Robert I. Frank

The plaintiff sought costs following a successful motion for leave to examine a non-party pursuant to Rule 31.10.

The plaintiff claimed partial indemnity costs of $19,926.08, arguing the motion was necessary due to the non-party's refusal to cooperate.

The non-party opposed the costs award, contending that as a non-party he had no obligation to consent and that the relief sought was overly broad.

The court awarded costs to the plaintiff as the successful party, finding the motion was necessary and the non-party's lack of cooperation justified the motion.

Costs were fixed at $17,500 on a partial indemnity basis, inclusive of disbursements and taxes.

This costs endorsement addresses the allocation of costs following the defendants’ successful motion to dismiss or stay the action due to the plaintiff’s failure to comply with a prior costs order.

The court reviews the parties’ written submissions, finds the defendants’ costs reasonable, and orders the plaintiff to pay costs on a substantial indemnity basis due to her conduct during the motion.

The court also rejects the plaintiff’s request for costs against the defendants’ lawyer personally.

The court considered a motion by the defendants to dismiss or stay the plaintiff’s action due to her failure to pay a prior costs order.

The court reviewed the procedural history, including the plaintiff’s repeated abusive conduct, failure to comply with court orders, and unsuccessful motions in this and other proceedings.

The court stayed the action, giving the plaintiff a final opportunity to pay the outstanding costs, failing which her action would be dismissed without further notice.

The court considered two motions: the plaintiff’s motion to restore the action to the trial list and the defendant’s motion to dismiss for delay.

The court found that the plaintiff failed to provide a reasonable explanation for significant periods of delay and failed to demonstrate that the defendant would suffer no non-compensable prejudice if the action proceeded.

The court dismissed the plaintiff’s motion to restore and granted the defendant’s motion to dismiss for delay, awarding costs to the defendant.

The decision addresses whether coverage for Extra Expense and Professional Fees under insurance policies issued to two Ontario summer camps is subject to the $1,000,000 sublimit in the Infectious Disease Extension, following business interruption due to COVID-19.

The court finds that both Extra Expense and Professional Fees are subject to the $1,000,000 sublimit, rejecting the plaintiffs’ arguments for additional coverage.

The court also addresses principles of insurance contract interpretation and the onus of proof in such disputes.

The defendant brought a motion to set aside an ex parte order granting a certificate of pending litigation (CPL) on a property, alleging the plaintiffs failed to make full and fair disclosure of material facts.

The court found significant non-disclosure regarding business ownership, property funding, and the timing of a trust agreement, as well as issues with a plaintiff's affidavit.

The motion was granted, the CPL order was set aside, and the CPL was discharged, with costs awarded to the defendant.

The plaintiff, Cristiana Ilicea, brought a motion to amend her statement of claim to correct the name of the Toronto Transit Commission (TTC) and to add Kai Bong Tong and Po-Chun Eleana Tong as defendants, replacing John Doe.

The TTC took no position.

Kai Bong Tong conceded that misnomer applied to him.

The central issue was whether the claim against Po-Chun Eleana Tong was statute-barred under the Limitations Act, 2002.

The court found that the plaintiff had overcome the presumption of discoverability under s. 5(2) of the Limitations Act and that there was a genuine issue for trial regarding the limitation period.

The motion was granted, allowing the amendments and granting leave to Po-Chun Eleana Tong to plead a limitation defence.

The plaintiff brought a motion seeking leave to compel a non-party (American Express) to produce a credit card statement and for punitive damages against the defendant for alleged misconduct.

This motion followed a previous unsuccessful attempt by the plaintiff to obtain the same document directly from the defendant, which was dismissed by another Associate Justice who also ordered that further discovery-related motions required leave.

The court dismissed the current motion, finding that leave was required and had already been effectively denied, applying principles of issue estoppel and abuse of process.

The court also found no evidence to support the plaintiff's claim for punitive damages.

A non-lawyer, Stuart Murray, sought leave to represent the plaintiff corporation, Cowal Chalmers Inc., in this action.

The defendant opposed the motion, citing Murray's disbarment and alleged inability to represent the corporation effectively.

The court, applying Rule 15.01(2) factors, granted leave, finding that as the sole shareholder, officer, and director, Murray was intricately connected to the corporation and reasonably capable of representation.

The court also found the corporation was financially unable to retain counsel, emphasizing access to justice.

Arguments regarding Murray's disbarment and a potential conflict of interest due to a third-party claim against him were considered and dismissed as not precluding his representation.

The applicant, Framatome Canada, brought a motion seeking disclosure and production of company documents retained by the respondent, William Cooper, after his termination, along with a list of retained files, re-attendance for cross-examination, and leave to amend its notice of application.

Cooper opposed, arguing the motion was an abuse of process and that he had an agreement to retain the documents.

The court granted Framatome Canada's motion, finding the documents relevant for testing Cooper's assertions and that the motion was not an abuse of process.

The plaintiff, Theodore Jiujias, brought an urgent, ex parte motion for leave to issue a Certificate of Pending Litigation (CPL) against a property owned by defendants Michael Chun Ho Lau and Aaron Storr.

Jiujias, a creditor of Lau, alleged that Lau fraudulently conveyed his interest in the property to his spouse, Storr, and a company controlled by Storr (ASML Holdings Inc.), for nominal consideration, shortly after being served with a statement of claim in a prior mortgage action where Lau was in default of over $1.1 million.

The property was subsequently mortgaged for its market value and listed for sale.

The court applied the three-part Grefford test, finding a high probability of success in the underlying action, sufficient evidence of intent to defeat or delay creditors (noting numerous badges of fraud), and that the balance of convenience favored granting the CPL to prevent dissipation of equity.

The motion was granted.

The defendant, IBM Canada Ltd., brought a motion to strike certain pleadings from the plaintiff's Second Amended Statement of Claim.

The impugned pleadings alleged systemic age discrimination by IBM U.S. and referenced employment circumstances of IBM U.S. employees, which the plaintiff claimed were connected to his wrongful dismissal and age discrimination by IBM Canada.

The court dismissed IBM Canada's motion, finding the pleadings relevant to the claims of systemic discrimination and punitive damages, particularly given the alleged operational connection between IBM U.S. and IBM Canada regarding the plaintiff's employment decisions.

The dismissal was conditional on the plaintiff making proposed amendments to narrow the scope of the allegations.

The Paragon Defendants, having successfully dismissed the action against them, sought costs for the dismissal motion, cross-motion, and the action.

The self-represented plaintiff opposed the quantum and scale of costs.

The court fixed costs on a substantial indemnity basis, finding the plaintiff's conduct obstructive and unreasonable, despite her self-represented status.

The court also addressed the sufficiency of the Bill of Costs without dockets, finding the description of activities sufficient for assessment.

The plaintiffs brought a motion under Rule 32.01 of the Rules of Civil Procedure seeking an order to permit their consultant to conduct a Phase Two Environmental Site Assessment of a property.

The plaintiffs argued the assessment was necessary to determine if the property was contaminated, which was relevant to their claims of misrepresentation by the defendants regarding the property's environmental status and to the remedies sought (specific performance with abatement or return of deposit).

The defendants opposed, arguing the plaintiffs had waived an environmental condition in the agreement of purchase and sale and that the motion was delayed and an abuse of process.

The court granted the plaintiffs' motion, finding the inspection necessary and probative for the trier of fact, noting no prejudice to the defendants, and deeming the delay not unreasonable.

The court also provided directions for the parties to agree on a timetable for the inspection, mediation, and trial, and on the terms of the inspection.

The defendants (Paragon Security, Sam Reza, and Ronald Crabb) brought a motion to dismiss the plaintiff's action due to her default on a security for costs order and various prior costs orders.

The self-represented plaintiff, Tanya Rebello, filed a cross-motion seeking the judge's recusal, stays of the dismissal motion (based on a certificate of stay and a Supreme Court of Canada reconsideration motion), an order for costs assessment and production of dockets, and variation of the security for costs order.

The court dismissed all aspects of the plaintiff's cross-motion, finding no basis for recusal or stays, and that the plaintiff was not entitled to a costs assessment or production of dockets.

The court granted the defendants' dismissal motion, concluding that the plaintiff had abused the court process through dilatory tactics and failure to comply with court orders, making dismissal a just sanction.

The defendants brought a motion to discharge a Certificate of Pending Litigation (CPL) registered against their property, arguing that the plaintiffs failed to make full and fair disclosure on the ex parte motion to obtain the CPL, that there was no triable issue regarding the plaintiffs' claim to an interest in the property, and that equitable factors favored discharge.

The plaintiffs opposed, arguing delay and disputing the defendants' grounds.

The court dismissed the defendants' motion, finding that the defendants' extensive delay in bringing the motion was sufficient grounds for dismissal.

The court further found that the plaintiffs had made full and fair disclosure and that there was a triable issue regarding the plaintiffs' claim for specific performance, with equitable factors favoring the plaintiffs.

The defendants brought motions seeking to remove the plaintiffs' counsel, Julian Falconer and Falconers LLP, and for the production of portions of their file concerning advice given to plaintiff Bradley Blair regarding a complaint to the Ombudsman and a related judicial review application.

The defendants argued that counsel was a potential witness, an "unsworn witness," or had a conflict of interest based on a duty of loyalty, and that solicitor-client privilege had been waived.

The court dismissed both motions, finding no deemed waiver of privilege, no likelihood of counsel being a material witness, no "unsworn witness" concern given the nature of prior interactions, and no duty of loyalty conflict.

The defendants, Quintet Ventures Inc. and related entities, brought a motion to stay the action in favour of arbitration, citing arbitration clauses in the Share Purchase Agreement and Shareholders Agreement.

The plaintiffs, Andrew Spasiw and Astute Ventures Ltd., opposed the motion, arguing that their claims of fraudulent misrepresentation and oppression, along with equitable remedies, fell outside the arbitration clauses, and that a stay would violate their Charter rights.

The court found the pith and substance of the plaintiffs' claims to be contractual, falling within the broad scope of the arbitration agreements.

The court rejected the plaintiffs' arguments regarding legal incapacity, invalidity of the agreement, non-arbitrability of the subject matter, undue delay, and alleged Charter violations.

The motion to stay the action was granted, and the plaintiffs were ordered to pay costs.

This decision concerns a motion for costs brought by the defendants, Alexander Gerstein and Ethan Gerstein (the "Moving Defendants"), after the plaintiffs discontinued their action and agreed to vacate a certificate of pending litigation (CPL) on the Moving Defendants' property.

The Moving Defendants sought full indemnity costs, alleging egregious conduct by the plaintiffs, including material misrepresentations and omissions when obtaining the ex parte CPL, unfounded fraud allegations, and uncooperative conduct during the motion.

The court found that the plaintiffs' numerous and significant failures to make full and fair disclosure, coupled with their belated and uncooperative conduct, amounted to a material misrepresentation.

The court awarded full indemnity costs of $115,000 to the Moving Defendants, finding the plaintiffs' conduct sufficiently egregious and reprehensible.

The plaintiff, Krista Saarinen, brought a motion to compel the defendant, Rogers Communications Ltd., to answer refusals from discovery regarding termination packages of other employees and the defendant's HR practices for without-cause terminations.

Rogers initially refused based on relevance, arguing the plaintiff was terminated for cause and that other employees' packages were irrelevant to Bardal factors.

The court found the questions relevant because the plaintiff's claim extended beyond common law notice to implied contractual terms based on company policy/practice.

Rogers then asserted settlement privilege, but the court rejected this argument, finding that Rogers failed to provide any evidence to support the claim of privilege.

The motion was granted, compelling Rogers to answer the questions and pay costs to the plaintiff.