Paul H. Starkman

The defendants requested an adjournment of an upcoming trial after their previous counsel was removed from the record for non-payment of a retainer.

One defendant also sought leave under Rule 48.04(1) to bring a summary judgment motion based on a limitation period defence.

The court dismissed the request for leave, noting the limitation defence had been pleaded from the outset and the matter was already set for trial.

The court also dismissed the adjournment request, drawing an adverse inference from the defendants' failure to file evidence of prejudice, and ordered the trial to proceed as scheduled.

A dispute arose following the sale of business equipment and inventory under a written agreement.

The plaintiff sold chattels for a fixed price and agreed that the inventory would be counted and paid at invoice price, but the defendants refused to pay for the inventory, disputing the count and alleging breach of a subsequent non‑competition agreement.

The court found the purchasing corporation adopted the pre‑incorporation contract under s. 21 of the Ontario Business Corporations Act and that the individual defendant was not personally liable.

The court accepted the plaintiff’s inventory valuation and rejected the defendants’ competing count.

The non‑competition agreement was held invalid for lack of fresh consideration and because it was obtained under economic duress.

On an appeal from a Master's discovery order, the appellants challenged findings that they had failed to substantiate privilege claims over documents listed or redacted in documentary production.

The court upheld the finding that the moving parties had not met their burden to justify privilege and criticized their shifting positions, inadequate evidence, and misuse of procedural advantages available to government litigants.

However, the court held that Rule 30.06 does not permit wholesale disclosure merely because privilege has not been proven; disclosure may only be ordered after a positive determination that the document is not privileged.

After personally reviewing the disputed documents, the court upheld all remaining privilege claims except for one limited redaction and awarded the respondent partial indemnity costs.

The defendant moved to strike portions of an amended reply as improper reply under the Rules of Civil Procedure, arguing the impugned allegations belonged in the statement of claim or were non-responsive to the amended statement of defence.

The plaintiff argued the motion was barred because the defendant had taken further steps after learning of the alleged irregularity, including scheduling continued discoveries and serving notices of examination.

The court held that those steps constituted an implied waiver under Rule 2.02(b), and refused leave to challenge the pleading.

Although the motion to strike and the alternative request to amend the defence were dismissed, the court ordered that the defendant remained entitled to a continued examination for discovery of the plaintiff’s representative.

Following an order granting the plaintiff leave to discontinue the action, the court addressed the quantum of costs payable to the defendants.

The defendants sought over $25,000 in partial indemnity costs for the relevant period.

The court reviewed the bill of costs and disallowed several amounts, including a double-counted HST charge, time spent after the service of the notice of discontinuance, work related to unsuccessful security for costs proceedings, and excessive communication charges.

Applying the principles under the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court fixed costs at a fair and reasonable amount significantly lower than claimed.

After accounting for a set-off from costs previously awarded to the plaintiff on appeal, the net amount owing was reduced accordingly.

Following dismissal of an appeal from a Master's decision, the court addressed costs.

The respondent had successfully resisted the appeal and sought costs.

Considering the straightforward nature of the issue and the modest materials involved, the court found it appropriate to award a fixed amount.

Costs were awarded on a lump-sum basis payable within 90 days, with the possibility of set-off against other outstanding cost orders in the proceeding.

The appellants appealed a summary judgment dismissing their action against one defendant arising from alleged negligent golf course design and breach of contract in a golf course development project.

The Court of Appeal held that the claimed loss, being diminution in the value of ten acres within a larger parcel, could only be advanced by the owner of the affected land.

The evidence supported the motion judge’s findings that the limited partnership did not own the land and that one appellant acquired the parcel for fair market value after any diminution had already occurred.

Because any loss had been suffered by prior owners, the appellants had no claim against the respondent.

The appeal was dismissed with costs.

In an estate dispute involving a will challenge and alleged resulting trust over joint bank accounts, the applicants sought an interlocutory order restricting an adult child’s access to joint accounts held with the deceased.

The court applied the presumption of resulting trust articulated in Pecore v. Pecore, which places the burden on the surviving joint account holder to establish that the deceased intended a gift of survivorship.

The court found that the respondent’s evidence rebutting the presumption was thin and raised a serious issue to be tried.

Given the risk of depletion of estate assets before trial, the court limited the respondent’s withdrawals from the accounts to $2,000 per month pending trial.

Costs were ordered in the cause.

In a will challenge involving a modest estate, the court considered procedural directions and a request for a summary judgment hearing.

The applicants sought to set aside the will alleging lack of testamentary capacity, lack of understanding, and undue influence, and also alleged that joint bank accounts were held on resulting trust for the estate.

The respondent requested a summary judgment motion to dispose of the case.

The court held that summary judgment would be a grossly disproportionate procedure given the modest estate and the presence of significant credibility disputes requiring viva voce evidence.

The court instead limited discovery and directed that the dispute proceed to a short hybrid trial.

The defendants brought a motion under r. 21.01(1)(a) of the Rules of Civil Procedure seeking to dismiss the action on the basis that it was statute-barred under the Limitations Act, 2002.

The plaintiff alleged breach of trust under the Construction Lien Act relating to unpaid amounts for labour, materials, and equipment provided on a construction project.

Although the plaintiff had commenced an earlier action for breach of contract concerning the same project, the court held that it was not plain and obvious from the pleadings that the limitation period had expired.

The court found that unresolved factual issues—such as the status of holdback funds and the timing of payments—could affect the limitation analysis.

Accordingly, the motion to strike the claim as statute-barred was dismissed.

Following the dismissal of an appeal from a Registrar’s decision granting the bankrupt a conditional discharge, the court determined the issue of costs.

The bankrupt sought substantial indemnity costs, arguing that the creditor had advanced unproven allegations of fraud in affidavit material.

The court declined to award substantial indemnity costs, finding the allegations related to issues directed to be determined by the Registrar and not resolved in the appeal.

Applying Rule 57.01 and the principle that costs follow the event, the court awarded partial indemnity costs but reduced the amount to reflect work relating to issues outside the appeal.

Costs were fixed at $6,000 inclusive of HST, subject to deduction of a prior $1,500 costs award in favour of the creditor.

A creditor appealed under the Bankruptcy and Insolvency Act from a Deputy Registrar’s order granting the bankrupt a conditional discharge.

The appellant alleged various errors including failure to consider alleged perjury, failure to find fraud under s. 173(1)(k), and factual errors relating to the bankrupt’s financial dealings.

The court held that an appeal from a discharge order is not a trial de novo and that the appellant failed to demonstrate any error in principle, error of law, or palpable and overriding error in the Registrar’s findings.

The court further emphasized that issues of fraud are generally not to be determined for the first time on a bankruptcy discharge hearing.

The appeal was dismissed.

Following the withdrawal of a complex summary judgment motion brought by several defendants, the court determined the appropriate costs consequences.

The defendants argued that no costs should be ordered or that costs should be reserved to the trial judge, relying in part on recent appellate guidance regarding summary judgment motions.

The court held that the ordinary rule applies: when a motion is withdrawn, the responding party is generally entitled to costs.

Given the significant effort required to respond to the motion, including multiple affidavits and cross-examinations, the court fixed costs on a partial indemnity basis.

The plaintiff was awarded $17,500 inclusive of disbursements and GST, payable within 30 days.

The court determined the costs consequences following multiple contested discovery and procedural motions in a commercial dispute.

The defendants sought costs after successfully opposing aspects of the plaintiff’s motion to vary a discovery timetable and after succeeding on their own motion requiring the plaintiff to amend pleadings, deliver a proper affidavit of documents, and answer undertakings.

The court found the defendants substantially successful and ordered the plaintiff to pay costs.

Although the defendants requested substantial indemnity costs based on alleged misconduct, the court held that the plaintiff’s positions were not egregious and awarded costs only on a partial indemnity scale.

Costs were fixed at $15,000 for one group of defendants and $20,000 for another, inclusive of taxes and disbursements.

The appellant appealed an order of the motion judge regarding a claim for breach of trust under the Construction Lien Act.

The Court of Appeal dismissed the appeal, finding that the motion judge's order requiring the respondent to pay the full amount of the claimed trust funds into court adequately secured the appellant's claim pending resolution of the contractual dispute.

Furthermore, the motion judge correctly found no evidence to support a claim for punitive damages, leaving nothing further to litigate regarding the breach of trust.

The applicant filed an application alleging discrimination in employment on the basis of sex, pregnancy, and gender identity.

A hearing was scheduled, but the applicant failed to attend.

The Tribunal waited the customary time before proceeding.

Satisfied that the applicant had notice of the hearing, the Tribunal dismissed the application due to the applicant's non-attendance.

The appellant appealed a motion judge's decision that Ontario lacked jurisdiction over a contract dispute with a British Columbia respondent.

The Court of Appeal found the motion judge erred in fact by concluding the contracts were made in British Columbia.

Instead, the appellant had made counter-offers that were accepted by the respondent's delivery of goods in Ontario.

Consequently, the contracts were made in Ontario, triggering the presumption of a real and substantial connection under Rule 17.02(f).

The Court also found Ontario to be the convenient forum and allowed the appeal.

The appellant appealed an order of the motions judge.

The Court of Appeal agreed with the analysis and disposition of the motions judge.

The appeal was dismissed with costs awarded to the respondents in the amount of $5,000.

The moving party tenant sought a stay pending appeal of an order dismissing its application for relief from forfeiture under the Commercial Tenancies Act.

The landlord had terminated the lease based on a redevelopment clause.

The court held that a stay of a dismissal order was of no benefit and treated the motion as a request for an interim injunction under s. 134(2) of the Courts of Justice Act.

The motion was dismissed because the appeal lacked merit and the balance of convenience favoured the landlord, who needed the premises to begin pre-sales for a redevelopment project.

The appellants, commercial tenants, were locked out by their landlord for rent arrears.

To regain entry, they signed minutes of settlement and a promissory note guaranteeing the landlord's lawyer's fees.

When sued on the settlement, the appellants brought a third party claim against the lawyer for economic duress.

The Court of Appeal upheld the motion judge's decision to strike the third party claim, finding that the lawyer's routine conduct in advancing her client's position did not constitute the illegitimate pressure required for economic duress.