R.A. Muir

The plaintiff brought a motion under section 103 of the Courts of Justice Act and Rule 42.01 of the Rules of Civil Procedure seeking leave to issue a certificate of pending litigation over residential property allegedly transferred to defeat creditors.

The court found the plaintiff demonstrated a high probability of success on its guarantee claim against the individual defendant following the corporation’s default.

Evidence suggested the transfer of the property to the defendant’s spouse for no consideration bore several badges of fraud, including the intention to place assets beyond the reach of creditors while continuing to benefit from the property.

The court concluded the balance of convenience favoured preserving the property pending resolution of the action.

Leave to issue the certificate of pending litigation was granted and a litigation timetable was imposed.

The defendant insurer brought a motion seeking an order compelling the plaintiff to attend orthopaedic and psychiatric defence medical examinations under Rule 33 of the Rules of Civil Procedure and s. 105 of the Courts of Justice Act.

The plaintiffs argued that the defendant required leave under Rule 48.04(1) because it had agreed to a fixed trial date at trial scheduling court.

The court held that agreeing to a fixed trial date does not constitute consent to placing an action on a trial list within the meaning of Rule 48.04(1), and therefore leave was not required.

Applying principles of trial fairness and the need for a level evidentiary playing field, the court ordered the plaintiff to attend the requested examinations.

Supplementary reasons regarding costs following two interlocutory motions: the plaintiff's motion for preservation of funds and the defendant's motion for security for costs.

The court found that success was divided on both motions and ordered no costs.

The court also declined the defendant's request to reserve costs to the trial judge, emphasizing the policy objective under Rule 57.03 that costs of contested motions should be determined at the time of the hearing.

The plaintiff brought a motion under Rule 37.14 to set aside a registrar's order dismissing the action for delay.

The action arose from a slip and fall at a subway station.

The delay was largely attributed to communication issues, missing correspondence, and the plaintiff's former counsel's health issues.

Applying the Reid factors, the Master found that the delay was adequately explained, the failure to set down was inadvertent, and the defendant suffered no actual prejudice.

The motion was granted and the dismissal order was set aside.

The plaintiff brought a motion to set aside a registrar's order dismissing the action for delay.

The action arose from a motor vehicle accident and was dismissed after the plaintiff failed to set it down for trial by the deadline in a status hearing order.

The court applied the Reid factors and found that the delay was largely due to coverage issues involving one of the defendants and the need to add third parties.

The court concluded that the plaintiff's explanation was adequate, the failure to meet the deadline was inadvertent, the motion was brought in a timely manner, and the defendants would not suffer actual prejudice.

The motion was granted and the dismissal order was set aside.

In a commercial tenancy dispute arising from lease agreements and a rezoning arrangement for property intended to be used as a hotel, the plaintiff moved under Rule 45.02 of the Rules of Civil Procedure for an order preserving funds paid to the defendant.

The defendant brought a cross‑motion seeking security for costs under Rule 56.01(1)(d), arguing the plaintiff corporation lacked assets in Ontario.

The court held that the $200,000 security deposit constituted a specific fund tied to the litigation and ordered it preserved by payment into court, but declined to extend preservation to advance rent or rezoning contributions, which were characterized as damages claims.

The court also granted the defendant’s motion for security for costs, finding the plaintiff had insufficient assets in Ontario and had not shown a good chance of success to avoid such an order.

The quantum of security for costs was fixed at $15,000 through the end of oral discovery.

The plaintiffs brought motions to set aside registrar's orders dismissing their construction dispute actions for delay.

The delay was largely unexplained and attributed to the plaintiffs' former counsel, who suffered from health issues and subsequently passed away.

Although the plaintiffs failed to meet three of the four Reid factors, the court found they successfully rebutted the presumption of prejudice.

The defendants' conduct, including their willingness to schedule discoveries after the dismissal, indicated no actual prejudice.

The motions were granted and the dismissal orders were set aside.

The plaintiff attended a status hearing to show cause why his wrongful dismissal and defamation action should not be dismissed for delay under former Rule 48.14(13).

The plaintiff, who was self-represented for much of the litigation, explained the delay was due to not receiving a certification form and suffering from severe health and family issues.

The court accepted the explanation and found the defendant would suffer no non-compensable prejudice, as documents were preserved and the defendant's claim of missing witnesses was unsubstantiated.

The action was allowed to continue and restored to the trial list with no order as to costs.

The defendant brought a motion for security for costs under Rule 56.01(1)(d), arguing the corporate plaintiff had insufficient assets in Ontario to pay a potential costs award.

The plaintiff, a small trade contractor seeking $340,000 for unpaid invoices, opposed the motion.

The Master found the defendant failed to meet its initial burden, noting the plaintiff had ongoing contracts, work in progress, and accounts receivable, and the potential costs liability for defending the action was modest ($17,000).

The motion was dismissed with costs awarded to the plaintiff.

The defendant brought a motion for security for costs against the corporate plaintiff under Rule 56.01(1)(d).

The plaintiff opposed, arguing impecuniosity caused by the defendant's failure to pay outstanding invoices.

The court found the plaintiff failed to establish impecuniosity due to insufficient financial disclosure.

However, the court dismissed the motion, finding the plaintiff had a good chance of success on the merits and that its financial difficulties were largely caused by the defendant's refusal to pay approved invoices.

The plaintiff brought a motion to amend its statement of claim to add three new defendants (alleged suppliers and manufacturers of plumbing parts) in an action arising from water damage at a condominium.

The presumptive two-year limitation period had expired, but the plaintiff relied on the doctrine of discoverability.

The court found that while the plaintiff did not have actual knowledge of the identities of two of the proposed defendants prior to the expiry of the limitation period, it failed to provide sufficient evidence that it exercised reasonable diligence to discover their identities.

The motion was dismissed against the opposing proposed defendants, but granted for the unopposed proposed defendant.

The plaintiff moved under Rule 37.14 of the Rules of Civil Procedure to set aside a registrar’s administrative dismissal of the action for delay.

The court considered the factors governing such relief, including explanation for the delay, inadvertence in missing the set‑down deadline, delay in bringing the motion, and prejudice to the defendant.

Although the motion to set aside was not brought promptly, the court accepted that the missed deadline resulted from inadvertence and that the plaintiff always intended to pursue the claim.

Discoveries and production were complete and the defendant failed to demonstrate prejudice affecting the ability to defend the action.

Balancing the factors contextually, the court concluded that it was just to set aside the dismissal and permit the action to proceed to trial.

The plaintiff brought a motion under Rule 37.14 of the Rules of Civil Procedure seeking to set aside a registrar’s administrative dismissal of the action for delay under Rule 48.14.

The court applied the factors governing such relief, including the explanation for delay, whether the missed deadline was inadvertent, the timeliness of the motion, and prejudice to the defendant.

Although there were periods of unexplained delay after mediation, the court found the missed set‑down deadline resulted from inadvertence and the motion to set aside was brought promptly after discovery of the dismissal.

The remaining issue concerned valuation of the plaintiff’s shares in the corporate defendant, which would largely depend on financial records and expert evidence.

Finding no evidence of actual prejudice and that the plaintiff satisfied the applicable factors, the court set aside the dismissal order as against the corporate defendant only.

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.

The plaintiff brought a motion for leave to amend its statement of claim to substitute two corporate defendants after discovering that the originally named defendant corporation never existed.

The proposed substitutions were sought on the basis of misnomer under Rules 5.04(2) and 26.01 of the Rules of Civil Procedure.

The court held that the circumstances constituted misnomer because the litigation was clearly directed at corporations controlled by the same principal, and a reasonable reader would understand that the claim was intended for those entities.

The court further found no non‑compensable prejudice, as the proposed defendants had knowledge of the claim and had effectively defended the action from the outset.

Leave to amend and substitute the proper corporate defendants was granted, and the substituted defendants were ordered to satisfy a prior interlocutory costs order.

The plaintiffs brought a motion for leave to amend their statement of claim to add the Attorney General of Canada as a defendant in a motor vehicle accident action alleging host liability.

The proposed defendant argued the amendment was barred by the two‑year limitation period under the Limitations Act, 2002.

The court applied the discoverability doctrine and the principles governing motions to add parties under Rule 5.04(2) of the Rules of Civil Procedure.

It found the plaintiffs had provided a reasonable explanation for not discovering the potential liability of the proposed defendant until the examination for discovery of the existing defendant.

Leave to amend was granted with permission for the proposed defendant to plead a limitations defence.

At a contested status hearing, the plaintiff was required to show cause why its commercial lease dispute action should not be dismissed for delay under Rule 48.14(13).

The court applied the conjunctive test from Khan, finding the plaintiff provided an acceptable explanation for the delay and that the defendant would suffer no non-compensable prejudice.

The action was allowed to continue, and the registrar was ordered not to dismiss the action without further order of the court.

Following a pleadings motion in which the defendant successfully obtained an order striking certain paragraphs of the plaintiff’s statement of claim, the court determined the appropriate costs award.

The defendant sought substantial indemnity costs exceeding $26,000, while the plaintiff argued the request was excessive and proposed partial indemnity costs between $4,500 and $5,500.

Applying s. 131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court emphasized proportionality and the objective of fixing fair and reasonable costs for the unsuccessful party to pay.

The court concluded the defendant was largely successful but that the claimed amount was excessive given the nature of the motion and the materials filed.

Partial indemnity costs were therefore reduced and fixed at $8,500 inclusive of HST and disbursements.

Following a successful motion by the defendants to set aside their noting in default and a default judgment under Rule 19.08 of the Rules of Civil Procedure, the court determined the issue of costs.

Although the defendants had been successful on the motion, the court declined to award costs.

The court noted the defendants required an indulgence due to their default and had delayed significantly in bringing the motion.

The plaintiff’s opposition to the motion was found to be reasonable in the circumstances, particularly given the defendants’ prolonged inaction.

The court concluded that fairness required no order as to costs.

Following two motions relating to the costs consequences of a discontinued civil action, the court addressed competing costs claims between the parties.

The plaintiff had been successful on both motions, including opposing the defendant’s motion under Rule 23.05 of the Rules of Civil Procedure seeking costs following discontinuance and obtaining costs related to an appearance before an assessment officer.

The court considered the discretionary costs framework under s.131(1) of the Courts of Justice Act and the factors in Rule 57.01, as well as the principle of proportionality under Rule 1.04.

Although the plaintiff was the largely successful party, the court reduced the amount claimed to reflect partial success and concerns about proportionality.

Costs were fixed at a reduced amount that the court considered fair and reasonable.