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Leave granted to bring motion to discharge construction lien and stay action for abuse of process.
The moving party sought leave to bring a motion to discharge a construction lien and dismiss or stay the action based on the plaintiff's delayed disclosure of an assignment agreement, arguing it constituted an abuse of process.
The court held that leave is not required to bring a motion under s. 47 of the Construction Lien Act, as the merits of whether the ground is 'proper' should be determined on the motion itself.
However, the court found that seeking relief under Rule 21.01(3)(d) of the Rules of Civil Procedure and s. 106 of the Courts of Justice Act constitutes an 'interlocutory step' requiring leave under s. 67(2) of the CLA, even if the relief sought is final.
The court granted leave, concluding that the proposed motion would expedite the resolution of the issues in dispute in the lien action.
Court refuses to order plaintiff’s lawyers to post security for costs.
The moving party insurer sought an order requiring the corporate plaintiff to post security for costs under Rule 56.01(d) of the Rules of Civil Procedure on the basis that the plaintiff lacked sufficient assets in Ontario to satisfy a potential costs award.
The evidence established that the plaintiff corporation was impecunious and had significant writs of execution registered against it.
The moving party further argued that the plaintiff’s lawyers, acting under a deferred fee arrangement and standing to benefit from any recovery, should be required to post security as creditors of the plaintiff.
The court held that although creditors may in some circumstances be required to post security, solicitors acting under deferred fee arrangements are not analogous to creditors or shareholders with control over litigation.
Ordering lawyers to post security would create a significant disincentive to such retainers and undermine access to justice.
The motion for security for costs was dismissed.
Appeal dismissed; rule in Clayton's Case does not apply to allocate losses in mingled trust accounts.
The appellants appealed a decision of the Ontario Court of Appeal regarding the allocation of losses between beneficiaries after a trustee made unauthorized disbursements from a mingled bank account.
The appellants argued that the 'first-in, first-out' rule in Clayton's Case should apply to determine how the remaining insufficient funds were distributed.
The Supreme Court of Canada dismissed the appeal, agreeing with the Court of Appeal that the rule should not apply and adopting the reasons of the lower court.
