O. Sabo

The defendant Estate Trustee brought a motion to dismiss the plaintiff's action against the Estate, arguing it was an abuse of process because it duplicated claims already raised in an ongoing application challenging the validity of the deceased's will.

The plaintiff had commenced the separate action to include claims of negligence and breach of fiduciary duty against the solicitor who drafted the will.

The court dismissed the motion, finding that while the claims against the Estate were duplicative, the plaintiff was not a vexatious litigant and the multiplicity of proceedings could be remedied by an order to try the action together with the trial of issues in the application.

The defendants moved for security for costs under Rule 56.01(1)(d) in an action brought by the plaintiff alleging an improvident sale of a commercial property under power of sale.

The plaintiff corporation had no assets in Ontario, but its sole shareholder was not impecunious.

The court found that the plaintiff failed to demonstrate a 'good chance of success' on the merits to avoid posting security.

The court ordered the plaintiff to post $60,000 in security for costs in installments.

The defendants brought a motion to set aside a Mareva Injunction and a possession order obtained ex parte by the plaintiff.

The court set aside the Mareva Injunction but upheld the possession order.

In this costs endorsement, the court found the defendants were the more successful party, noting the plaintiff's ex parte motion was over-reaching and failed to respect natural justice.

However, the court declined to award substantial indemnity costs because the defendants had failed to deliver up the purchased assets.

The defendants were awarded partial indemnity costs of $13,826.88.

The plaintiff accepted an offer to settle her wrongful dismissal and mental distress claim for $15,000 plus costs to be assessed or agreed.

The parties could not agree on costs.

The defendants argued no costs should be payable because the settlement amount fell within the Simplified Procedure threshold.

The court rejected this argument, noting the offer expressly provided for costs and the action was reasonably brought under the ordinary procedure given the complexity of the mental distress claims.

The court assessed the plaintiff's partial indemnity costs, reducing the claimed amount for unnecessary steps and disbursements, and awarded $9,716.50 in fees and $2,003.80 in disbursements, plus $500 for the costs of the assessment.

The defendants brought a motion to adjourn a scheduled trial in a professional negligence action arising from legal and accounting advice provided in connection with a corporate reorganization that allegedly caused adverse tax consequences.

The defendants argued that the plaintiffs’ damages theory had expanded late in the litigation to include business losses, requiring a responsive expert report and further discovery.

Applying Rule 52.02 and the factors set out in Ariston Realty Corp. v. Elcarim, the court held that proceeding without the defendants’ damages expert would be fundamentally unfair.

A brief adjournment was available and no non-compensable prejudice to the plaintiffs was established.

The interests of justice therefore required that the trial be adjourned.

The plaintiffs moved to set aside a registrar’s administrative dismissal of their action for delay under Rule 48.14 of the Rules of Civil Procedure.

The court applied the Reid factors governing motions to set aside dismissal orders, including the explanation for delay, inadvertence, promptness of the motion, and prejudice to the defendant.

The court found that the plaintiffs had provided no satisfactory explanation for several years of inactivity and failed to demonstrate that they always intended to advance the action toward trial.

Although actual prejudice to the defendant was not conclusively established, the court held that the unexplained delay and failure to comply with a status hearing timetable justified maintaining the dismissal.

The motion to set aside the administrative dismissal was therefore denied.