Michael P. McGraw

The plaintiff brought a motion for alternative security, requesting that the proceeds of the sale of a property be paid into court pending the disposition of the action, after her motion for a Certificate of Pending Litigation was dismissed.

The plaintiff relied on section 103(6) of the Courts of Justice Act and Rule 45.02 of the Rules of Civil Procedure.

The court dismissed the motion, finding no statutory authority to order security where a CPL had not been granted, and concluding that the plaintiff did not meet the 'specific fund' threshold under Rule 45.02 because she was advancing a claim for damages rather than a legal right to the specific fund.

The Plaintiff sought costs for a motion to compel discovery answers, which was ultimately resolved through case management rather than judicial determination.

Despite the settlement, the court found exceptional circumstances warranted a costs award due to the Defendants' conduct in unnecessarily prolonging the motion and delaying answers to refusals.

The court also affirmed the principle that costs are available where counsel acts pro bono.

The Plaintiff was awarded $5,000 in costs on a partial indemnity scale.

This endorsement addresses a costs dispute following the settlement of a motion brought by Dufferin Wind Power Inc. (DWP) to compel examinations in aid of execution and amend writs.

The Debtors (Farshad and Fari Davoodian) had failed to attend two scheduled examinations.

Despite the motion being settled on all other issues, the Master found exceptional circumstances to award costs, primarily due to the Debtors' conduct which unnecessarily prolonged the proceedings.

DWP sought $8,588.47, and the Debtors sought $6,072.34.

The Master awarded DWP $4,000 in costs, payable by the Debtors.

The plaintiffs brought a motion to set aside a Registrar's order dismissing their action for delay, which had been issued over six years prior.

The court applied the four-factor test from *Reid v. Dow Corning Corp.* to determine whether to exercise its discretion to set aside the dismissal.

While the court found that the plaintiffs provided a reasonable explanation for the delay, largely due to their former lawyer's inaction and alleged misrepresentations, it concluded that the lawyer's conduct amounted to more than mere inadvertence and potentially negligence.

Ultimately, the court prioritized the principle of finality in litigation and the defendants' right to rely on the long-standing dismissal, especially given the plaintiffs' potential alternative remedies against their former counsel.

The motion to set aside the dismissal was dismissed.

This costs endorsement followed a motion where the Plaintiffs were granted leave to amend their Statement of Claim, a motion unopposed by the Defendants except on the issue of costs.

The Defendants sought costs on a substantial or partial indemnity basis, while the Plaintiffs sought partial indemnity costs.

The court found that the Plaintiffs' conduct, characterized by delay and inadvertence, caused the Defendants to incur unnecessary costs, but did not warrant substantial indemnity.

The Master determined that the Defendants' claimed hours and quantum were disproportionate given the nature of the amendments.

Ultimately, the Plaintiffs were ordered to pay fixed costs of $7,000 to the Defendants.

This decision addresses two motions brought by the Defendants to compel answers to refusals arising from examinations for discovery and cross-examinations on affidavits filed for a security for costs motion.

The court provided guidance on the scope of cross-examination on affidavits, particularly concerning the financial disclosure obligations of shareholders of corporate plaintiffs claiming impecuniosity.

The Master made specific rulings on numerous disputed refusals, balancing relevance and proportionality, and ordered the Shareholders to provide additional information and documents, while adjourning the discovery refusals motion.

The defendant brought a motion seeking additional security for costs on the eve of trial, arguing that the plaintiff's pleadings amendments caused unforeseen and material increases in costs.

The court dismissed the motion, finding that the defendant failed to provide evidence of how the additional costs were incurred or that they resulted from the amendments.

The court also noted the defendant's delay in bringing the motion, concluding that the interests of justice favored allowing the plaintiff to proceed to trial without the disruption of a last-minute security order.

The plaintiff brought a motion to compel the City of Toronto's representative to re-attend an examination for discovery and to answer various undertakings and refusals, alleging improper conduct by the City's counsel.

The Master found no misconduct by the City's counsel that would render the examination futile.

However, applying principles of proportionality and noting that some refusals were improper, the Master ordered the City's representative to re-attend virtually for 30 minutes to answer follow-up questions and directed the City to provide specific clarifications regarding winter maintenance records and procedures.

The defendants in a franchise dispute brought a motion to compel the plaintiff to provide further particulars and to strike numerous paragraphs of the plaintiff's amended statement of claim.

The plaintiff, a former franchisee of a dog daycare business, alleged that the defendants conspired to manufacture grounds to terminate the franchise agreement and take over the location.

The Master dismissed the majority of the defendants' demands for particulars, finding they improperly sought evidence rather than material facts required for pleading.

The Master also declined to strike most of the challenged paragraphs, though a few specific paragraphs and inflammatory words were struck with leave to amend.

The plaintiff brought an ex parte motion for Certificates of Pending Litigation, which resulted in an interim order preventing the defendants from encumbering or transferring the properties.

After the plaintiff's related injunction motion was dismissed, the plaintiff discontinued the action and abandoned the CPL motion.

The defendants sought costs for the abandoned CPL motion.

The court awarded the defendants costs fixed at $6,000, finding that the plaintiff's conduct unnecessarily lengthened the proceeding, though it did not warrant substantial indemnity costs.

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.

The plaintiff brought a motion for leave to issue a Certificate of Pending Litigation (CPL) regarding a property she had agreed to purchase from the defendants.

The plaintiff alleged breach of fiduciary duty and unjust enrichment, claiming a constructive trust over the property.

The court found that while the plaintiff established a triable issue regarding a constructive trust, it was not just and equitable to grant the CPL because the property was not unique, damages were an adequate remedy, and both parties wished for the property to be sold.

The motion was dismissed without prejudice to the plaintiff seeking alternative security.

Following the successful motion by the plaintiff to set aside a registrar's dismissal order, the parties could not agree on costs.

The defendant argued that no costs should be awarded because the plaintiff was granted an indulgence due to her former counsel's negligence.

The court held that while the plaintiff received an indulgence, the defendant's unreasonable opposition and failure to accept a reasonable offer to settle warranted a costs award.

The plaintiff was awarded $6,000 in costs on a partial indemnity scale.

The plaintiffs were completely successful on a motion for leave to amend their Statement of Claim.

Both parties sought costs of the motion.

The defendant argued that the plaintiffs received an indulgence and should not be awarded costs, or should pay the defendant's costs.

The court found that while the amendment was an indulgence, the defendant raised multiple meritless arguments that unnecessarily lengthened the proceeding.

The court awarded costs to the plaintiffs fixed at $7,000.

The plaintiff brought a motion to amend her Statement of Claim to add a winter maintenance contractor as a defendant to her slip and fall action against the municipality.

The motion was brought after the expiry of the presumptive two-year limitation period.

The court found that the presence of snow and ice on the municipal sidewalk was a trigger that should have prompted the plaintiff to inquire about a maintenance contractor.

Because the plaintiff failed to make any such inquiries, she did not exercise reasonable diligence, and the claim against the contractor was statute-barred.

The motion was dismissed.

The plaintiff brought a motion to validate service of her Statement of Claim after 19 months of unsuccessful attempts to serve the defendants.

The motion was resolved when the defendants' counsel accepted service prior to the third return date.

The parties could not agree on costs.

The court found that the defendants' conduct made the motion necessary and unnecessarily lengthened the proceeding.

The court awarded the plaintiff costs fixed at $2,500.

The plaintiffs were successful on a motion for leave to amend their Statement of Claim to add their automobile insurer as a defendant.

The plaintiffs sought costs of the motion on a partial indemnity scale, while the insurer argued no costs should be awarded.

The court found no reason to depart from the general rule that costs follow the event, noting the insurer's opposition unnecessarily added to the costs of the proceedings.

The court awarded the plaintiffs costs fixed at $6,500, reducing the requested amount to reflect divided success on some issues and procedural delays caused by the plaintiffs.

The plaintiff sought costs of $13,983.34 on a partial indemnity scale following a motion to compel answers to undertakings and refusals, and a dismissed motion to examine a second representative.

The defendant sought costs of $26,144.52.

The court found the refusals motion was necessary to progress the litigation, but noted the plaintiff's requests were overbroad.

Balancing the divided success and the conduct of both parties, the court awarded the plaintiff costs fixed at $3,500.

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.