Megan Marrie

The plaintiffs in a professional negligence action against former accountants moved for leave to conduct an examination for discovery after the action had already been set down for trial.

The court rejected a rigid requirement that a moving party must show a substantial or unexpected change in circumstances under rule 48.04(1), holding instead that the just order in the circumstances governs.

The court emphasized the importance of pre-trial disclosure, the absence of any express waiver of discovery rights, and the responding defendant's default in serving an affidavit of documents.

Because the action was not trial-ready and no prejudice or wasted court time would result, leave to examine the individual defendant for discovery was granted.

The court addressed costs relating to a motion for leave in a construction litigation matter involving a contractor, architect, and other construction parties.

On consent of the parties, the court fixed the costs of the motion for leave.

The plaintiff was ordered to pay $6,000 plus HST to one defendant and $6,000 plus HST to the remaining defendants.

The costs were ordered payable in the cause of the appeal.

The defendant trustee in bankruptcy moved for security for costs against a corporate plaintiff under Rule 56.01(d) of the Rules of Civil Procedure, alleging the plaintiff lacked sufficient assets in Ontario to satisfy a potential costs award.

The court held the defendant established good reason to believe the plaintiff had insufficient assets, triggering the second stage of the analysis.

However, the plaintiff demonstrated sufficient assets through equity in the shareholder’s condominium and ownership of moulds with significant value.

Alternatively, the court held that even if the plaintiff were impecunious, it would be unjust to order security for costs where the alleged wrongful conduct of the defendant contributed to the plaintiff’s financial circumstances and such an order could prevent the action from proceeding.

The plaintiff, who was previously investigated for stock fraud and entered into a settlement agreement with the Ontario Securities Commission, sued 67 defendants for malicious prosecution, negligent investigation, and other torts.

Ten motions were brought by 64 defendants to strike the pleadings and dismiss the actions.

The court dismissed the action against the Attorney General of Ontario because the malicious prosecution claim could not succeed, as the criminal proceedings were stayed pursuant to a settlement and thus not terminated in the plaintiff's favour.

The actions against the remaining moving defendants were dismissed as an abuse of process because they attempted to re-litigate facts already settled or judicially determined in prior proceedings.

Limited partners in a real estate partnership commenced an action alleging misconduct by accountants, a lawyer, and others in relation to unauthorized corporate changes and mortgages affecting partnership property.

After the action had been set down for trial, certain defendants indicated they would bring motions for summary judgment arguing the plaintiffs lacked standing because the alleged losses were those of the partnership.

The plaintiffs sought leave under Rule 48.04(1) of the Rules of Civil Procedure to bring a cross‑motion for summary judgment in response.

The court considered modern principles favouring broad access to summary judgment following Hryniak v. Mauldin and whether permitting the motion would promote a proportionate and efficient resolution.

Given that the defendants’ proposed motions could require extensive evidentiary responses and potentially raise broader issues, the court concluded that allowing the plaintiffs to bring their own motion could streamline the litigation.

Leave was therefore granted.

Following a motion in which defendants sought leave to issue a third party claim against two proposed third parties, the court dismissed the motion on the basis that no viable cause of action was disclosed and the claim was barred by the Limitations Act.

The successful proposed third parties sought partial indemnity costs of $16,174.22.

The moving defendants argued the amount was excessive and proposed $5,000 all inclusive.

Considering the factors under Rule 57.01 of the Rules of Civil Procedure and the relatively narrow issues involved, the court reduced the requested amount and fixed costs payable to the successful parties.

The defendants brought motions for summary judgment seeking dismissal of the plaintiff’s construction negligence action on the basis that it was statute-barred under the two-year limitation period in the Limitations Act, 2002.

The plaintiff alleged water infiltration problems in a condominium project caused by deficiencies in an exterior acrylic stucco system supplied and installed by the defendants and designed by the architect.

The defendants argued the plaintiff knew of the loss and potential responsible parties in 2005–2006 and therefore the limitation period expired before the action was commenced in June 2008.

The court held that the discoverability issue was highly contextual and that the plaintiff’s ongoing investigation into the source of the leaks raised a genuine issue requiring trial.

Summary judgment was therefore inappropriate and the limitation issue must be determined at trial.

The moving defendants sought leave to issue a third party claim for contribution and indemnity against an architect and related firm in a construction dispute involving alleged deficiencies in a cottage built in the early 1990s.

The proposed third parties argued the claim was unjustified and barred by the Limitations Act.

The court held that any alleged negligence by the architect would have been known years earlier and was therefore statute‑barred.

The court also found no evidentiary basis for a viable negligence claim against the architect on the record.

Leave to issue the third party claim was denied.

The appellant, a defendant and plaintiff by counterclaim, appealed a Master's order granting the respondent architect leave to bring a motion for security for costs after the action was set down for trial, and ordering the appellant to post $115,000 in security.

The Superior Court dismissed the appeal, finding no error in the Master's decision to grant leave, her conclusion that the counterclaim for $5 million in lost profits was not inextricably linked to the defence against the architect's claim for unpaid fees, or her assessment of the quantum of security.

A court-appointed receiver-in-aid-of-execution sought an advance order immunizing it from personal liability for costs in litigation intended to recover assets allegedly concealed by the judgment debtor through family members, corporations, and third parties.

The receiver argued that the receivership estate lacked sufficient assets to cover potential adverse costs and that denying immunity would prevent the recovery action from proceeding, undermining access to justice.

The court reaffirmed the general rule that receivers and trustees who initiate litigation do so at their own risk unless indemnified by estate assets or creditors.

The proposed undertaking by the judgment creditor was found insufficient and unsupported by evidence of financial capacity.

The court held that the case did not present exceptional circumstances warranting a departure from the “loser pays” principle and refused to create a novel category of advance cost immunity orders.

The defendant architect brought a motion for summary judgment to dismiss a negligence action arising from alleged design defects in a residential building.

The plaintiff argued the defect was not discoverable until a precast concrete unit fell from the building in 2008 and that the claim was therefore timely under the discoverability principle.

The court held that the architectural services agreement contained a contractual limitation clause providing that the architect’s liability ceased six years after substantial performance of the work or another specified triggering event, whichever occurred first.

Substantial performance occurred in 1994 and the action commenced in 2009, well beyond the contractually agreed limitation period.

The court found the clause clear, enforceable, and properly brought to the plaintiff’s attention, and granted summary judgment dismissing the action.

Following an order striking the plaintiff’s action without leave to amend, the defendants sought costs for both the struck 2012 action and an earlier withdrawn 2008 action.

The self‑represented plaintiff objected to the amounts as excessive but provided no particulars.

The court held that the hourly rates charged by counsel were reasonable and could be awarded on a partial indemnity basis, and alternatively justified substantial indemnity costs given the plaintiff’s allegations of fraud and conspiracy and his abuse of the court’s process.

Considering the factors under Rule 57.01(1), the court fixed costs for the defendants for both actions.

The moving parties sought an order discharging or limiting a Certificate of Pending Litigation registered by the responding parties in relation to a recreational time‑share cottage development.

The responding parties alleged entitlement to interval ownership in one of the cottages pursuant to contractual arrangements connected to the sale and redevelopment of their former property.

Applying the equitable factors governing discharge of a certificate under s. 103(6) of the Courts of Justice Act, the court found that the claims raised a triable issue regarding an interest in land and that damages alone would not adequately compensate the responding parties.

The court concluded that the moving parties had not established sufficient grounds to discharge the certificate.

The certificate remained registered, though the court indicated it could potentially be confined to the specific intervals in dispute.

The moving defendants sought to strike the plaintiff’s statement of claim alleging fraud, conspiracy, abuse of process, and related torts arising from earlier bankruptcy litigation.

The claim effectively alleged that opposing counsel, the bankruptcy trustee, and others fabricated evidence that led to an adverse judgment in prior proceedings.

The court held that the pleading failed to meet the requirement that fraud be pleaded with particularity and that the action constituted an impermissible collateral attack and relitigation of issues already decided and upheld on appeal.

The doctrines of issue estoppel and abuse of process barred the claim.

The court struck the statement of claim without leave to amend and awarded costs.

The appellant appealed a motion judge's decision refusing to permit the addition of lawyer defendants to a statement of claim.

The motion judge had determined the proposed claims were not tenable at law.

The Court of Appeal allowed the appeal, finding that the proposed fresh as amended statement of claim, which alleged the lawyers provided incorrect advice regarding a share repurchase and litigation exposure, disclosed a tenable cause of action.

The Court also noted the motion judge improperly engaged in an assessment of the merits rather than solely assessing whether the claims were tenable at law.

The City of Hamilton commenced an action against the architect and general contractor of an arena project for construction defects.

After years of inaction, the action was dismissed for delay by the registrar when the City's counsel inadvertently failed to attend a status hearing.

The City's motion to set aside the dismissal was denied by the motion judge.

On appeal, the Court of Appeal upheld the dismissal, finding that the 15-year delay was inordinately long, the critical five-and-a-half-year period of inaction was unexplained, and the delay caused actual prejudice to the defendants due to the unavailability and faded memories of key witnesses.

The individual defendants, who were architects and a contractor, sought leave to appeal a motions judge's decision refusing to grant summary judgment dismissing the claims against them personally.

The plaintiffs had sued the individuals despite the relevant contracts being with their respective corporations.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's application of the summary judgment test.

The court noted that the motions judge allowed the claims to proceed based on 'just barely some factual basis' rather than requiring a genuine issue for trial, and that the scope of personal liability for corporate directors and employees is a matter of public importance.

The appellant parent appealed a school board's decision to place her child, who has autism and significant behavioural needs, in a Special Education Class (Intensive Support Program).

The parent sought a placement in a Regular Class with Resource Withdrawal.

The Tribunal found that the student's aggressive behaviours posed a safety risk and that the student had not made noticeable gains in a Regular Class setting.

The Tribunal concluded that a full-time Intensive Support Program placement was in the student's best interests to provide a structured environment, reduce anxiety, and address behavioural and academic needs, and dismissed the appeal.