Robert A. Muir

The defendant brought a motion seeking security for costs and an order requiring the plaintiff to serve an affidavit of documents in a commercial lease dispute involving allegations of wrongful eviction and a counterclaim for rent arrears.

Before the hearing, the defendant abandoned the request for security for costs and instead sought an order requiring the plaintiff’s principals to undertake personal liability for any costs orders.

The court refused to grant that relief, holding that it had not been requested in the notice of motion, the principals were not parties to the action, and the circumstances did not justify piercing the corporate structure.

The court also found the document-production aspect of the motion premature.

The motion was dismissed and costs were awarded to the plaintiff, though reduced due to the plaintiff’s lack of transparency regarding its financial circumstances.

The plaintiffs brought a motion under Rule 26.01 of the Rules of Civil Procedure seeking leave to amend their statement of claim in an action alleging breach of contract, misrepresentation, negligence, trespass, breach of good faith, and unjust enrichment arising from agreements permitting advertising on municipal waste bins.

The defendant opposed certain amendments on the basis that they introduced new causes of action after the expiry of the applicable limitation period.

The court held that the proposed amendments merely provided additional particulars and factual context for an already pleaded breach of good faith claim related to the alleged non-disclosure of municipal advertising directives.

Because the amendments did not advance a new cause of action, the limitation period concern did not bar them.

Leave to amend the statement of claim was granted.

The defendants brought a motion under Rule 25.11 of the Rules of Civil Procedure to strike portions of the statement of claim in a civil action alleging intentional interference with economic relations, inducing breach of contract, misfeasance in public office, and Charter damages arising from a police investigation that allegedly led to the plaintiff’s termination from employment.

The impugned paragraphs referred to information obtained through a public complaints investigation under the Police Services Act.

The court held that sections 83 and 95 of the Police Services Act create a statutory privilege rendering documents, statements, and information obtained during the complaints process inadmissible in civil proceedings.

Allegations based on such privileged material were therefore struck.

However, the court permitted allegations relating to the fact that a complaint was made and the reasons for it, as those facts were not protected by the statutory privilege and could be relevant to the pleaded claims.

The plaintiff brought a motion to compel the individual defendant to attend an examination for discovery on his own behalf and on behalf of the corporate defendant in a wrongful dismissal action.

The defendants argued the examination should be delayed until outstanding production issues regarding the plaintiff’s medical records were resolved.

The court held that while discovery may be delayed in certain circumstances where significant production issues remain, the plaintiff had made some medical production and the defendants had not shown that further records were necessary prior to the examination.

The court also found that by agreeing in a discovery plan that the defendant would be examined in Toronto, the defendants had waived objections related to service requirements for out-of-province witnesses.

The motion was granted and the examination ordered to proceed before the defendants’ production motion.

Following dismissal of the plaintiff’s motion to set aside a registrar’s order dismissing the action as abandoned and to substitute a different defendant, the court addressed the issue of costs.

The proposed defendant sought partial indemnity costs of $9,994.99.

The court applied the discretion under s.131 of the Courts of Justice Act and the factors in Rule 57.01 of the Rules of Civil Procedure, emphasizing proportionality and fairness.

Although the motion involved some complexity due to the misidentification of the proper defendant and required cross-examinations and a factum, the court found the amount sought excessive.

Costs were fixed at a reduced amount on a partial indemnity basis.

The plaintiff brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside a registrar’s order dismissing the action as abandoned under Rule 48.15 for failure to serve the statement of claim within the required time.

The plaintiff also sought an extension of time for service and an amendment substituting the correct defendant on the basis of misnomer.

The court applied the Reid factors governing motions to set aside administrative dismissals and held that the plaintiff failed to provide a satisfactory explanation for the litigation delay, did not bring the motion promptly, failed to establish inadvertence, and did not rebut the presumption of prejudice arising after the expiry of the limitation period.

The court further held that the proposed substitution was not a case of misnomer but an attempt to add a new party after the limitation period expired.

The motion to set aside the dismissal and the request to amend the claim were therefore refused.

The plaintiff brokerage firm moved under Rule 25.11 of the Rules of Civil Procedure to strike several paragraphs of the defendants’ statement of defence as scandalous, frivolous, vexatious, or non‑compliant with pleading requirements.

The impugned allegations described a toxic workplace environment and managerial conduct said to have forced the individual defendants to submit resignation letters, and also alleged the action was brought for an improper purpose amounting to abuse of process.

The court held that most of the contested paragraphs were relevant to the central issue of whether the defendants voluntarily resigned or were effectively dismissed and therefore were necessary to allow a full defence.

Allegations relating to the plaintiff’s motive were also permitted because they supported a pleaded abuse of process defence.

Only one sentence describing the workplace atmosphere as widely known in the community was struck as irrelevant and included merely for colour.

Following a motion seeking dismissal of the plaintiff’s action for non‑compliance with prior court orders and seeking payment of cancellation fees arising from missed defence medical examinations, the court addressed the issue of costs.

The earlier motion had resulted in partial relief: the court declined to dismiss the action but ordered the plaintiff to attend defence medical examinations, pay cancellation fees, and clarify certain undertakings.

Considering the divided success of the parties and the plaintiff’s non‑compliance with prior orders, the court concluded that neither side achieved sufficient success to justify a costs award.

The court also declined to award costs to counsel for the Public Guardian and Trustee due to limited involvement and communication issues leading to the attendance.

The court therefore ordered that there be no order as to costs.

The plaintiffs brought a motion for leave to amend their statement of claim to add claims on behalf of their minor children under the Family Law Act and to add their own insurer as a defendant under the OPCF 44 Family Protection Endorsement due to potential underinsurance of the defendants.

The insurer opposed the amendment, arguing that the claim was barred by the 12‑month limitation period under the endorsement because the plaintiffs ought to have known earlier that their damages exceeded the available $200,000 coverage.

The court considered the limitation trigger articulated by the Court of Appeal, requiring a body of evidence giving a reasonable chance of persuading a judge that damages exceed the policy limits.

On the record before the court, the medical evidence and damages assessment were insufficiently developed to determine that the limitation period had expired.

Leave to amend the claim and add the insurer was granted, with the insurer permitted to plead a limitation defence.

Costs decision following a refusals motion concerning whether documents and information sought on discovery were protected by statutory privilege under s. 266(2) of the Education Act.

The moving party’s motion to compel answers was largely unsuccessful after the court determined the privilege applied, though the moving party succeeded on a limited issue regarding an investigator’s report and several other matters were resolved consensually.

The successful responding party sought over $15,000 in partial indemnity costs.

The court held the requested amount was excessive given the simplicity of the factual issues and that certain claimed time related to general discovery obligations rather than the motion itself.

Applying proportionality and fairness principles under the Courts of Justice Act and Rules of Civil Procedure, the court awarded reduced costs of $6,000 against the moving party, with no costs payable by co-defendants who had merely responded to the motion.

Following successful motions by the defendants for security for costs under Rule 56.01(1)(d) of the Rules of Civil Procedure, the court addressed the appropriate costs awards for those motions.

The defendants sought costs on a partial indemnity basis exceeding $11,000 and $16,000 respectively.

The plaintiff argued that the requested amounts were excessive for motions of this nature.

Applying the principles under section 131 of the Courts of Justice Act and Rule 57.01, and emphasizing proportionality under Rule 1.04(1.1), the court concluded the requested amounts were excessive given the straightforward issues and the partial success achieved by the defendants.

The court awarded costs of $7,000 inclusive of HST and disbursements to each set of moving defendants.

Dispute arising after the sale of a jointly owned apartment building pursuant to a partition order.

The applicant purchased the property from the respondent co-owners and the parties disagreed over responsibility for the real estate commission and the fees of an independent lawyer appointed to oversee the sale process.

The court held that the agreement of purchase and sale made the respondent vendors solely responsible for the real estate commission, despite earlier sale conditions contemplating shared responsibility.

However, the court found the applicant remained obligated to pay its 25% share of the independent lawyer’s post‑agreement fees because the lawyer had been appointed to act impartially for the benefit of all partners.

An order was made directing payment of the applicant’s share of those fees from escrow funds.

Following motions for security for costs brought by two defendants, the court addressed the costs of those motions.

The defendants had obtained security for costs orders but in amounts lower than requested.

The court considered the factors under s. 131 of the Courts of Justice Act and Rules 1.04, 56.01, and 57.01 of the Rules of Civil Procedure.

While the moving parties were largely successful, reductions were warranted due to incomplete success and procedural issues related to timing of a statement of defence.

The court declined to award substantial indemnity costs and instead fixed fair and reasonable partial indemnity costs payable by the plaintiff.

The plaintiff brought a motion under Rule 34.15 of the Rules of Civil Procedure seeking to compel a private school to answer refused questions on discovery and produce unredacted documents identifying non‑party students and parents who may have information relevant to claims including defamation, malicious prosecution, and breach of contract.

The school resisted disclosure relying on the statutory privilege for Ontario Student Records under s. 266(2) of the Education Act.

The court found the plaintiff’s narrower interpretation of the privilege persuasive but concluded it was bound by prior authority holding that students’ names and addresses form part of the OSR and are protected by the statutory privilege.

As a result, the court held the information could not be disclosed without consent of the students or parents.

The motion to compel answers and production was therefore dismissed, subject only to disclosure that would not identify non‑party students or their parents.

The defendants brought a motion under Rule 56.01(1)(a) of the Rules of Civil Procedure seeking security for costs against a foreign corporate plaintiff with no assets in Ontario or Canada.

The plaintiff argued it had substantial assets in the United States and that any Ontario costs order could be enforced in California, a reciprocating jurisdiction.

The court held that the defendants met their initial burden because the plaintiff was ordinarily resident outside Ontario.

The plaintiff failed to provide sufficient financial evidence demonstrating its ability to satisfy a potential costs award.

The court therefore exercised its discretion to order staged security for costs while reducing the amount sought by the defendants.

Defendants brought motions for security for costs under Rule 56.01(1)(a) of the Rules of Civil Procedure against a foreign corporate plaintiff resident in Russia with no assets in Ontario.

The court confirmed the two‑stage framework for security for costs motions and held the defendants met the initial burden because the plaintiff was ordinarily resident outside Ontario.

The plaintiff failed to demonstrate impecuniosity or other circumstances making a security order unjust, despite having substantial funds abroad.

The court exercised its discretion to order staged security for costs, including amounts related to pending motions to discharge a certificate of pending litigation.

The court also granted a sealing order over a document containing non‑party investors’ financial information and awarded partial indemnity costs to the plaintiff for the confidentiality motion.

The defendants moved for security for costs under Rule 56.01(1)(d) of the Rules of Civil Procedure, arguing that one plaintiff was a nominal party and that the corporate plaintiff lacked sufficient assets to satisfy a potential costs award.

The court held that the individual plaintiff was not a nominal plaintiff because he was personally a party to the alleged contract and asserted personal claims in the pleadings.

However, the corporate plaintiff failed to provide reliable financial disclosure demonstrating sufficient assets and had not produced basic financial records or tax filings.

Applying the established two‑step test for security for costs, the court found good reason to believe the corporation could not satisfy a costs order and exercised its discretion to order staged security.

Security of $120,000 for each set of defendants was ordered, payable in three installments tied to the litigation timetable.

The plaintiff brought a motion under Rule 34.15 of the Rules of Civil Procedure seeking an order compelling the defendant contractor to answer certain undertakings and refused questions arising from an examination for discovery.

The disputed questions concerned information about bonuses allegedly paid by the project owner to the contractor for work performed by the plaintiff subcontractor.

The defendant argued that the bonus issue constituted a new claim improperly raised in the plaintiff’s reply rather than the statement of claim and therefore refused to answer discovery questions on the topic.

The court held that the bonus issue formed part of the existing pleadings and that any challenge to the adequacy of the pleading should have been brought by motion to strike or amend.

The questions were relevant to the issues as pleaded and were ordered to be answered within a specified time.

The plaintiff brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside a registrar’s order dismissing the action for delay after the plaintiff failed to set the matter down for trial within the deadline established by a status hearing order.

The court reviewed the governing principles for setting aside registrar dismissals, including the Reid factors: explanation for litigation delay, inadvertence in missing the deadline, promptness of the motion, and absence of prejudice to the defendant.

Although the plaintiff failed to adequately explain a significant period of delay, the court found the missed deadline resulted from inadvertence and that the motion was brought promptly once the dismissal came to the plaintiff’s attention.

The plaintiff successfully rebutted the presumption of prejudice arising from the expiry of the limitation period.

Applying a contextual analysis and emphasizing the importance of prejudice, the court concluded it was in the interests of justice to set aside the dismissal and allow the action to proceed.

The plaintiff brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside a registrar’s order dismissing the action for delay under Rule 48.14.

The court considered the contextual test derived from appellate authorities, including the Reid factors: explanation for litigation delay, inadvertence, promptness of the motion, and prejudice to the defendant.

Although the motion was not brought promptly, the court found the delay in the litigation adequately explained, the failure to meet the set‑down deadline resulted from counsel’s inadvertence, and the defendant would suffer no significant prejudice if the action were revived.

Applying a contextual analysis favouring determination of matters on their merits, the court set aside the dismissal order and imposed a litigation timetable.