Michael P. McGraw

The plaintiffs brought a motion for leave to issue a Certificate of Pending Litigation (CPL) concerning an agreement to purchase over 800 acres of land from the defendant.

The dispute arose from an alleged misrepresentation regarding the exact acreage of the land and issues related to a historic ship located on the property.

The court found that there was a triable issue regarding the plaintiffs' claim to an interest in the land, which is the first threshold for granting a CPL.

However, after balancing the equities, the court exercised its discretion to deny the CPL.

The denial was primarily based on the plaintiffs' significant delay in bringing the motion (almost three months after the scheduled closing date and awareness of a third-party purchaser), the existence of a third-party agreement for the sale of the land, and the greater harm and inconvenience that granting the CPL would cause to the defendant, effectively acting as an injunction and impeding the sale of a distressed asset.

This is a costs endorsement following motions to compel discovery answers.

The Plaintiff, Vanalt Electrical Construction, Inc. (VEC), sought costs for its motion, while the Defendants, Ozz Electric Inc. et al., sought costs or reservation.

The court awarded VEC $5,000 in partial indemnity costs, finding that the Defendants' conduct unnecessarily prolonged the discovery process and increased litigation expenses.

Costs related to 33 adjourned questions were reserved for future determination.

This endorsement addresses the costs of a motion brought by Metro Ontario Real Estate Limited ("Metro") to strike paragraphs from Hillmond Investments Ltd.'s ("HIL") Reply and Defence to Counterclaim.

The motion was settled on consent, with the issue of costs deferred.

Metro sought $10,944.63 on a partial indemnity scale, while HIL argued for no costs.

The Master found that HIL's refusal to engage in discussions regarding amendments until the day before the motion necessitated the motion and was the primary factor contributing to the costs incurred.

Considering the proportionality and the conduct of the parties, the Master awarded Metro fixed costs of $4,000.

This endorsement addresses the costs of a motion for security for costs, which was resolved on consent.

The Defendants, Mehran Amini and Hanif Joshaghani, sought $12,471.52 on a substantial indemnity basis, while the Plaintiff, 5001398 Ontario Corp., proposed $2,500.

The court found that exceptional circumstances warranted a costs award despite the consent resolution, as deferring costs facilitated settlement.

While acknowledging the Plaintiff's delay in agreeing to post security contributed to the litigation costs, the court declined to award substantial indemnity costs, finding the conduct did not meet the threshold for reprehensible behaviour.

The court also considered the Defendants' contribution to delay and the proportionality of counsel's docketed hours.

Ultimately, costs were fixed at $4,500 on a partial indemnity scale, payable by the Plaintiff to the Defendants.

The plaintiff moved to set aside a Registrar's order dismissing her action for delay.

The court considered the four factors from Reid v. Dow Corning Corp., finding that the plaintiff provided a satisfactory explanation for delay, largely due to her former counsel's misconduct and illness, and that the failure to set the action down was inadvertent.

The motion was brought promptly, and the defendant failed to demonstrate actual prejudice.

Emphasizing the principle that a client should not be irrevocably jeopardized by counsel's neglect, the court granted the motion to set aside the dismissal order, allowing the action to proceed to a determination on its merits.

Walsh Construction Company Canada (WCC) brought a motion to compel the Toronto Transit Commission (TTC) to produce approximately 1,600 documents over which TTC claimed litigation privilege.

The court applied the "dominant purpose" test for litigation privilege, conducting a contextual analysis of when litigation was reasonably contemplated and whether the documents were created primarily for litigation or for other purposes such as contractual claims review, project completion, or budget management.

The court found that while litigation was anticipated, many documents served multiple purposes, and TTC failed to establish dominant litigation purpose for a significant portion of the disputed documents.

The court ordered the production of most documents, with specific exceptions for those genuinely created for the dominant purpose of litigation or solicitor-client privilege, and provided directions for redactions.

The plaintiffs brought a motion for a status hearing under Rule 48.14(5) to prevent their action from being dismissed for delay.

The motion was opposed by the Wong Defendants.

The court found an acceptable explanation for the delay concerning claims related to OM Policies, citing the plaintiffs' engagement in preliminary motions and settlement discussions with OM Financial Inc. However, the court found no acceptable explanation for the delay regarding claims related to PPI Policies, where no steps were taken for over 4.5 years and the Wong Defendants were the sole remaining defendants for those claims.

Consequently, the court ordered that the action proceed with respect to the OM Policies but dismissed the claims related to the PPI Policies, establishing a new timetable for the remaining litigation.

The applicant, a beneficiary of a trust, brought a motion to compel the respondent trustee to produce 65 documents over which the trustee claimed solicitor-client and/or litigation privilege.

The court found that a trustee generally cannot claim solicitor-client privilege against a beneficiary for documents related to trust administration, unless the parties are in an adversarial relationship on a separate and distinct matter.

Litigation privilege was not established as the dominant purpose for creating the documents was not litigation.

The court ordered the production of most documents, with redactions for content unrelated to trust administration where an adversarial relationship existed.

The plaintiffs sought leave to amend their Statement of Claim to add their own automobile insurer, TD Insurance, as a defendant under the OPCF 44R Family Protection Endorsement, following an accident with an uninsured motorist.

The motion considered the application of the Limitations Act, 2002, to claims for indemnification against an insurer, specifically when the limitation period begins and if discoverability and due diligence apply.

The court granted leave to amend, finding triable issues regarding discoverability and due diligence, and that no non-compensable prejudice would result to TD Insurance, which had been involved in the plaintiffs' accident benefits claims since 2014.

RBC General Insurance Company ("RBC") brought a motion to set aside or stay two Writs of Seizure and Sale, totaling $17,387.70, obtained by Kuhansea Balasubramaniam (the "Insured").

The Writs arose from an Arbitration Order of the Financial Services Commission of Ontario ("FSCO") for income replacement benefits.

RBC argued that the amounts in the Writs were incorrect and that the License Appeal Tribunal ("LAT") had exclusive jurisdiction over the benefit quantum.

The Insured contended that RBC could not unilaterally reduce benefits and that the Master lacked jurisdiction to set aside the Writs.

The Master found that the Registrar's filing of the Arbitration Order was an administrative act, not an order subject to a Master's review under Rule 37.14(3).

Consequently, the Master lacked jurisdiction to set aside the Writs.

While acknowledging jurisdiction to stay the Writs under the Courts of Justice Act, the Master refused to do so, finding no oppressive, vexatious, or abusive conduct by the Insured in enforcing a statutory right.

The defendants brought a motion for security for costs against the plaintiff, a U.S. resident with no assets in Ontario, in a complex family dispute over trust funds.

The plaintiff claimed impecuniosity and that his action was not devoid of merit.

The court found that the plaintiff had not demonstrated impecuniosity with sufficient financial disclosure and that, while the merits were not decisive, they favored granting security due to prior releases.

The court ordered the plaintiff to post security for costs totaling $130,000 on a partial indemnity scale, balancing the plaintiff's access to justice with the defendants' protection against an unenforceable costs award.

The plaintiffs sought leave to amend their Amended Statement of Claim to include further particulars regarding the alleged involvement of the Guatemalan police and military in sexual assaults during forced evictions, in addition to private security personnel.

The defendants opposed, arguing the amendments constituted a new cause of action, were unduly delayed, and would cause prejudice.

The court found that the proposed amendments were particulars of existing negligence claims, not a new cause of action, and that no actual or presumed prejudice would result to the defendants.

Leave to amend was granted.

The defendants moved to dismiss the plaintiffs' action due to repeated non-compliance with numerous court orders, including failure to pay security for costs and outstanding costs awards.

The court dismissed Betty Dale's action, citing her blatant disregard for court orders and lack of participation.

The Estate of Sadie Moranis was granted a final conditional indulgence due to ongoing health issues of its representative, requiring compliance with specific orders by September 30, 2019, failing which its action would also be dismissed.

Betty Dale was ordered to pay $51,500 in total costs to the defendants.

The defendant brought a motion to dismiss the plaintiff's action for delay under Rule 24.01.

The plaintiff, a 71-year-old self-represented litigant, had experienced significant delays, including periods without counsel and difficulty obtaining her legal file.

The court found the overall delay inordinate but excused it, particularly the period since her second counsel's removal, due to her reasonable efforts to retain new counsel and her difficulties as a self-represented litigant.

The court also found that the plaintiff had rebutted the presumption of prejudice, as the defendant failed to establish actual prejudice.

The motion to dismiss was denied, but terms were imposed on the plaintiff to advance the action promptly.

This costs endorsement arose from a settled production motion and an unbrought security for costs motion.

The Plaintiff sought substantial or partial indemnity costs for the production motion, while the Defendant Province argued for costs to be reserved or a nominal partial indemnity.

The court found exceptional circumstances to award costs despite the settlement, primarily due to the Province's unresponsiveness and failure to meet deadlines, which caused the Plaintiff to incur unnecessary costs.

The Plaintiff's request for substantial indemnity was rejected, as was the Province's low offer.

The court fixed costs at $15,000 on a partial indemnity scale, payable by the Province to the Plaintiff within 30 days, finding this amount fair, reasonable, and proportionate.

A non-party, Dennis Cibulka, brought a motion to set aside a default judgment of foreclosure and to be added as a defendant in an action concerning a residential property he has occupied since 1959.

The court found that Cibulka was a necessary party to the action and that the interests of justice favored granting the relief sought.

The motion to set aside default judgment was made promptly upon Cibulka learning of it, there was a reasonable prospect of payment if the mortgage was enforceable, and significant net equity in the property would otherwise result in a windfall to the plaintiff.

The court granted the motion, adding Cibulka as a defendant, setting aside the default judgment, and awarded costs to Cibulka.

The Plaintiffs brought a motion for leave to amend their Statement of Claim to include claims based on an earlier 2013 agreement, in addition to the initially pleaded 2015 agreement, for the collection of outstanding invoices.

The Defendant opposed, arguing the amendments constituted a new cause of action after the limitation period and would cause irremediable prejudice.

The court found the proposed amendments arose from the same factual matrix, did not constitute a fundamentally different claim, and that the Defendant had notice of the facts.

The court also found no actual prejudice would result.

Leave to amend was granted.

The Plaintiffs brought a motion for leave to amend their Statement of Claim to add six new corporate and individual defendants (the "Proposed Defendants") and to advance claims for tracing remedies, unjust enrichment, and conversion.

The Proposed Defendants opposed the motion, arguing that the new claims were statute-barred by the Limitations Act, asserting that the Plaintiffs had actual knowledge or ought to have discovered the claims earlier.

The court found that the Plaintiffs did not have actual knowledge until receiving a second forensic report and that their diligence in waiting for this report was reasonable, thereby raising triable issues of fact and credibility regarding discoverability.

The court also determined that granting the amendments would not cause actual, non-compensable prejudice to the Proposed Defendants.

Leave to amend was granted, with the Original Defendants permitted to plead limitations defences.

The plaintiff, Jason Imola, brought a motion for leave to amend his statement of claim to add John Esteireiro as a defendant and assert claims for misrepresentation and intentional or unlawful interference with economic relations.

The proposed amendments arose from Mr. Esteireiro's alleged conduct during a transition period following an asset sale, including misrepresentations about the plaintiff's employment and directing him to conduct personal, unsupervised "grey market" trades.

The court granted leave to amend, finding the proposed claims legally tenable and arising from the same factual matrix, and that allowing the amendments would promote the convenient administration of justice without causing irremediable prejudice.

This endorsement addresses several refusals arising from examinations for discovery between the Toronto Transit Commission (TTC) and two of the Designers, WSP Canada Inc. and IBI Group Architects (Canada) Inc., in a complex construction litigation involving the Steeles West Subway Station project.

The court applied rules of discovery, relevance, and proportionality to compel answers or further productions regarding litigation privilege, evidence supporting delay allegations, reasons for not replacing a contractor, and clarification of legal positions on specifications.