Michael P. McGraw

The Defendants brought a motion for security for costs against the Plaintiff.

The Plaintiff, ordinarily resident outside Ontario and lacking sufficient assets in Ontario, was ordered to post security for costs.

The court applied Rule 56.01(1) holistically, considering factors such as the plaintiff's residence, lack of assets, and the merits of the claim, which were not found to have a good chance of success.

The court also rejected the plaintiff's argument of delay by the defendants.

The defendants brought a motion for an order requiring the plaintiff, a corporate entity, to post security for costs.

The plaintiff conceded it had no assets or income but argued it was impecunious and its claim was not devoid of merit.

The court found the plaintiff failed to provide sufficient financial disclosure to establish impecuniosity and could not assess the merits at an interlocutory stage.

While noting the defendants' delay in bringing the motion, the court ordered the plaintiff to post partial security for costs, balancing the need to protect defendants from unenforceable cost awards against allowing a claim to proceed.

The defendants brought a motion for security for costs against the corporate plaintiff in an action arising from the purchase of a radiology clinic.

The plaintiff claimed it was impecunious and that its claim was not devoid of merit.

The court found that the plaintiff failed to provide sufficient financial disclosure to establish impecuniosity and that the merits of the complex claim could not be properly assessed at the interlocutory stage.

Applying a holistic approach, the court ordered the plaintiff to post security for costs in the total amount of $80,000 on a partial indemnity scale.

The defendants brought a motion to set aside a default judgment for possession of their property, which was granted to the plaintiff due to mortgage default.

The court dismissed the defendants' motion, finding they failed to provide a plausible excuse for the default, were properly served, and did not demonstrate an arguable defence on the merits.

The court also rejected the argument that the judgment was an improper 'partial default judgment' and concluded that the balance of prejudice favored the plaintiff, as the defendants continued to occupy the property without payments while the plaintiff incurred expenses.

The defendants brought a motion for leave to amend their Statement of Defence and Counterclaim to claim a Certificate of Pending Litigation (CPL) on a property owned by the plaintiff, and for leave to issue and register the CPL.

The parties, who are family members, were involved in a dispute over pooled funds and property investments.

The court found that while there was a triable issue regarding the defendants' claim to an interest in the property, the equities favoured the plaintiff.

The property was not unique, damages would be a satisfactory remedy, and the harm to the plaintiff in granting the CPL outweighed the harm to the defendants.

The motion to issue the CPL was dismissed.

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

The action arose from a commercial lease dispute where the plaintiffs alleged the defendant unlawfully changed the locks on a garage.

The plaintiffs commenced the action in 2016 but took no steps between December 2018 and May 2023.

The court found the delay of over four years to be inordinate and inexcusable, noting the self-represented plaintiff's failure to communicate with the defendant.

Given the significant delay and lack of evidence regarding document preservation, the court found actual prejudice and a substantial risk that a fair trial was no longer possible.

The action was dismissed.

This motion concerned an application by 2441799 Ontario Inc. to amend its Notice of Application to add Gil Shcolyar as a respondent and to make related amendments.

The applicant sought to add claims against Mr. Shcolyar, the sole director and officer of the respondent 2474187 Ontario Inc., alleging improper conduct related to a lease renewal, a proposed property purchase, and the termination of the lease.

The court granted leave to add Mr. Shcolyar as a respondent and allowed most of the proposed amendments, finding sufficient factual underpinning.

However, allegations of fraud against Mr. Shcolyar were dismissed without prejudice, with leave granted to the applicant to re-plead them with sufficient particulars.

The defendants moved to discharge a Certificate of Pending Litigation (CPL) on a property, which the plaintiff had obtained ex parte.

The court granted leave for a non-party to intervene.

The CPL was discharged due to the plaintiff's material non-disclosure regarding notice to the defendants and incorrect factual statements in the motion materials.

Additionally, the court found no triable issue regarding the plaintiff's claim to an interest in the property, and a consideration of the equities also supported the CPL's discharge.

The plaintiffs, Manubhai Lallub Patel and Manjula Patel, brought a motion to set aside a Registrar's Order dismissing their action as abandoned, issued on February 28, 2014.

The action, commenced in 2013 following a 2011 collision, was never served on the defendants.

The plaintiffs' former counsel, Alpesh Patel, deliberately did not advance the litigation and later fabricated settlement documents, leading to a fraud charge against him.

The court applied the four Reid factors (explanation of delay, inadvertence, promptness of motion, and prejudice to defendants) in a contextual approach.

The court found that the plaintiffs failed to provide a reasonable explanation for the delay, as they did not even know the action had been commenced, and their former counsel's conduct was deliberate, not inadvertent.

While the motion was brought promptly after the dismissal order came to the plaintiffs' attention, the defendants demonstrated significant actual prejudice due to the loss of key medical evidence (OHIP summaries) and the inability to conduct timely independent medical assessments over a 12-year period.

The court also emphasized the principle of finality and the fact that the plaintiffs are pursuing remedies against their former solicitor.

Consequently, the motion to set aside the dismissal order was dismissed.

The defendant brought a motion for an order requiring the plaintiff, a corporation, to post security for costs.

The plaintiff claimed impecuniosity, arguing it had no assets or income.

The court found that the plaintiff failed to provide sufficient disclosure regarding its financial viability and its shareholders' ability to borrow, thus failing to establish impecuniosity.

The court also assessed the merits of the plaintiff's negligence claim, finding it did not have a good chance of success, and considered the defendant's delay in bringing the motion.

Applying a holistic approach, the court granted the motion, ordering the plaintiff to post $25,000 in security for costs on a partial indemnity scale within 90 days.

The plaintiffs brought a motion for leave to issue a Certificate of Pending Litigation (CPL) over a commercial development property, claiming a 10% beneficial interest based on alleged oral agreements and financial contributions.

The defendants opposed, disputing the existence of a binding agreement or trust.

The court found a triable issue regarding the plaintiffs' claim to an interest in the property, satisfying the initial low evidentiary threshold for a CPL.

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

The court reasoned that the property was acquired for profit, making damages a satisfactory and calculable remedy, and that the property was not unique.

Furthermore, the CPL would act as an injunction, causing greater harm and inconvenience to the defendants by delaying development and sale while they remained responsible for carrying costs.

The defendant moved to discharge a Certificate of Pending Litigation (CPL) and a mortgage registered against several properties.

The CPL was obtained ex parte by the plaintiff, who claimed fraud, breach of fiduciary duty, and sought constructive/resulting trust remedies for funds invested in the defendant's property ventures.

The court found a triable issue regarding the plaintiff's claim to an interest in the properties.

While the defendant delayed bringing the motion and the plaintiff failed to disclose a material $100,000 payment on the ex parte motion, the court exercised its equitable discretion.

It ordered the CPL to remain on two properties (King and Fort Rouille) and the mortgage to remain on additional properties, but discharged the CPL and mortgage from Lakeshore, balancing the parties' rights and ensuring sufficient security for the plaintiff's claim.

The defendants Tarun Channa and Ashok Dhillon brought a motion to compel the plaintiffs (trustees of the Estate of William Buik) to provide particulars for their Statement of Claim.

The plaintiffs' claim alleged violations of the Fraudulent Conveyances Act and Assignments and Preferences Act, breach of constructive trust, and unjust enrichment, based on documents provided by the moving defendants during examinations in aid of execution.

The court, applying Rule 25.06(8) regarding fraud allegations, found that while the plaintiffs were not required to provide particulars for damages, they must provide particulars for the "impugned transactions" (dates, amounts, parties) to identify the specific fraudulent or improper transfers, even though the source documents were largely within the defendants' knowledge.

The motion was partially granted, and a timetable for further litigation steps was set.

The plaintiff, Canada Mortgage and Housing Corporation (CMHC), brought a motion under Rule 2.1.01 to dismiss the defendants' motion to set aside a default judgment.

The defendants had repeatedly attempted to relitigate issues related to the 2010 default judgment, with previous actions and motions dismissed as frivolous, vexatious, and an abuse of process by multiple courts, including the Court of Appeal.

The court found that the defendants' current motion was a fourth attempt to relitigate the same issues without new or cogent evidence, confirming it was frivolous, vexatious, and an abuse of process.

The court dismissed the defendants' motion.

The plaintiff, Bay-Yorkville Developments Ltd. (BYDL), brought a motion to consolidate its action against Ferguson-Neudorf Glass Inc. (FNG) with a pre-existing main action involving Toronto Standard Condominium Corporation No. 2282.

FNG opposed the consolidation and sought to schedule a summary judgment motion on limitations grounds.

The court granted the consolidation, finding that the actions shared common questions of law and fact, arose from the same transactions, and that consolidation would avoid multiplicity of proceedings and promote efficiency.

The court further ruled that FNG's summary judgment motion should be heard only after discoveries were completed, emphasizing the need for a comprehensive record in complex construction litigation.

The plaintiff brought a motion seeking leave to correct the name of the defendant "John Doe" to Nisim Saban and Joseph Algai under the misnomer doctrine, or alternatively, to amend the Statement of Claim to add Nisim Saban, Joseph Algai, Mariana Slomyanski, and Slomyanski Law as defendants after the presumptive limitation period on the basis of discoverability.

The court denied the misnomer argument, finding the original pleading lacked sufficient particularity to identify the proposed defendants.

However, the court granted leave to add all proposed defendants under the discoverability rule, concluding that the plaintiff had provided a reasonable explanation for the delay in discovery and that the proposed defendants failed to demonstrate non-compensable prejudice.

The defendants brought a motion for security for costs against the corporate plaintiff in an action arising from a commercial lease dispute.

The plaintiff conceded it had insufficient assets to pay a costs award but argued its claims had a good chance of success and its impoverishment was caused by the defendants' conduct.

The court found the merits could not be determined on an interlocutory basis due to disputed facts and credibility issues.

Applying a holistic approach, the court ordered the plaintiff to post security for costs in the amount of $30,000 for the corporate defendants and $15,000 for the real estate agent defendant, up to and including examinations for discovery.

The defendant insurance broker brought a motion for security for costs against the plaintiff, a Delaware limited partnership with no assets in Ontario.

The plaintiff was seeking over $46 million in damages for denied coverage under a fidelity bond.

The court found that the plaintiff was a foreign resident, a nominal plaintiff, and had insufficient assets to satisfy a costs award.

Applying a holistic approach, the court ordered the plaintiff to post security for costs in the amount of $525,000.

The self-represented plaintiff in a medical malpractice action brought motions to strike the defendant physician's Statement of Defence, compel answers to a third set of written discovery questions, and examine non-party witnesses.

The defendant brought a cross-motion to dismiss the plaintiff's motions as frivolous and vexatious under Rule 2.1.02.

The court dismissed the motion to strike the defence, finding the defendant had adequately answered nearly 300 questions and fulfilled his production obligations.

The court ordered the defendant to answer two specific questions relevant to the pleadings but otherwise dismissed the request for further answers.

The cross-motion and the motion to examine non-parties were also dismissed or adjourned.

The plaintiffs brought a motion for leave to correct the name of the defendants in their statement of claim from various Sienna entities to Algoma Manor Nursing Home.

The plaintiffs alleged negligence resulting in the death of a resident at the nursing home.

The court found that the 'litigating finger' was clearly pointed at Algoma Manor Nursing Home in the original pleading, as it was specifically referenced and was the only nursing home in the town.

The court held this was a case of misnomer and that the proposed defendant would suffer no actual prejudice.

The motion to correct the misnomer was granted.