R. Frank

The plaintiff brought a motion for leave to amend its statement of claim to add allegations regarding a delay claim and punitive damages arising from a construction subcontract dispute.

The defendants opposed, arguing the amendments pleaded a new cause of action that was statute-barred and improperly pleaded evidence.

The court granted leave to amend, finding the amendments largely provided particulars of allegations already pleaded and did not assert a fundamentally different claim.

The court also held that even if it were a new cause of action, there was a genuine factual dispute regarding discoverability that should not be resolved on a pleadings motion.

The plaintiffs brought a motion to extend the time to set the action down for trial and to set a timetable for remaining steps.

The defendant brought a cross-motion to dismiss the action for delay under Rule 48.14.

The court found that the plaintiffs provided an acceptable explanation for the delay, as they were actively working with experts to prepare liability and damages reports, despite their counsel's failure to communicate with the defendant.

The court also found that the defendant would suffer no non-compensable prejudice if the action proceeded.

The plaintiffs' motion was granted and the cross-motion was dismissed.

The defendants brought a motion for security for costs on the basis that the plaintiff was no longer ordinarily resident in Ontario.

The plaintiff, who alleged the defendant intentionally struck him with a motor vehicle while he was cycling, opposed the motion.

The court found the plaintiff had a good chance of success on the merits and that his adverse costs insurance policy was an adequate substitute for payment into court.

The motion was dismissed.

The plaintiffs brought a motion to vary timetable orders to extend the set down date for trial in an action concerning alleged manufacturing defects in water pipes.

The action had been delayed for several years, primarily due to the plaintiffs' failure to answer undertakings from discoveries.

Applying the Reid factors, the court found that the plaintiffs failed to provide an adequate explanation for the delay, did not demonstrate inadvertence, failed to bring the motion promptly, and did not rebut the presumption of prejudice to the defendants.

The motion was dismissed.

The defendant brought a motion to strike certain paragraphs of the plaintiff's statement of claim.

Prior to argument, the parties resolved the substantive issues and agreed to amend the impugned paragraphs, but could not agree on costs.

The plaintiff sought partial indemnity costs, arguing the defendant's initial position was overly broad, while the defendant argued no costs should be awarded for a settled motion.

The court declined to award costs, finding it could not determine which party achieved substantial success or whether the motion was unnecessary without hearing the merits.

The mortgagee brought a motion for judgment seeking possession of the property and payment of amounts due under a second mortgage, while the mortgagor brought an application for a reference to determine the amounts owing.

The mortgagor disputed various administrative and legal fees claimed by the mortgagee.

The court disallowed all disputed fees, finding no evidence they reflected real costs legitimately incurred, rendering them unenforceable penalties and violations of section 8 of the Interest Act.

The court determined the amounts owing based on principal, undisputed interest, and condominium arrears, ordered vacant possession, and awarded costs to the self-represented mortgagor.

The defendants brought a motion to dismiss the plaintiff's action for failing to timely pay prior costs awards, or alternatively, for an order requiring the plaintiff to post security for costs.

The court declined to dismiss the action, noting the costs orders had since been paid and the plaintiff's conduct was not contumelious.

The court also dismissed the request for security for costs, finding the defendants failed to prove the corporate plaintiff had insufficient assets in Ontario and that the defendants' delay in bringing the motion rendered such an order unjust.

The plaintiff brought a motion under Rule 45.02 for an order requiring the defendant to pay $180,000 into court from the proceeds of a property sale, pending the final disposition of the action.

The parties had previously entered into a joint venture to invest in real estate, and the plaintiff claimed a one-third interest in the proceeds based on a trust agreement.

The defendant argued the trust agreement was superseded by a subsequent agreement.

The court found that the plaintiff met the three-part test for an order under Rule 45.02, as there was a specific fund, a serious issue to be tried regarding the claim to the fund, and the balance of convenience favoured granting the relief to prevent dissipation of the funds.

The motion was granted.

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

The plaintiff brought a cross-motion seeking a sealing order for an affidavit and to exclude certain evidence allegedly obtained improperly by the defendants.

The court dismissed the cross-motion for a sealing order, finding the plaintiff did not meet the Sherman Estate test.

On the security for costs motion, the court found the defendants met their initial onus of showing good reason to believe the plaintiff had insufficient assets in Ontario, and the plaintiff failed to demonstrate sufficient assets.

The plaintiff was ordered to post security for costs in the amount of $105,000 on a pay-as-you-go basis.

The plaintiff brought a motion for leave to amend her statement of claim to add a corporate entity as a defendant in a wrongful dismissal action.

The responding parties opposed the motion, arguing that the applicable two-year limitation period had expired and that the revocation of Ontario Regulation 73/20 rescinded the COVID-19 limitation period suspension.

The court rejected this argument, finding that the limitation period was suspended from March 16, 2020, to September 14, 2020, and had not yet expired.

The motion to add the defendant was granted.

The defendants to the counterclaim brought a motion to set aside a noting in default.

Their counsel inadvertently missed the deadline to deliver a defence to the counterclaim after a negotiated resolution of a prior motion to strike.

The court found that the moving parties demonstrated a clear intention to defend the counterclaim, the delay was due to counsel's inadvertence, and the motion to set aside was brought promptly.

The court exercised its discretion to set aside the noting in default to allow the complex claims to be resolved on their merits.

The defendant in a long-term disability action brought a motion for an order requiring the plaintiff to attend a psychiatric Independent Medical Evaluation (IME).

The plaintiff opposed, arguing she had already attended a pre-litigation psychiatric assessment with a different doctor.

The court held that the pre-litigation assessment did not constitute a first examination under section 105 of the Courts of Justice Act, giving the defendant a prima facie right to the requested IME.

Alternatively, the court found sufficient evidence of a change in circumstances to warrant a further examination.

The motion was granted.

The defendant, a bank incorporated in Hong Kong, brought a motion to stay the plaintiffs' action for lack of jurisdiction or, alternatively, on the basis of forum non conveniens.

The plaintiffs, an Ontario resident and a Panamanian company, sued the defendant over funds held in Hong Kong accounts that were not transferred as instructed.

The court found it had jurisdiction simpliciter because the alleged tort of negligent misrepresentation occurred in Ontario.

However, the court exercised its discretion to stay the action, concluding that Hong Kong was the clearly more appropriate forum given the location of key witnesses, the governing law of the banking contracts, and the location of the funds.

The individual defendant, who is one of two shareholders and directors of the corporate defendant, brought a motion for leave to represent the corporation under Rule 15.01(2) of the Rules of Civil Procedure.

The plaintiff, who is the other shareholder and director, opposed the motion.

The court applied the Extend-A-Call factors and found that the corporation lacked the financial resources to retain counsel, and that the individual defendant was capable of comprehending the issues and advocating for the corporation.

The court granted the motion, subject to the condition that the individual defendant obtain authorization from the corporation to represent it.

The plaintiff brought a motion for leave to amend its statement of claim to add allegations of revenue misrepresentation related to a share purchase agreement.

The defendants opposed, arguing the amendments asserted a new cause of action after the expiry of the limitation period and were barred by a survival clause in the agreement.

The court granted the motion, finding that while the original pleading lacked the factual matrix for the new claim, the defendants had elicited the necessary material facts during discovery, meaning it was not a new cause of action.

The court also held that the survival clause did not bar the claim as it only required the claim to arise within two years, not that notice be given.

The applicant brought an ex parte motion seeking to appoint her husband as her litigation guardian and for leave to issue a certificate of pending litigation against a preconstruction condominium property.

The court granted the appointment of the litigation guardian as the applicant was incapable following a serious traffic accident.

However, the court dismissed the motion for a certificate of pending litigation.

Although there was a triable issue regarding the termination of the agreement of purchase and sale, the court applied the Dhunna factors and found that the equities favoured the respondent, noting the property was not unique, damages would be an adequate remedy, and there was another willing purchaser whose transaction was scheduled to close imminently.

The defendants brought a motion seeking production of original diagnostic imaging records, reattendance of the plaintiffs for discovery, and a further defence medical examination of the plaintiff by an orthopaedic surgeon.

The plaintiffs opposed, arguing the requests were disproportionate and that the defendants were only entitled to one physical examination.

The court granted the motion, finding the diagnostic imaging relevant and its production justified.

The court also ordered reattendance for discovery to answer follow-up questions.

Finally, the court ordered the further defence medical examination, limited to assessing the cause and prognosis of the plaintiff's labral tear, as the first examining physiatrist lacked the necessary expertise.

The defendants brought motions to dismiss the plaintiff's action for delay and for failure to comply with multiple court orders requiring her to answer undertakings given at her examination for discovery.

The plaintiff, a self-represented litigant, had failed to answer undertakings for nearly five years and breached several 'last chance' orders.

The court found the delay to be inordinate, inexcusable, and prejudicial to the defendants.

The court also found that the plaintiff's repeated failure to comply with interlocutory orders warranted dismissal.

The action was dismissed.

The moving party defendants brought a motion for an order requiring the plaintiff to provide particulars of its allegations of misrepresentation and intent, and to produce documents for inspection.

The plaintiff opposed, arguing the defendants already had the information and documents.

The court granted the motion in part, finding that the statement of claim did not satisfy the elevated level of particularity required under Rule 25.06(8) for pleadings of misrepresentation.

The court ordered the plaintiff to provide certain particulars and to produce the referenced documents for inspection.

The court dismissed the defendants' request to set a timetable for a potential motion to remove their counsel, finding it premature.

The court also granted the plaintiff's motion to validate service on one of the defendants.

In a multi-party motor vehicle accident action, the plaintiffs and two of the defendants entered into a Pierringer agreement.

The non-settling defendants brought a motion to compel production of the agreement, redacted only as to quantum.

The settling parties argued that only the 'essential terms' needed to be disclosed and that the agreement itself was protected by settlement privilege.

The court granted the motion, finding that the non-settling defendants faced potential procedural prejudice and that the need to protect them outweighed the public interest in maintaining settlement privilege over the non-financial terms of the agreement.