Nolan Downer

The plaintiffs brought a motion to set aside a Registrar's order dismissing their action for delay, which arose from a 2011 property flood.

The court applied the four-factor test from Reid v. Dow Corning Corp., assessing the explanation for delay, inadvertence in missing the deadline, promptness of the motion, and prejudice to the defendants.

The court found significant unexplained delays by both plaintiffs and their counsel, that the missed deadline was not mere inadvertence, and that the motion to set aside was not promptly brought.

Crucially, the defendants suffered actual prejudice due to the death of a key plaintiff (James Freure) and the dementia of another (Fae Freure), which prevented full discoveries and expert examinations, and resulted in the loss of relevant medical records.

The court dismissed the motion to set aside the dismissal, emphasizing the need for finality in litigation.

A separate motion to appoint Catherine Chapman as litigation guardian for Fae Freure was granted.

The defendants brought a motion for summary judgment to dismiss claims by Albair William Faltas and Royal Arts Pharmaceutical Inc. Mr. Faltas's claim was challenged on the basis that he was an excluded driver and the vehicle was "operated" while uninsured.

Royal Arts Pharmaceutical Inc.'s claim was an "action per quod servitium amisit" for loss of services.

The court dismissed the defendants' motion, finding genuine issues requiring a trial regarding the interpretation of "operate" under the Compulsory Automobile Insurance Act when a vehicle is inoperable, and affirming that per quod claims remain a valid cause of action in Ontario.

This ruling addresses costs arising from three summary judgment motions in consolidated actions.

In the first motion, B-W Feed & Seed Ltd. (BWFS) successfully dismissed a third-party claim by Stargate Manufacturing Inc., with the court finding BWFS owed no duty of care to Stargate.

BWFS was awarded partial indemnity costs of $33,458 against Stargate.

In the second motion, Stargate successfully defended a summary judgment claim brought by BWFS as plaintiff, and was awarded partial indemnity costs of $13,186.34 against BWFS.

In the third motion, Zehr Transport Ltd. successfully defended a summary judgment motion by Transit Trailer Limited, which sought to dismiss Zehr's action for breach of contract, warranty, and negligence.

Zehr was awarded partial indemnity costs of $13,159.30 against Transit.

The court emphasized the principle of reasonableness in fixing costs, considering factors under Rule 57.01, and reiterated that elevated costs (substantial indemnity) are generally reserved for egregious misconduct, not merely an offer to settle outside Rule 49.10.

This ruling addresses costs arising from three summary judgment motions in consolidated actions.

In the first motion, B-W Feed & Seed Ltd. (BWFS) successfully dismissed a third-party claim by Stargate Manufacturing Inc., with the court finding BWFS owed no duty of care to Stargate.

BWFS was awarded partial indemnity costs of $33,458 against Stargate.

In the second motion, Stargate successfully defended a summary judgment claim brought by BWFS as plaintiff, and was awarded partial indemnity costs of $13,186.34 against BWFS.

In the third motion, Zehr Transport Ltd. successfully defended a summary judgment motion by Transit Trailer Limited, which sought to dismiss Zehr's action for breach of contract, warranty, and negligence.

Zehr was awarded partial indemnity costs of $13,159.30 against Transit.

The court emphasized the principle of reasonableness in fixing costs, considering factors under Rule 57.01, and reiterated that elevated costs (substantial indemnity) are generally reserved for egregious misconduct, not merely an offer to settle outside Rule 49.10.

This case involved three motions for summary judgment arising from two consolidated actions following a dump trailer tipping incident.

B-W Feed & Seed Ltd. (BWFS) moved to dismiss a third-party claim by Stargate Manufacturing Inc. and also for summary judgment against Stargate.

Transit Trailer Limited moved to dismiss an action against it by Zehr Transport Ltd. The court granted BWFS's motion to dismiss Stargate's third-party claim, finding no cause of action.

However, BWFS's motion for summary judgment against Stargate was dismissed due to complex factual issues requiring a trial.

Transit's motion for summary judgment against Zehr was also dismissed, as Zehr raised triable issues regarding breach of implied conditions under the Sale of Goods Act, manufacturer's warranty, and Transit's duty to warn.

The defendants brought motions for summary judgment to dismiss the plaintiffs' action.

The plaintiffs alleged that the application of biosolids on the defendants' adjacent farm caused noxious odours, seepage onto their property, and resulting illnesses and economic loss.

The court dismissed the plaintiffs' strict liability claim under the rule in Rylands v. Fletcher, finding that spreading biosolids is not a non-natural use of land.

However, the court dismissed the defendants' summary judgment motions regarding the claims of trespass, negligence, and nuisance, finding that there were genuine issues requiring a trial based on evidence of potential pooling, seepage, and prolonged offensive odours.

Following dismissal of a motion for an interim injunction, the successful defendants sought substantial indemnity costs of $26,270.93 for the interlocutory proceeding.

The court acknowledged the general presumption that the successful party is entitled to costs and that interlocutory costs are ordinarily payable forthwith.

However, given that the underlying dispute raised a serious issue to be tried concerning alleged use of a protected confectionery recipe and related marketing practices, the court concluded that the justice of the case warranted a different approach.

Costs of the motion were therefore reserved to the trial judge, who would be better positioned to assess entitlement in the context of the full record.

The plaintiff sought an interlocutory injunction restraining the defendants from using the term “mint smoothie” to describe a chocolate confection, alleging trademark infringement and passing off under the Trademarks Act.

The court accepted that there was a serious issue to be tried given the parties’ relationship, the defendants’ marketing references to family recipes, and the existence of a registered trademark.

However, the plaintiff failed to demonstrate irreparable harm as required by the RJR‑MacDonald test.

Evidence of marketplace confusion was largely hearsay and insufficient, and any potential damages could be quantified.

The balance of convenience also favoured the defendants because the disputed product represented a significant portion of their sales.

The motion for an interlocutory injunction was dismissed.