M. Simaan

The defendant brought a motion for answers to refusals and for further security for costs.

The refusals issue was resolved on consent.

On the issue of security for costs, it was undisputed that the plaintiff ordinarily resides in Vietnam.

The court found that the merits of the case were neutral due to credibility issues that could not be resolved on a motion.

As the plaintiff did not allege impecuniosity or prejudice, the court ordered the plaintiff to post further security for costs in the amount of $41,835.82.

The defendants brought a second motion to discharge a certificate of pending litigation (CPL) registered by the plaintiff against a residential property.

The defendants argued that new facts, including the plaintiff's rejection of a 'with prejudice' settlement offer and new evidence of financial hardship, justified the discharge.

The court dismissed the motion, finding that the defendants were improperly attempting to relitigate issues already decided on the first discharge motion and appeal.

The court held that the new evidence did not meet the exceptional circumstances test to overcome res judicata, and the equitable factors continued to favour maintaining the CPL.

The appellants appealed a Small Claims Court decision ordering them to pay $24,478.63 in real estate commissions to the respondents.

The appellants argued the Deputy Judge erred in finding an enforceable oral agreement and in applying the principles of unjust enrichment after they purchased a property using the seller's agent instead of the respondents.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error in the Deputy Judge's factual inferences or application of the law of unjust enrichment.

The defendants appealed a master's decision dismissing their motion to discharge a certificate of pending litigation (CPL) obtained ex parte by the plaintiff purchaser.

The defendants argued the plaintiff failed to disclose a 'no registration' clause in the agreement of purchase and sale and that the master misapplied the test for a CPL.

The Superior Court dismissed the appeal, finding no error of law regarding material non-disclosure, as the clause did not unambiguously prohibit a CPL after the vendor terminated the agreement.

The court also found no palpable and overriding error in the master's assessment of the property's uniqueness and the balance of convenience.

The plaintiff brought a motion to compel the defendant to re-attend cross-examination to answer refusals.

The court reviewed the refused questions in the context of the plaintiff's claims of unjust enrichment and piercing the corporate veil.

The court ordered the defendant to answer questions relating to his personal financial affairs, his financial relationship with the corporate defendant, and document retention, but declined to order answers to questions seeking legal conclusions or settlement positions.

As success was mixed, no costs were awarded.

The applicants sought a penalty for the respondent, who was previously found in contempt for multiple breaches of six court orders related to the disclosure of financial information for several franchise businesses.

The court found that the respondent deliberately and continuously flouted the orders to frustrate the applicants' ability to monitor the businesses, which ultimately lost all value.

The court sentenced the respondent to consecutive terms of imprisonment totaling between 18 and 21 months less a day, and ordered him to pay substantial indemnity costs of $369,644.26.

The applicants brought motions for contempt against the respondents, specifically Fateh Singh Sidhu, for breaching eight court orders related to the disclosure of financial and operational information regarding several Popeye's franchises.

The court found that the orders were clear and unequivocal, and that Sidhu deliberately and willfully disobeyed them.

The court concluded beyond a reasonable doubt that Sidhu was in civil contempt and adjourned the matter for a penalty hearing.

The defendant brought a motion under s. 103(6) of the Courts of Justice Act and Rule 42.02 of the Rules of Civil Procedure seeking to discharge a certificate of pending litigation (CPL) obtained by the plaintiff on an ex parte basis.

The defendant argued the plaintiff failed to make full and fair disclosure of material facts, particularly information arising from pleadings, testimony, and evidence in a related action involving the same parties and a real estate transaction.

The court held that the alleged omissions were not material to the decision to grant the CPL and that the plaintiff had adequately disclosed the defendants’ position regarding the alleged repayment of a $600,000 deposit.

Evidence from the related litigation and a text message referencing repayment did not contradict the plaintiff’s disclosure that the defendants claimed repayment while the plaintiff did not know whether the claim was true.

The court concluded the plaintiff had met the obligation of full and fair disclosure required for ex parte CPL motions.

The plaintiff, a court-appointed receiver, brought an action to enforce a 2004 Settlement Agreement against the defendants.

The settlement was nominally entered into by a numbered company (129) controlled by the late Sylvia Hyde's husband, Edwin, and later by Sylvia herself.

The plaintiff sought to bind Sylvia's estate and two other companies she controlled (Glen Grove and Spendthrift) to the settlement's obligations, which included providing a mortgage and guarantee.

The court found that Sylvia had used her common control over the three corporations to secure a court-approved benefit from the settlement and could not subsequently use their separate legal personalities to avoid the obligations.

The action was allowed against Glen Grove and Spendthrift, but dismissed against Sylvia's estate as there was no basis to pierce the corporate veil.

Following the refusal of leave to appeal an order, the successful party sought costs.

The responding party argued that awarding costs at this stage would be unjust because issues arising from earlier procedural missteps by the plaintiff could be addressed later in the proceeding.

The court held that each litigation step attracts its own costs determination and that any additional costs arising from procedural errors could be considered when final costs are assessed.

As the plaintiff successfully resisted the motion for leave to appeal, the court fixed costs in its favour on a partial indemnity basis.

The moving party sought leave to appeal an order granting consolidation and transfer of several Small Claims Court actions to the Superior Court of Justice and dismissing a motion to strike for abuse of process.

The moving party argued that a prior consent dismissal in a related Superior Court action rendered the issues res judicata and relied on appellate authority concerning the finality of consent dismissal orders.

The court held that the prior decision did not conflict with the authorities cited and that the motions judge properly exercised discretion in considering the factors from the Supreme Court of Canada decision addressing res judicata.

The court found no reason to doubt the correctness of the earlier ruling and concluded that the circumstances were sufficiently particular to avoid concerns about undermining finality of consent dismissals.

Leave to appeal was therefore refused.

The plaintiff receiver moved for summary judgment against several corporate defendants and the estate of Sylvia Hyde for breach of a settlement agreement related to a bankruptcy proof of claim.

The estate trustees brought a cross-motion for summary judgment dismissing the action.

The court found that the documentary record and conflicting affidavit evidence did not allow for a full appreciation of the issues, particularly regarding Sylvia Hyde's knowledge and participation in the settlement.

Applying the full appreciation test, the court dismissed both motions for summary judgment and directed that the matter proceed to an expedited trial.

The moving party brought a motion to strike an affidavit filed by an opposing party in advance of summary judgment motions.

The affidavit was challenged on the basis that the deponent was allegedly incompetent when swearing the affidavit, refused cross‑examination, and later became unavailable.

The court held that, as a general rule, motions to strike affidavits should be heard by the judge presiding over the main motion or application because that judge must determine issues of admissibility, competency, credibility, and weight of the evidence.

Pre‑emptive motions to strike should occur only in the rarest and most extraordinary circumstances due to the inefficiency and proliferation of interlocutory motions.

The judge reserved the decision on the motion and directed that it would be determined at the commencement of the hearing of the main motions.