Michael G. Emery

The plaintiff estate sought leave to amend its statement of claim to add specific statutory particulars, including sections of the Statute of Frauds and other legislation, to support its claim for an interest in property.

The defendants opposed, arguing the amendments constituted new claims barred by a limitation period.

The court granted the motion, holding that the proposed amendments merely particularized existing factual allegations and did not introduce new causes of action, thus not being statute-barred.

The applicants, members of a church congregation, brought a motion to strike portions of affidavits filed by the respondent directors and other congregation members in an underlying application.

The application seeks to determine corporate membership, election of directors, and leave for a derivative action against current directors of Kingdom of Heaven Embassy Ministries Inc. The court considered Rules 25.11 and 39.01(5) of the Rules of Civil Procedure.

The court granted the motion in part, striking numerous paragraphs from the respondents' affidavits that were deemed irrelevant, scandalous, or vexatious, particularly those impugning the character or conduct of the former pastor, Mr. Somers.

Leave was granted for the respondents to file amended affidavits.

Kimberly DeBon, a teacher, sued Hillfield Strathallan College (HSC) for constructive dismissal, alleging a poisoned work environment due to marking disputes, lack of accommodation, and property tampering.

HSC moved for summary judgment to dismiss the action.

The court applied the two-part test for constructive dismissal from Potter v. New Brunswick Legal Aid Services and the objective test for a poisoned workplace from Shah v. Xerox Canada Ltd. The court found no evidence that HSC's conduct amounted to a substantial breach of the employment contract or created a poisoned work environment.

The individual grounds for constructive dismissal were not established, nor was a causal link between earlier events and the resignation.

The motion for summary judgment was granted, and the action was dismissed.

The plaintiff corporation, 1316223 Ontario Inc. (operating as 1,000,000 Comix), brought a motion for the interim recovery of inventory from the defendant, Kostas Giancoulas, or, in the alternative, for its preservation.

The defendant brought a cross-motion for a mandatory order to return inventory to him, asserting personal ownership and seeking to pierce the corporate veil.

The court dismissed the plaintiff's motion for interim recovery due to insufficient description and valuation of the property.

The defendant's cross-motion was also dismissed, as he failed to establish a strong prima facie case for ownership or grounds to pierce the corporate veil.

However, the court granted the plaintiff's alternative request for an interim preservation order, requiring the defendant to preserve all inventory in his possession pending trial, recognizing the significant financial claims against the business.

The plaintiff, Pelivan Muscaj, brought a motion under Rule 37.14 to set aside a registrar's order dismissing his action for delay, issued due to failure to set the action down for trial by the deadline under Rule 48.14.

The court applied the four-part Reid factors (satisfactory explanation for delay, intention to prosecute, timeliness of motion, and prejudice to defendant) using a contextual approach.

The court found the plaintiff failed to provide a satisfactory explanation for the 17-month litigation delay and did not offer satisfactory evidence of a continuing intention to prosecute the action diligently.

Furthermore, the plaintiff did not demonstrate that the defendant would not suffer significant prejudice.

Consequently, the motion to set aside the dismissal was denied.

The moving defendants sought an order for security for costs against the Estate of Gaetano Lo Faso under Rule 56.01(1)(d), arguing the Estate was a nominal plaintiff due to its status as a section 38 plaintiff under the Bankruptcy and Insolvency Act and its lack of assets.

The court dismissed the motion, finding that the Estate, as the sole judgment creditor pursuing a claim assigned by the trustee, had a substantial interest in the litigation and was not a nominal plaintiff.

The court also considered access to justice, noting that denying the Estate the right to litigate due to lack of assets would be unjust.

Nadia Minetto, an accounting manager, defrauded her employer, Wescom Solutions Inc. (WSI), by using its corporate credit card to purchase Apple products and reselling them.

Gabriel Fung, through his businesses GF International and Plus One Solutions, purchased over 10,000 Apple products from Minetto for $5.2 million in cash.

WSI obtained a consent judgment against Minetto and brought an action against Fung and his entities, alleging knowing receipt or wilful blindness to the fraudulent nature of the goods.

The court found that Fung was wilfully blind to the fact that the Apple products were stolen or fraudulently obtained from March 30, 2012, onwards.

Judgment was granted against Fung and his businesses for $5,094,674.72, plus interest, with a corresponding crossclaim for contribution and indemnity against Minetto.

The defendants, Sharon Gooden-Allen and Desmond Allen, defaulted on a second charge on their property, which was subsequently transferred from Surrinder Jass to Sean Wilson.

Wilson then entered an Agreement of Purchase and Sale (APS) with Sean Brown.

The Allens challenged the validity of the assignment and the propriety of the sale, bringing a motion to stay the APS.

Wilson brought a cross-motion to have an order to continue the action made *nunc pro tunc*.

The court found the assignment of the charge to Wilson to be valid and the APS bona fide, dismissing the Allens' motion to stay the sale.

Wilson's motion for a *nunc pro tunc* order to continue was granted, allowing him to enforce the judgment and exercise his rights as chargee in possession.

The defendants Robert Stewart and Indicom Appraisal Associates Ltd. brought a motion for summary judgment to dismiss the plaintiffs' action.

The plaintiffs, Correct Building Corporation and Correct Group Inc., claimed damages under various causes of action, including civil conspiracy, negligent or fraudulent misrepresentation, negligence, unlawful interference with economic relations, and inducing breach of contract, stemming from an appraisal of the Allandale Station lands prepared for the City of Barrie.

The court dismissed the claims for civil conspiracy and negligent or fraudulent misrepresentation, finding no genuine issue for trial.

However, the court found genuine issues requiring a mini-trial for the remaining claims (negligence, inducing breach of contract, wrongful interference with economic relations) concerning the limitation period and the enforceability of the Preliminary Agreement, particularly regarding the role of an agent and the impact of environmental/archaeological issues on property value.

The third party insurer, CAA, brought a motion for summary judgment to determine if the defendant driver, Jeffrey Sorto Torres, was in possession of his father's (Victor Sorto Rivera) vehicle with or without consent at the time of a motor vehicle accident.

The determination would affect Victor's vicarious liability under the Highway Traffic Act and Wawanesa Mutual Insurance Company's uninsured motorist coverage.

The court found that Victor had given implied consent for Jeffrey to possess the vehicle, primarily due to Jeffrey being left in charge of the household and his autistic brother, and the accessibility of car keys.

Consequently, CAA's motion for summary judgment to dismiss the action against Victor Rivera was dismissed.

Maple Trust Company, a non-party, successfully moved to vary a Mareva order and subsequently sought costs.

The Plaintiff, Trade Capital Finance Corp., opposed the costs award, arguing for no costs or a significant reduction due to the novelty of the legal point involved in the motion.

The court acknowledged the novelty of the issue but determined that a complete denial of costs was inappropriate.

Applying principles from various precedents, the court awarded Maple Trust Company reduced costs, balancing the novelty of the legal question with the need to partially indemnify the successful party.

This endorsement addresses scheduling and the presiding judge for summary judgment motions brought by two defendants, Frank Zito and Alan Keery.

The judge, appointed under Rule 37.15 to hear all motions in the action, extended a deadline for one defendant's materials and established a new timetable for the motions.

However, citing policy considerations akin to those in Rule 50.10(1) and the Court of Appeal's decision in Royal Bank of Canada v. Hussain, the judge declined to hear the summary judgment motions because the plaintiff did not provide written consent as required by Rule 37.15(2) for a Rule 37.15 judge to preside over a trial-like proceeding.

The judge will continue to hear procedural motions in the action.

Khatija Khatri, successful in an application to discharge instruments from her property title, sought substantial indemnity costs.

Talat Khan, the respondent, opposed, citing Khatri's delay and uncooperative conduct, and the reinstatement of a Writ of Seizure and Sale in a related action.

The court awarded Khatri substantial indemnity costs from the date of her offer to settle, acknowledging her success on the application.

However, the quantum was reduced due to both parties' litigation conduct and the applicant's significant delay in pursuing the application.

The final costs award of $33,206.33 was stayed pending the determination of costs in a related "Brampton action."

Her Majesty the Queen in Right of Ontario (HMQ) sought an order to enforce an agreement between counsel to delay examinations under Rule 39.03 pending a motion to quash summonses, or alternatively, to stay the summonses.

The court applied the RJR MacDonald test for a stay, finding a serious issue to be tried regarding the quashing of summonses and the standing of HMQ/OLG to quash summonses for unrepresented witnesses.

The court determined that proceeding with examinations would cause irreparable harm to HMQ's legal interests by rendering the motion to quash moot.

The balance of convenience favoured HMQ, and the motion to stay the summonses was granted.

The defendant, Walmart Canada Corp., brought a motion for leave to appeal an order by Justice Barnes that dismissed Walmart's motion for summary judgment.

Justice Barnes had found a genuine issue requiring a trial regarding the plaintiff's slip and fall claim and declined to use enhanced fact-finding powers.

The current court, presided over by Emery J., dismissed Walmart's motion for leave to appeal, finding no conflicting decisions or reason to doubt the correctness of Justice Barnes' order.

The court also determined that the issues raised did not transcend the private interests of the parties to become a matter of public importance, thus failing to meet the strict test for leave to appeal under Rule 62.02(4).

The respondent, Karen Wharry, brought a motion under Family Law Rule 25(19) to change a final order regarding an equalization payment, alleging a mathematical miscalculation.

The applicant, John Wharry, opposed, arguing the court was functus officio as the order had been issued and entered, and previously appealed.

The court found it was functus officio, as the requested change was a conceptual legal error, not a clerical or mathematical mistake falling within the narrow exceptions to the functus officio principle or the scope of Rule 25(19).

The motion was dismissed for lack of jurisdiction.

The court assessed costs following motions heard on March 13, 2017.

Both parties filed costs submissions, with Mr. Hill seeking substantial indemnity and Ms. Hill seeking partial or substantial indemnity.

The court applied the fundamental objectives of costs rules from Fong v. Chan and the fairness principle from Boucher v. Public Accountants Council.

Considering Family Law Rule 18 regarding offers to settle, the court found Mr. Hill to be the successful party, despite his offer not fully meeting the criteria for full recovery under Rule 18(14).

Costs were fixed at $6,500, all-inclusive, payable by Ms. Hill from her share of the matrimonial home proceeds.

This is a costs endorsement following the plaintiff's successful opposition to the defendants' motion to set aside a Certificate of Pending Litigation (CPL).

The court addressed costs for two attendances: an adjournment on February 28, 2017, and the substantive motion hearing on March 10, 2017.

For the February 28th attendance, the court declined to award costs due to conflicting submissions and insufficient information regarding the two-hour adjournment process.

For the March 10th motion, where the plaintiff successfully preserved its CPL, the court applied the general rule that costs follow the event.

The plaintiff was awarded partial indemnity costs totaling $7,116.10, inclusive of fees and disbursements, payable forthwith by the defendants, jointly and severally.

This endorsement assesses costs following the plaintiff's acceptance of the defendants' offer to settle a motor vehicle accident claim for $34,000 plus partial indemnity costs.

The plaintiff sought over $180,000 in fees and disbursements.

The court applied Rule 58.06, emphasizing fairness, reasonableness, and proportionality.

It found the plaintiff's initial damage claims excessive, particularly for income loss and housekeeping expenses, which lacked strong evidentiary support.

The court significantly reduced the claimed costs, excluding certain expert reports and medical illustrations, and applying a proportionality reduction to the remaining fees and disbursements.

The plaintiff, Trade Capital Finance Corp., obtained a Mareva injunction over the assets of certain defendants, including The Cash House Inc. (TCHI), in a fraud action.

Maple Trust Company, a non-party, had obtained writs of seizure and sale against TCHI for unrelated costs awards.

Maple Trust moved to vary the Mareva injunction to permit it to seize funds from one of TCHI's bank accounts.

The court granted the motion, holding that a Mareva injunction is not proprietary in nature and does not give the plaintiff priority over other bona fide creditors enforcing legal process.

The injunction merely restrains the defendant from disposing of assets, not preventing lawful seizure by other creditors.