Robert E. Houston

The plaintiff retained new counsel shortly before trial and brought a motion for leave to amend the statement of claim, conduct further discovery, and file an expert report, despite the action having been set down for trial.

The court granted the motion, finding that the proposed amendments did not add new causes of action and that the defendants would not suffer irremediable prejudice.

The court also permitted further discovery, noting that the recent production of audited financial statements justified the plaintiff's change in strategy.

The plaintiff brought a motion for summary judgment to recover a $340,000 loan secured by a second mortgage on the defendants' home.

The defendants argued the interest rate was ambiguous, the transaction was unconscionable, and one defendant lacked independent legal advice.

The court granted summary judgment, finding no evidence that the loan was excessive or unconscionable, and noting the defendants were represented by counsel during the transaction.

The plaintiff sued an accounting firm and a lawyer for professional negligence relating to the preparation and implementation of a family trust for tax planning purposes.

The defendants and a third-party lawyer brought motions for summary judgment to dismiss the claims.

The court found no genuine issue requiring a trial, concluding that neither the lawyer nor the accounting firm were retained to form the trust or prepare the trust deed.

The court granted summary judgment and dismissed the plaintiff's claims, which consequently dismissed the third-party claims for contribution and indemnity.

Following a summary judgment motion and mini‑trial under Rule 20.04(2.2) of the Rules of Civil Procedure concerning whether the moving defendants possessed a contractual right of indemnity against subcontractor defendants, the court had previously dismissed the indemnity claim.

The remaining issue concerned the costs of the mini‑trial and related steps.

Applying s.131 of the Courts of Justice Act and Rule 57.01, the court held that the moving defendants unnecessarily prolonged the litigation, failed to meaningfully engage in settlement efforts, and advanced an indemnity theory unsupported by evidence.

The conduct justified a costs award on a substantial indemnity basis.

The moving defendants were ordered to pay substantial indemnity costs to both the plaintiffs and the subcontractor defendants.

Following dismissal of the action for delay, the defendants sought substantial indemnity costs based on allegations of fraud made against them and the plaintiff’s delay in prosecuting the action.

The court rejected the argument that the action itself constituted an abuse of process merely because a prior action existed, noting the claims were not identical and the matter had not been decided on its merits.

However, the court found the plaintiff’s delay in prosecuting the action was contumelious, inexcusable, and unexplained, which justified an elevated costs award.

Substantial indemnity costs were therefore awarded to the defendants despite the absence of a trial on the merits.

The court also noted that while a Rule 49 offer had been served, the award of substantial indemnity costs made it unnecessary to determine whether that offer independently justified enhanced costs.

Following the dismissal of summary judgment motions brought by the defendants, the plaintiff sought costs on a partial indemnity basis for successfully defending the motions.

The court considered the factors under Rule 57 of the Rules of Civil Procedure, including success, complexity, proportionality, and the conduct of the parties.

While the defendants’ motions were brought reasonably and with the objective of shortening the proceedings, the plaintiff was substantially successful in resisting them, though some issues remained for trial.

The court concluded that costs should be fixed immediately rather than deferred to the trial judge.

Costs were awarded to the plaintiff on a partial indemnity basis.

The defendants brought a motion to dismiss the plaintiff’s action for delay and failure to comply with a case conference order requiring answers to written discovery questions.

The court considered the principles governing dismissal for delay under Rule 24.01 of the Rules of Civil Procedure and sanctions for failure to comply with interlocutory orders under Rule 60.12.

The plaintiff failed to provide responding motion materials, failed to comply with a court-ordered timetable, and delayed approximately 21 months in responding to written discovery questions.

The court found the delay inexcusable and contumelious and held that the plaintiff failed to rebut the presumption of prejudice arising from delay after the limitation period.

The action against the moving defendants was dismissed with costs.

The defendants brought motions for summary judgment to dismiss the plaintiff's action regarding a right of first refusal on a quarry property.

The plaintiff had operated the quarry under a 1991 agreement that expired in 2006, but continued to pay rent.

The court found the agreement was a lease that renewed on a year-to-year basis.

However, the court held that whether the right of first refusal also renewed, and whether a binding agreement of purchase and sale was formed, were genuine issues requiring a trial.

The defendants' motions for summary judgment were dismissed and an expedited trial was ordered.

The plaintiff was required to show cause at a status hearing why its action for fraudulent conveyance should not be dismissed for delay.

The defendants sought dismissal, arguing the plaintiff took no steps for extended periods.

The Master found that while a 12-month delay was unexplained, the plaintiff had been actively pursuing the action against another defendant.

Finding no non-compensable prejudice to the defendants, the Master declined to dismiss the action and ordered a timetable for next steps.