Richard H. Shekter

Following a successful motion to strike claims against an individual defendant without leave to amend, the successful defendants sought costs.

The court awarded the individual defendant substantial indemnity costs for defending the action, as the plaintiff had made bare allegations of fraud based solely on his ownership of the corporate defendant.

The court awarded partial indemnity costs for the pleadings motion itself, finding no reason to apply a punitive scale to a normal interlocutory motion.

The plaintiff insurer brought an action against an auto body shop, its owner, its manager, and an appraiser for fraud, conspiracy, breach of contract, and trespass following an investigation into fraudulent repair invoices.

The defendant auto body shop and its owner brought a motion to strike various claims.

The court struck the personal claims against the owner without leave to amend, finding insufficient material facts to pierce the corporate veil or establish personal liability for the torts.

The court also struck the trespass claim against the auto body shop with leave to amend to plead vicarious liability, but declined to strike background paragraphs explaining the insurer's investigation.

The defendants brought a motion to enforce a Rule 49 settlement agreement concerning a motion for particulars and to set aside their noting in default.

The core dispute revolved around the interpretation of the phrase "we will comply with the Rules" regarding the delivery of the statement of defence.

The court found that the plaintiff's understanding (delivery within 20 days under Rule 18) was objectively reasonable, while the defendants' undisclosed intention to bring a motion to strike, which would defer defence delivery, was not within the plaintiff's reasonable contemplation.

Consequently, the court determined that the plaintiff had accepted the defendants' repudiation of the settlement, meaning there was no settlement agreement to enforce.

However, the court exercised its discretion to set aside the noting in default, finding that the defendants had consistently demonstrated an intent to defend and moved promptly.

The motion to enforce the settlement was dismissed, but the noting in default was set aside, with specific terms imposed for future procedural steps.

No costs were awarded due to divided success and tactical conduct by both parties.

The defendants moved for a stay of the plaintiffs' action until the plaintiff, Tan Duc Ngo, completed a neuropsychological assessment.

This assessment had been previously attempted but terminated due to the plaintiff's health issues, leading to a prior motion before Di Luca J. to compel re-attendance, which was denied without prejudice to renew if new evidence of improved health emerged.

The current motion for a stay was dismissed by Edwards J., who found it an attempt to circumvent Di Luca J.'s order without presenting the required new evidence.

However, the court, acting as case management judge, ordered the plaintiff's counsel to obtain a medical report addressing the plaintiff's current ability to undergo the assessment and to testify at trial, and to explain any discrepancies.

Costs were to be resolved by the parties or through written submissions.

The plaintiff insurer brought a motion to extend the deadline for setting the action down for trial, effectively seeking to avoid the Registrar's dismissal of the action for delay.

The court applied the test for setting aside a dismissal order, including the Reid factors.

Although the plaintiff failed to adequately explain its 19-month delay or prove inadvertence, the court granted the extension because the defendants failed to establish actual prejudice resulting from the delay.

However, due to the plaintiff's lengthy unexplained delays and conduct, the court ordered the successful plaintiff to pay the defendants $30,000 in substantial indemnity costs.

The Ontario Provincial Police and the Crown appealed an order by Nordheimer J. determining that certain materials seized under a search warrant were subject to litigation privilege and therefore not potentially evidence in any criminal proceeding.

The Court of Appeal held that the order affected the enforcement or implementation of the search warrant, which is a judicial order made in a criminal investigation.

The court determined that judicial orders directed at the enforcement or implementation of a criminal order are themselves criminal in nature.

Consequently, no appeal lies to the Court of Appeal in a criminal proceeding under the Courts of Justice Act, and the appeal was quashed.

A motion for directions regarding the proper route of appeal in a matter involving solicitor-client privilege and litigation privilege over documents and audio files seized by the Ontario Provincial Police.

The moving parties sought clarification on whether the Court of Appeal for Ontario had jurisdiction to hear the appeal.

The single judge in chambers declined to hear the motion and adjourned it to be heard by a three-judge panel, holding that questions of the court's jurisdiction must be decided by a panel, not a single judge.

The Milborne defendants sought leave to file a Fresh as Amended Statement of Defence.

The plaintiffs opposed a specific sentence in the proposed pleading, which alleged that plaintiff Charles Moon used "sham/shell corporations" to hide personal involvement and remain judgment proof in other business activities.

The court, applying principles for pleading similar facts, found the impugned allegation too vague and broad, leading to disproportionate complexity and an unwarranted "fishing expedition" into Moon's past business dealings.

Leave to amend was granted, but with the exclusion of the problematic sentence.

The plaintiffs, having been successful on an underlying motion, sought $156,437.17 in costs.

The defendants, who were the moving parties on the underlying motion, argued for costs not exceeding $10,000.

The court considered the complexity and duration of the motion, the defendants' adjournment requests, their continuation of the motion to strike conspiracy claims despite decisive authority, and the plaintiffs' offer to settle.

The court found the plaintiffs' requested amount to be extraordinary and disproportionate to the nature of the pleadings motion, which was decided on written submissions.

Comparing to similar cases where costs ranged from $3,300 to $10,000, the court fixed the plaintiffs' costs at $9,000, including a $1,000 discount for the defendants' reasonable expense in responding to the plaintiffs' overreaching demand.

The plaintiffs' offer to settle was not considered a real compromise under Rule 49.13.

The defendants brought a motion under Rule 21.01(1)(b) to strike out pleadings of conspiracy in the amended Statement of Claim.

The defendants sought an adjournment pending the outcome of leave applications to the Court of Appeal in related Divisional Court decisions, which was denied due to prior agreements between counsel.

Applying the binding Divisional Court decision in Jevco, the court held that the doctrine of merger could not be raised at the pleadings stage to strike a conspiracy claim.

The motion was dismissed.

Following a successful motion for leave to appeal an order refusing to strike conspiracy claims alleged to merge with fraud claims, the moving defendants sought $20,052.74 in costs.

The court considered the reasonableness of the time spent on research, drafting materials, and waiting time for the motion to be heard.

The judge held that the requested amount was excessive, particularly given that much of the work had already been completed for the initial motion and that waiting time in court should not generally be borne by the losing party.

Balancing the complexity of the legal issue with proportionality considerations, the court awarded a reduced amount.

Costs were fixed at $9,500 inclusive of HST and disbursements.

The defendants sought leave to appeal an order refusing to strike a conspiracy claim pleaded alongside fraud in an action by an insurer alleging fraudulent statutory accident benefit claims.

The defendants argued that the conspiracy claim merged with the underlying fraud and was redundant.

The court reviewed conflicting authorities regarding the doctrine of merger at the pleadings stage, including cases distinguishing between conspiracy based on a predominant intent to injure and conspiracy based on unlawful means.

The motion judge had declined to strike the claim and left the issue of merger to trial.

The court found reason to doubt the correctness of that decision and held that the broader question of whether merger can ever be applied at the pleadings stage was an issue of general importance.

Leave to appeal was therefore granted.

The defendants brought a Rule 21.01(1)(b) motion to strike a conspiracy claim from a statement of claim alleging fraudulent Statutory Accident Benefits Schedule (SAB) insurance claims.

The plaintiff insurer alleged that the defendants conspired to submit fraudulent invoices for treatment services not rendered and sought damages arising from the payments made.

The court applied the doctrine of merger, holding that where a plaintiff pleads that defendants conspired to commit a fraud and also carried out that fraud, the conspiracy claim merges with the tort of fraud and becomes redundant.

Because the damages alleged were solely attributable to the fraud and not to a stand-alone conspiracy, the conspiracy claim disclosed no independent cause of action.

The conspiracy pleading was struck with leave to amend the claim to clarify that the allegations are grounded in fraud.

The moving law firm sought approval of a contingency fee agreement and settlement involving a catastrophically injured plaintiff represented by a litigation guardian.

The court was required to determine the reasonableness of the contingency fee agreement under s. 24 of the Solicitors Act following direction from the Court of Appeal that fairness and reasonableness be assessed separately.

Considering the complexity of the liability issues, the catastrophic damages, the litigation risk including potential contributory negligence, and the substantial work performed, the court held the 25% contingency fee reasonable.

The court emphasized that the assessment of contingency fees focuses on recovery achieved rather than docketed time alone.

The contingency fee agreement and proposed legal fees were approved.

The defendant pleaded guilty to three offences under section 122 of the Securities Act for trading in securities without registration and in violation of two cease trading orders from the Ontario Securities Commission.

The defendant operated Strategic Gifting Group, which solicited donations for charities, remitted 10% to the charities, and distributed shares in Dixon Perot & Champion Inc. to donors, representing inflated valuations.

The defendant had previously been sentenced to 21 months and 3 years for related securities violations.

The court imposed a sentence of 6 months consecutive to existing sentences, along with probation and restitution obligations, applying the totality principle to avoid a crushing cumulative sentence while maintaining deterrence and denunciation.

Following the dismissal of an appeal, the successful parties sought costs of $17,790.17 on a partial indemnity basis.

The unsuccessful appellant argued that the claimed fees were excessive, particularly the time spent preparing the factum and the attendance time for the hearing.

The court considered the factors under Rule 57 of the Rules of Civil Procedure and the principle that costs should be fair and reasonable rather than strictly reflective of actual legal expenses.

The court found that certain hours claimed for factum preparation were excessive and that the hearing occupied only a half day.

Costs were fixed at $14,000 inclusive of HST and disbursements.

The defendant appealed a master’s order refusing to compel answers to discovery refusals and production of additional financial documents in a fatal motor vehicle accident action involving dependency claims under the Family Law Act.

The appeal challenged the master’s refusal to require the surviving spouse to answer questions about post‑accident income and dividends and to produce corporate and financial documents sought by the defendant’s expert.

The court held that the master applied the correct relevance test and did not commit a palpable and overriding error in determining that questions relating to post‑accident investment income were irrelevant to the dependency claim in the circumstances of a single‑income household.

The court also upheld the master’s discretionary decision to deny several production requests as premature or unnecessary, particularly where the materials had not been pursued during discovery or involved non‑parties.

The appeal was dismissed and the discovery rulings were upheld.

The defendants brought a motion to stay the plaintiff’s claim under s. 9 of the Real Estate and Business Brokers Act, 2002 and s. 106 of the Courts of Justice Act, arguing the consulting agreement was an unlicensed real estate brokerage commission relating to the sale of a physiotherapy business.

The plaintiff asserted the transaction primarily involved the transfer of OHIP licences rather than the sale of a business.

The court held the characterization of the transaction involved disputed facts and mixed elements potentially inside and outside REBBA.

Because the applicability of REBBA was not clear and the evidentiary record was incomplete, a discretionary stay would be inappropriate.

The alternative argument that the claim was premature was also rejected.