Michael P. McGraw

The plaintiffs brought a second status hearing motion to extend the time to set their wrongful dismissal action down for trial.

The defendants opposed, arguing the action should be dismissed for delay after the plaintiffs missed the court-ordered set down date.

The court found the plaintiffs provided an acceptable explanation for the delay, noting that an intervening appeal by the defendants had significantly shortened the time available to complete mediation.

The court held that the plaintiffs' counsel reasonably relied on the defendants' apparent cooperation and that the defendants would suffer no actual prejudice if the action proceeded.

The motion to extend the set down date was granted.

The plaintiffs and defendants brought cross-motions for undertakings and refusals arising from examinations for discovery in an action for breach of a rental income guarantee program.

The court ordered the individual defendants to serve further and better affidavits of documents, including searches of relevant email addresses and phone numbers.

The court also ruled on numerous specific refusals from the examinations of several witnesses, applying principles of relevance and proportionality, and upholding claims of solicitor-client and litigation privilege where appropriate.

The plaintiffs brought a motion for leave to amend their statement of claim in a solicitor's negligence action to significantly increase their claim for damages based on a new expert report.

The defendants opposed the amendments, arguing the increase was frivolous and the apportionment of damages among multiple plaintiffs was improper.

The court granted leave for the quantum amendments, finding them legally tenable and within the existing factual matrix without causing non-compensable prejudice.

The proposed amendments regarding the apportionment of damages were adjourned to allow the parties further opportunity to resolve the issue.

The proposed intervenor, Friends of Shalom (FOS), brought a motion for leave to intervene as an added party in an action concerning the governance and charitable property of the Toronto Zionist Council (TZC) and its operation of Camp Shalom.

The plaintiffs consented to the motion, but TZC opposed it.

The court found that FOS satisfied the criteria under Rule 13.01, as it had an interest in the subject matter, could be adversely affected by a judgment, and shared common questions of law and fact with the parties.

The court granted FOS leave to intervene on specific terms to ensure its participation would be useful and not unduly delay or prejudice the proceedings.

The plaintiff brought a motion for leave to amend his Statement of Claim to pierce the corporate veil and hold the individual defendant personally liable for the corporate defendant's failure to pay commissions and other compensation.

The corporate defendant was in receivership.

The individual defendant opposed the amendments, arguing they were statute-barred and disclosed no reasonable cause of action.

The court granted the motion, finding that the amendments disclosed a reasonable cause of action by sufficiently linking the individual defendant's alleged value-stripping to the unpaid commissions.

The court also held that the discoverability of the claim raised issues of fact and credibility that must be determined at trial or on summary judgment.

The self-represented plaintiff brought a motion to compel the defendants to produce unredacted copies of police reports containing the names of individuals who made complaints against her.

In the alternative, she sought to strike portions of the statement of defence due to the defendants' failure to attend examinations for discovery.

The court dismissed the motion, finding that the redacted names were clearly irrelevant to the plaintiff's claims of misfeasance and that protecting the identities of complainants served a public interest.

The court also declined to strike the defence, noting the defendants had no obligation to attend discovery given the scheduling of a summary judgment motion.

The defendant brought three requests under Rules 2.1.01 and 2.1.02 to dismiss or stay the action and two motions as frivolous, vexatious, and an abuse of process.

The self-represented plaintiff had commenced an action arising from a purported vehicle purchase, claiming the defendant accepted a non-negotiable promissory note as payment by updating his order status.

The court found the statement of claim disclosed no reasonable cause of action, the grandiose damages claims ranging from $30,000,000 to $8,000,000,000 were far beyond what any reasonable person would expect, and the plaintiff's ongoing multiple filings, misuse of legal terminology, baseless allegations against counsel and the court, and attempts to enforce unilaterally created PPSA registrations were hallmarks of vexatious litigation.

The proceedings were dismissed in their entirety.

The plaintiffs and Pensio defendants brought undertakings and refusals motions involving over 140 questions arising from examinations for discovery.

The motions concerned a dispute over a $1,000,000 rental income program fee paid by the plaintiffs to a lawyer's trust account.

The plaintiffs alleged fraudulent misrepresentation, breach of fiduciary duty, and unjust enrichment.

The defendants asserted solicitor-client privilege and litigation privilege over various communications and documents.

The court addressed numerous discovery disputes, balancing the principles of relevance, proportionality, and privilege, and made determinations on approximately 140 disputed questions across multiple examinations.

The plaintiff brought a motion under Rule 48.14(5) to extend the time to set an action down for trial.

The action, commenced in 2017 for injuries allegedly sustained when struck by falling concrete, had not been set down for trial by the eighth anniversary of commencement.

The court dismissed the motion and the action for delay, finding that the plaintiff failed to provide an acceptable explanation for the delay and failed to demonstrate that the defendants would not suffer non-compensable prejudice.

The primary cause of delay was the plaintiff's failure to produce relevant documents and answer outstanding undertakings.

Despite multiple accommodations from the defendants and efforts by current counsel to obtain compliance, the plaintiff failed to cooperate adequately or demonstrate an intention to pursue the action.

This is a costs endorsement in a contentious family business dispute between siblings who are trustees of their late father's estate.

The plaintiffs sought leave to amend their statement of claim substantially, adding new causes of action for restitution, unjust enrichment, and disgorgement, and adding a new defendant.

The defendants sought costs thrown away for all steps taken prior to the amendment, while the plaintiffs sought costs of their motion to amend.

The court declined to award costs thrown away at this stage, finding that the effect of the amendments on prior steps cannot be determined until trial.

However, the court awarded partial costs to the defendants for the protracted and inefficient amendment process itself.

This decision concerns the continuation of refusals motions in complex insurance litigation involving environmental claims at 26 mining sites operated by Vale Canada Limited.

The court addresses the proportionality and sufficiency of discovery efforts, the organization and resolution of thousands of discovery refusals, and sets out directions for further production and inquiry.

The ruling emphasizes the need for balance and proportionality in discovery, especially in large-scale litigation, and provides a framework for resolving outstanding discovery disputes ahead of trial.

The court considered a motion by the Defendants for security for costs against the Plaintiff Beijing Hehe Fengye Investment Co. Limited (BHF) in a high-value commercial litigation.

The court reviewed the legal framework under Rule 56.01(1) of the Rules of Civil Procedure, including the justness of ordering security, the merits of the claim, and the financial circumstances of the parties.

The court found that BHF did not have sufficient assets in Ontario, and the claims of BHF and co-plaintiff Rong Kai Hong were not joint such that one could satisfy the other's costs.

The court ordered BHF to post $140,000 as security for costs, balancing the interests of both parties and ensuring access to justice.

The plaintiff brought a motion to extend the time for service and validate the service of its statement of claim on the defendant after a delay of over seven months.

The underlying action arose from a utility strike incident where the plaintiff ruptured a water main allegedly omitted from the defendant's utility locate report.

The court found that the defendant had timely notice of the claim and would suffer no actual prejudice from the extension, as it had already investigated the incident.

Consequently, the court exercised its discretion to grant the extension and validate service to facilitate a determination on the merits.

The court considered a motion by the plaintiffs to extend the time to set their action down for trial under Rule 48.14(5) of the Rules of Civil Procedure.

The plaintiffs, alleging wrongful dismissal and related claims, faced delays due to both parties’ conduct, changes in counsel, and the COVID-19 pandemic.

The court found the plaintiffs provided an acceptable explanation for the delay, much of which was attributable to inadvertence and file management issues at counsel’s firm, and that the defendants would not suffer non-compensable prejudice if the action proceeded.

The court granted the extension and imposed a timetable for the remaining steps.

The court considered a motion by Century 21 Harvest Realty Ltd. and Samuel Kin Yip Chang for security for costs against 5000917 Ontario Inc. in a commercial real estate dispute.

The court reviewed the applicable legal principles under Rule 56.01, including the justness of ordering security, the financial circumstances of the parties, and the merits of the claims.

The court found that 5000917 Ontario Inc. did not have sufficient assets in Ontario to satisfy a costs award and that its claims did not have a clear chance of success on the record.

The court ordered security for costs in the amount of $30,000, to be paid in two installments, and reserved costs of the motion to the trial judge.

This endorsement addresses motions by the defendant insurers to compel Vale Canada Limited to answer refusals arising from oral and written discovery in complex insurance litigation concerning environmental claims at 26 mining sites.

The court reviews the status of discovery, the parties' agreements, and the proportionality of further discovery requests, including the use of exemplar and bridge charts to manage voluminous refusals.

The decision provides detailed directions on categories of refusals, privilege claims, and the process for resolving outstanding discovery issues, emphasizing proportionality, cooperation, and case management to keep the matter on track for trial.

The plaintiff/defendant by counterclaim brought a motion for security for costs against the defendant/plaintiff by counterclaim in a commercial lease dispute.

The moving party sought $45,000 in security.

The court found that the responding party had insufficient assets to satisfy a costs award and failed to establish impecuniosity.

The court ordered the responding party to post $25,000 in security for costs, payable in two tranches, balancing the need for protection against the risk of preventing a claim from proceeding.

The defendants brought a motion for security for costs against the plaintiff, Neuhaus Management Ltd. (NML), seeking $64,530.91 on a partial indemnity scale.

The motion was brought under Rule 56.01(1)(d) of the Rules of Civil Procedure, alleging NML had insufficient assets in Ontario to pay costs.

The court found that the defendants met their initial onus, relying on NML's own representations and evidence from related proceedings regarding its financial difficulties.

Applying a holistic approach, the court balanced the plaintiff's right to proceed with its claim against the defendants' right to an enforceable costs award.

The court rejected arguments that the plaintiff's claim was meritless or that the defendants delayed in bringing the motion.

Ultimately, the court ordered NML to post $30,000 in security for costs, payable in three instalments, finding this amount to be fair, reasonable, and striking the necessary balance.

The defendants brought motions to dismiss two separate actions for the plaintiff's failure to comply with a previous court order and for inordinate and inexcusable delay under Rules 60.12, 24.01(1), and 48.14.

The court found the plaintiff's non-compliance with the order to be complete and unequivocal, with no adequate explanation for the significant delay, particularly after an indulgence was granted.

The court determined that the delay was inordinate and inexcusable, raising a substantial risk that a fair trial would not be possible due to a presumption of prejudice that the plaintiff failed to rebut, including concerns about the availability of medical records and witnesses.

Consequently, both actions were dismissed.

The defendants brought a motion for security for costs against the plaintiff, a former franchisee, citing the plaintiff's insufficient assets.

The plaintiff conceded its lack of assets but argued against the order, claiming impecuniosity and a meritorious case.

The court found the plaintiff failed to prove impecuniosity due to insufficient disclosure of shareholder assets and lack of inquiry into borrowing.

While acknowledging the defendants' delay in bringing the motion, the court ordered the plaintiff to post security for costs on a partial indemnity scale, significantly reducing the amount sought to reflect the delay and future litigation steps.