N. Epstein

The respondent (moving party) sought an order for the pre-trial sale of the jointly-owned matrimonial home under the Partition Act, as well as interim parenting and child support orders.

The applicant opposed the sale, alleging bad faith and a constructive trust claim.

The court granted the order for sale, finding the respondent had a prima facie right to sale and the applicant failed to establish malicious, vexatious, or oppressive conduct that would cause prejudice.

The court deferred making interim parenting and support orders due to conflicting and insufficient evidence, but continued a temporary stay of child support enforcement.

The applicant brought a motion to strike the respondent's pleadings and impose a $224,000 penalty for alleged non-compliance with a previous disclosure order.

The court found that the respondent had substantially complied with the disclosure requirements, with only minor items outstanding, including an explanation for a $25,000 withdrawal made prior to separation.

The court dismissed the motion, holding that striking pleadings is reserved for egregious situations and that the applicant's requested relief was disproportionate and overly aggressive.

The defendants brought motions to dismiss the plaintiff's action for delay.

The action, arising from a 2005 real estate purchase, was struck from the trial list in 2010.

The court found over six years of unexplained delay by the plaintiff and his counsel.

Applying the test for dismissal for delay, the court concluded the delay was intentional and contumelious, and alternatively, inordinate and inexcusable, resulting in a substantial risk that a fair trial would not be possible.

The action was dismissed.

The moving party sought directions regarding a motion in writing under Rule 30.10 against a non-party for production of documents.

Although the parties indicated consent to the order sought, the court found that prior directions requiring service of an earlier endorsement had not been complied with.

The motion record failed to include the earlier endorsement and the affidavit of service did not confirm service of that endorsement on the non-party.

The court therefore required proper service of the motion record, the earlier endorsement, and the present endorsement on the non-party before the motion could proceed further.

Following a successful summary judgment motion dismissing the action against a financial institution, the court determined the appropriate costs award.

The moving party sought substantial indemnity costs based on the plaintiff’s refusal to accept a pre‑motion settlement offer and her failure to respond to the motion with evidence or argument.

The court found the plaintiff’s litigation conduct reprehensible, noting she lacked standing to sue, advanced a claim without merit, ignored a reasonable settlement offer, and forced the defendant to incur unnecessary litigation expenses.

Applying the principles under Rules 57 and 1.04 and the guidance in appellate authorities, the court concluded that substantial indemnity costs were warranted but reduced the claimed hours to a reasonable amount.

Costs were fixed at $14,300 inclusive of taxes and disbursements.

A lender brought a motion for summary judgment dismissing claims by a shareholder who sought to set aside corporate loan liability and attribute responsibility to co‑shareholders.

The court held that the shareholder provided no responding evidence and therefore failed to meet the requirement under Rule 20 of the Rules of Civil Procedure to put forward evidence on a summary judgment motion.

The court further found the shareholder lacked standing to challenge the corporation’s indebtedness because the claim belonged to the corporation and no derivative action had been authorized under the Ontario Business Corporations Act.

In any event, the lender was entitled to rely on corporate resolutions and an officer’s certificate under the indoor management rule confirming authority to borrow and grant security.

The action against the lender was dismissed.

Following dismissal of the plaintiff’s claim after trial under the Simplified Procedure Rules, the successful defendant sought costs on a partial indemnity basis.

The plaintiff acknowledged entitlement to costs but argued for a reduced amount.

Applying the factors under Rule 57.01 of the Rules of Civil Procedure and relevant cost principles, the court determined that a reduced all-inclusive costs award was fair and reasonable.

The court also granted additional costs against a defendant by counterclaim who had been noted in default in connection with the counterclaim judgment.