Civil Procedure and a consent timetable order.

The court applied the conjunctive test under Rule 53.08, which requires both a reasonable explanation for the failure and that granting leave would not cause non-compensable prejudice or undue delay.

The court found that the defendants' explanations, including a long-standing intention to obtain reports, misunderstanding of deadlines, and inadvertence over an eight-year period, did not constitute a reasonable explanation.

As the first part of the test was not met, the motion was dismissed, and the plaintiff was awarded costs.

The plaintiff corporation sought leave under Rule 15.01(2) for its officers and directors to represent it in the action, and also sought to amend the statement of claim to properly name the Attorney General of Canada as the defendant.

The court denied leave for the corporation to be represented by non-lawyers, finding the supporting materials inadequate and the proposed representatives not capable of comprehending the legal issues.

The court ordered the statement of claim to be amended to correctly name the Attorney General of Canada as the defendant.

The plaintiff sought leave to amend their Amended Statement of Claim to add particulars of the defendant minor's past antisocial behaviors, arguing relevance to the negligent supervision claim against the minor's parents.

The defendants opposed, arguing the proposed amendments constituted inadmissible similar fact evidence that would unduly complicate the litigation, prolong discovery, and invade the minor's privacy.

The court dismissed the motion, finding that the probative value of the proposed amendments was outweighed by the significant prejudice, complexity, and privacy concerns they would introduce, converting the trial into an inquiry about multiple past events rather than the specific altercation.

The defendant brought a motion seeking an order for the plaintiff, Rafik Yasso, to undergo independent medical examinations (IMEs) by a neuropsychologist and a physiatrist.

The plaintiff opposed, citing past negative experiences with IME scheduling and the triggering of his anxiety/PTSD.

The court found that the defendant had a procedural and substantive entitlement to these examinations.

Despite the plaintiff's past difficulties, the court determined there was no compelling reason preventing his participation and that the prejudice to the defendant in proceeding to trial without responding medical evidence outweighed the plaintiff's inconvenience.

The motion was allowed, and the plaintiff was ordered to attend the IMEs, with no costs awarded due to shared responsibility for the difficulties.

The plaintiff brought a motion for leave to amend her Amended Statement of Claim to re-add claims for aggravated damages and unpaid overtime wages, which had been previously removed by consent of her former counsel.

The defendant opposed, arguing abuse of process and non-compensable prejudice due to the expiry of limitation periods.

The court denied the motion, finding that allowing the amendments would constitute an abuse of process by resiling from a binding agreement and would cause non-compensable prejudice as the limitation period for the claims had expired.

The plaintiffs brought a motion for costs thrown away after the defendants served a Medicolegal File Review expert report in breach of Rule 53.03, just one week before the pre-trial and trial.

Although the defendants subsequently advised they would no longer rely on the report, rendering the substantive motion unnecessary, the plaintiffs sought costs for the wasted effort.

The court applied the three-component test for costs thrown away, finding that the plaintiffs' motion was reasonably necessary, the associated fees and disbursements were rendered useless, and the defendants' conduct occasioned these wasted costs.

The court awarded the plaintiffs $5,000 in costs.

The Plaintiff, W. James D. Helmer, brought a motion seeking leave to amend his Statement of Claim against Economical Mutual Insurance Company.

The proposed amendments sought to particularize claims of waiver, misrepresentation, and promissory estoppel, and to clarify the claim for breach of duty to act in good faith, related to an insurance policy's 6558 Extension.

Economical opposed, arguing non-compensable prejudice due to delay and that new claims were asserted outside the limitation period.

The court also addressed a preliminary objection to the defendant's affidavit evidence.

The motion was granted, finding no actual non-compensable prejudice and that the amendments did not constitute new causes of action, leaving the limitation period dispute for trial.

The respondent, William Fuhgeh, brought a motion to strike over 50 paragraphs from the applicants' affidavit and a portion of their Notice of Application in a vexatious litigant proceeding.

The applicants, Marie-Hélène Godbout and Marc Coderre, opposed the motion.

The court dismissed the motion, reiterating the principle that pre-emptive motions to strike affidavits are generally discouraged unless the material is clearly improper or would cause unreasonable effort/cost to respond.

The court deferred the questions of admissibility, weight, and relevance of the impugned evidence to the judge hearing the main vexatious litigant application.

The plaintiff, Khris Paquette, sought an interim order for occupancy of his deceased mother's property or, alternatively, interim support from her estate.

The deceased's will left no provisions for the plaintiff, naming her brother as the sole beneficiary and estate trustee.

The court found that while the deceased was not providing direct support immediately before her death, a moral obligation existed for the estate to provide support due to the plaintiff's disabilities and limited income.

The request for interim occupancy was denied due to the plaintiff's history of destructive behavior and inability to live alone, and the potential for dissipating the estate's main asset.

However, the court granted interim financial support of $200 per month, finding a demonstrated need despite the plaintiff's lack of specific evidence on the amount sought.

The defendant, University of Ottawa, brought a motion to dismiss a proposed class action for delay under section 29.1 of the Class Proceedings Act, 1992.

The action, commenced in May 2018, was subject to a mandatory dismissal date of October 1, 2021, due to transition provisions, as no certification motion had been filed nor a timetable agreed upon or ordered.

The plaintiff argued that settlement negotiations constituted steps to advance the proceeding and that promissory estoppel applied.

The court found that settlement negotiations do not satisfy the statutory requirements and that there was no evidence to establish promissory estoppel.

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

The defendant, Felicia Georgina Zigiris, brought a motion for costs after the plaintiffs discontinued their action against her.

The plaintiffs had alleged conspiracy, intentional infliction of mental distress, and intrusion upon seclusion.

The court found no bona fide cause of action against Ms. Zigiris, as the evidence presented (letters and an audio recording) did not substantiate the serious allegations of conspiracy or disclosure of health information.

The court struck inadmissible opinion and argument from the plaintiffs' affidavits.

Given the unsubstantiated and serious nature of the allegations, the court awarded costs to Ms. Zigiris on a substantial indemnity basis for the discontinued action and on a partial indemnity basis for the costs motion, rejecting the plaintiffs' prior settlement offer.

The plaintiff, 1778133 Ontario Inc. (RMI), brought a motion seeking leave to correct the defendant's name and amend its Statement of Claim to include allegations of improper backcharges, tender misrepresentations, and contractual interest on overdue amounts.

The defendant, Laurin Contracting Ltd., consented to the name correction but opposed the other amendments, arguing they introduced new causes of action outside the two-year limitation period.

The court granted leave to amend for the backcharges and misrepresentations, finding they merely clarified existing claims or provided further particulars based on the original factual matrix.

However, the amendment for contractual interest on overdue accounts was denied, as it constituted a new cause of action that was statute-barred, having been discovered outside the limitation period.

The plaintiff brought a motion seeking to consolidate or hear together two actions: a tort action arising from multiple motor vehicle accidents (MVAs) and an accident benefits (AB) action arising from one specific MVA.

The plaintiff also sought leave to amend the statement of claim and extend time to set down the tort action, which were unopposed and granted.

A preliminary issue regarding the admissibility of affidavit paragraphs containing without prejudice communications from mediation was resolved by striking the paragraphs.

The court found that the gateway criteria under Rule 6.01 for hearing actions together were met, as the tort injuries and SABS entitlement arose from the same MVA.

However, after balancing factors such as the presence of a jury notice in one action but not the other, the differing stages of readiness, the significant delay an order would cause to the AB action, the distinct legal issues, and the lack of clear cost or time savings, the court dismissed the plaintiff's motion to have the actions heard together or one after the other.

The defendants, Shukri Ali Ali and The Commonwell Mutual Insurance Group, brought a motion to dismiss the plaintiff's action for delay pursuant to Rule 24 of the Rules of Civil Procedure.

The plaintiff, Yassin Aden Osman, did not oppose the motion and failed to appear.

The court found that the plaintiff's default was intentional and contumelious, demonstrating disrespect for the court process through serial violations of court orders and non-attendance.

Additionally, the delay was found to be inordinate and inexcusable, giving rise to a substantial risk that a fair trial would not be possible, particularly due to the loss of witnesses and inability to inspect the vehicle.

The court granted the motion, dismissing the action against all defendants and awarding costs to the moving defendants.

The plaintiff brought a motion to set aside a Registrar's order that dismissed the action for delay under Rule 48.14 of the Rules of Civil Procedure.

The defendants opposed the motion, arguing the plaintiff had abandoned the action and that reinstatement would be prejudicial.

The court granted the plaintiff's motion, finding an adequate explanation for the litigation delay (counsel's illness), inadvertence in missing the deadline, and that the motion to set aside was brought promptly.

While acknowledging presumptive prejudice due to the passage of time, the court applied a contextual approach, emphasizing the preference for resolving matters on their merits, especially when delay is due to counsel's error.

The action was allowed to proceed, and a timetable was ordered.

The defendants, EBC Inc. and Guarantee Company of North America, brought a motion for security for costs against the plaintiff, Bolton Mechanical Inc., in a "bond action" that was substantively duplicative of a prior "lien action." In the lien action, security for costs had already been ordered against Bolton due to insufficient assets.

The court dismissed the current motion, finding that the issues added by the bond action were insignificant and that the defendants' delay in bringing the motion was tactical, amounting to a collateral attack on the prior order.

This was a pleadings motion in a wrongful dismissal and libel action where the defendant, Yves Besner, sought to strike portions of the plaintiff's reply.

The defendant argued that the impugned paragraphs, which introduced details about the plaintiff's prior employment with Besner's former company and its bankruptcy, were irrelevant, unresponsive to the statement of defence, and contravened Rules 25.11 and 25.08 of the Rules of Civil Procedure.

The court found that the allegations were indeed irrelevant to the claims, not responsive to the defence, and improperly attempted to raise new grounds of claim in a reply rather than through an amendment to the statement of claim as required by Rule 25.06(5).

The court also noted that allowing such pleadings would unnecessarily expand the scope and cost of litigation and found them to be scandalous.

The motion to strike was granted.

The defendants, Carleton University and the Steering Committee, brought motions for security for costs against the plaintiff, Wilson, Young & Associates Inc., under Rule 56.01(1) of the Rules of Civil Procedure.

The court dismissed both motions.

Carleton failed to establish "good reason to believe" the plaintiff had insufficient assets.

While the Steering Committee satisfied the condition of multiple proceedings for the same relief, its motion was dismissed due to undue delay and resulting prejudice to the plaintiff, and lack of a reasonable explanation for the delay.