Robert F. Goldstein

The defendant brought a motion to set aside a default judgment arising from an equipment lease dispute after she claimed she first learned of the action when served with a notice of examination in aid of execution.

The court applied the test from HSBC Securities Canada Inc. v. Firestar Capital Management Corp., considering delay, explanation for default, and whether there was an arguable defence on the merits.

Although the motion was brought without unreasonable delay, the defendant failed to provide a plausible explanation for the default and did not rebut evidence of personal service.

The court also held that her proposed defence—that the lender should have ensured she obtained independent legal advice before signing as co-lessee and guarantor—was not arguable in the absence of undue influence, fraud, or misrepresentation.

The motion to set aside the default judgment was therefore dismissed.

The defendant sought leave to amend a statement of defence to withdraw admissions made more than two decades earlier acknowledging the validity of a personal guarantee given in connection with a corporate loan.

The proposed amendment would allow the defendant to assert defences of undue influence, lack of proper independent legal advice, and vulnerability.

The court held that the motion was governed by rule 51.05 of the Rules of Civil Procedure because the amendment effectively sought withdrawal of admissions.

The moving party failed to establish that the amendment raised a triable issue, that the original admissions were inadvertent or based on wrong instructions, or that the withdrawal would not cause prejudice.

Allowing the amendment would also constitute an abuse of process because the defendant had relied on the validity of the guarantee in prior litigation and sworn evidence.

Ontario-resident plaintiffs sued a London hotel in Ontario after a slip and fall in a hotel bathroom during a vacation in the United Kingdom.

The defendant hotel moved to dismiss the action for lack of jurisdiction.

Applying the presumptive connecting factors set out in Club Resorts Ltd. v. Van Breda, the court held there was no real and substantial connection between Ontario and the dispute.

The hotel had no office, employees, or targeted marketing in Ontario, and the mere fact that the hotel could be booked through a Canadian travel rewards website did not establish that it carried on business in the province.

The court also found that no contract connected with the dispute was formed in Ontario.

The defendant brought a motion to stay the Ontario action on the basis that the court lacked jurisdiction and that Quebec was the more appropriate forum.

The court applied the presumptive connecting factors from Club Resorts Ltd. v. Van Breda and concluded that the defendant carried on business in Ontario through its involvement in developing and commercializing a titanium dioxide extraction process and its ownership interest in the patent-holding company.

The court therefore found a real and substantial connection sufficient to ground jurisdiction.

On the forum non conveniens analysis, although certain factors slightly favoured Quebec, most were neutral and the defendant failed to demonstrate that Quebec was clearly the more appropriate forum.

The plaintiff’s chosen forum was not displaced and the stay was refused.

The appellant appealed an arbitrator’s ruling under ss. 45(2) and (3) of the Arbitration Act, 1991 after the arbitrator dismissed a motion seeking to strike or limit the respondent’s claims based on an exclusion clause in a distribution agreement.

The court held that the arbitrator’s decision was interlocutory rather than a final award because it did not dispose of the substantive dispute and instead required factual findings at a full hearing.

Under the Arbitration Act, interlocutory rulings in arbitration are not subject to appeal.

The court further found no error in the arbitrator’s conclusion that interpretation of the contractual limitation clause required consideration of the factual matrix.

The appeal and challenge to the arbitrator’s costs award were dismissed.

In an application concerning a dispute over the beneficial ownership of a condominium allegedly funded by a loan, the applicant sought leave under Rule 39.02(2) of the Rules of Civil Procedure to file a supplementary affidavit after cross-examinations had been conducted.

The proposed affidavit asserted that payments previously identified by the respondent as repayment of the condominium loan were actually repayment of a different loan.

The court applied the governing factors for leave to file additional affidavit evidence after cross-examination, including relevance, responsiveness to cross-examination, prejudice, and the explanation for failing to introduce the evidence earlier.

Although the respondent made strong submissions opposing the request, the court accepted counsel’s explanation that the omission was due to oversight and found any prejudice could be compensated through costs and procedural directions.

Leave was granted on strict terms including a timetable for responding evidence and costs payable to the respondent.

The defendant retailer appealed a master's order refusing further inspection and testing of ski bindings that were alleged to have malfunctioned and caused a skiing accident.

The master had concluded that the prejudicial effect of destructive testing outweighed its probative value and that direct expert evidence was required to justify the testing.

The court held that the master erred in law by requiring direct expert evidence and by rejecting admissible hearsay evidence permitted on motions under the Rules of Civil Procedure.

The master also misapprehended the evidentiary record when assessing the qualifications of the proposed technician and the technical assertions contained in the affidavits.

Applying the correct Rule 32.01 test, the court found a reasonable possibility that further testing could reveal useful evidence and that its probative value outweighed the potential prejudice.

The appeal was allowed and testing of the binding was permitted.

A non-profit housing co-operative applied under the Co-operative Corporations Act to terminate a member’s membership and occupancy rights, obtain a writ of possession, and recover rent arrears.

The respondent did not appear at the hearing despite proper service and prior notice.

The court reviewed the co‑op board’s decision on a reasonableness standard and considered whether the member received procedural fairness in the termination process.

Finding the board had provided multiple opportunities to respond, complied with principles of natural justice, and had a reasonable basis for termination based on rent arrears and ongoing disruptive conduct, the court upheld the decision.

The application was granted, membership terminated, and costs awarded.

A former lawyer sought declarations that payments from Legal Aid Ontario to his solicitor account constituted “wages” under the Wages Act and were therefore largely exempt from garnishment to satisfy a judgment debt.

He also requested an accounting of funds remitted pursuant to a notice of garnishment and access to Legal Aid’s billing system.

The court held that payments made to a self‑employed lawyer for Legal Aid work are not “wages” within the meaning of the Wages Act, drawing an analogy to prior authority holding that physician payments from OHIP are not wages.

The applicant had not properly brought a motion to vary the garnishment and the statutory framework did not support the requested retroactive relief.

The court also found that Legal Aid Ontario had already provided a full and adequate accounting of payments applied toward the garnishment.

Following an unopposed motion striking a corporate plaintiff from a statement of claim due to lack of corporate capacity after dissolution, the defendants sought costs on a substantial indemnity basis against both the corporate and individual plaintiffs.

The court considered whether the conduct of the litigation justified elevated costs and whether the individual plaintiff should be personally liable.

The court held that substantial indemnity costs are reserved for exceptional circumstances such as unproven allegations of fraud or litigation misconduct, and those circumstances were not present.

The evidence linking the individual plaintiff to the corporation was insufficient to impose costs against him personally.

Costs were awarded only against the corporate plaintiff on a partial indemnity basis.