Robert A. Muir

The plaintiffs brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside a registrar’s order dismissing their action for delay after they failed to set the action down for trial by the deadline imposed in a status hearing timetable order.

The court applied the contextual approach and the Reid factors governing motions to set aside registrar dismissals, including explanation for litigation delay, inadvertence in missing the deadline, promptness of the motion, and prejudice to the defendants.

The court found the missed deadline resulted from counsel’s inadvertence, the motion was brought promptly, and the plaintiffs had provided satisfactory explanations for brief periods of delay.

Although the limitation period had expired, the plaintiffs rebutted the presumption of prejudice and the defendants failed to demonstrate significant actual prejudice.

The registrar’s dismissal order was therefore set aside and a new timetable imposed.

The plaintiff moved for leave to amend its statement of claim to add a new defendant and several new causes of action arising from the termination of a lease involving advertising space on a building wall.

The proposed amendments included claims for wrongful interference with economic relations, conspiracy, unjust enrichment, breach of trust, rectification, and recovery of rents.

The court held that most of the proposed claims were statute‑barred under the two‑year limitation period in the Limitations Act, 2002 and rejected the plaintiff’s argument that the ten‑year limitation period in the Real Property Limitations Act applied merely because the dispute involved a lease of real property.

However, the court allowed a limited amendment adding the proposed defendant for a claim relating to alleged non‑payment of rent for November and December 2006, finding a genuine issue as to whether the RPLA applied to that specific claim.

The defendants moved under Rule 25.10 of the Rules of Civil Procedure for further particulars of allegations in a statement of claim arising from a partnership dispute involving ownership and management of an apartment building.

The defendants argued that the pleading alleged fraud and misrepresentation and therefore required detailed particularization under Rule 25.06(8).

The court reviewed the governing principles for ordering particulars, including that particulars are required only when the information is not within the knowledge of the requesting party and is necessary to permit a responsive pleading.

The court found that the statement of claim and the plaintiff’s reply to the demand for particulars sufficiently disclosed the material facts and were not bald allegations.

The motion for further particulars was dismissed.

The defendants brought a motion seeking production of the plaintiff’s former counsel’s litigation file, including time dockets, and an order requiring the plaintiff’s witnesses to re-attend cross-examinations in relation to a pending motion alleging that the action had previously been settled.

The defendants argued that references in the plaintiff’s affidavits waived privilege over the lawyer’s file.

The court held that the affidavits merely described the plaintiff’s settlement position and instructions to counsel and did not constitute a waiver of solicitor-client privilege.

While time dockets may in principle be producible subject to redactions for legal advice, the court found the additional dockets sought were not relevant to the issue of whether the parties had reached a binding settlement agreement.

The motion for production and continued cross-examinations was dismissed.

The plaintiffs sought leave under s. 103(6) of the Courts of Justice Act and Rule 42.02 of the Rules of Civil Procedure to issue a certificate of pending litigation in relation to a dispute over the right to remove and sell cable fixtures from industrial property pursuant to an asset marketing agreement.

The court held that the plaintiffs established a triable issue regarding an interest in land because the agreement granted rights to enter the land, remove fixtures, and enforce a security interest over them.

However, applying the equitable discretion and the Dhunna factors, the court found that the cable was not unique and that damages were readily quantifiable and would constitute an adequate remedy.

The court concluded that issuing a CPL would cause disproportionate prejudice to the property owner compared to the plaintiffs’ ability to recover damages.

Leave to issue the certificate of pending litigation was therefore refused.

The plaintiff brought a motion under Rule 48.11(b) of the Rules of Civil Procedure to restore an action to the trial list after it had been struck for failure to submit a trial certification form.

The court applied the test governing restoration following administrative dismissal for delay, including whether the delay was intentional, whether it was inordinate and inexcusable, and whether the defendants suffered prejudice.

Although the delay of approximately 31 months was found to be inordinate and not reasonably explained, the plaintiff successfully rebutted the presumption of prejudice and the defendants failed to establish actual prejudice affecting the fairness of a trial.

The court held that the absence of certain radiological studies did not demonstrate a substantial risk that a fair trial was no longer possible.

The action was therefore restored to the trial list, but no costs were awarded.

Following a reference determining compensation owed under s. 6(6) of the Arthur Wishart Act (Franchise Disclosure), 2000 after rescission of a franchise agreement, the court considered the appropriate costs award.

The successful franchisee plaintiffs sought substantial indemnity costs after obtaining an order requiring the defendants to pay $290,830.72 plus interest.

The defendants argued no costs should be awarded because the amount had effectively been conceded.

The court held that the plaintiffs were the successful party and entitled to costs, but rejected substantial indemnity costs absent reprehensible conduct or success under Rule 49.

Partial indemnity costs were fixed at $25,000 inclusive of disbursements and taxes.

The plaintiff brought a discovery motion seeking an order compelling a former employee to answer refused questions and produce documents relating to services provided to a former client after joining a competitor.

The claim alleged breach of confidence and misuse of confidential information following the departure of senior employees who subsequently serviced the same client at the competing firm.

The court applied the relevance principles governing examinations for discovery under Rules 30.03 and 31.06 of the Rules of Civil Procedure and considered proportionality under Rule 29.2.03.

The court found the requests were not a fishing expedition because the pleadings contained specific allegations and there was circumstantial evidence supporting the line of inquiry.

The refused questions were ordered to be answered and related documents produced, subject to redaction of irrelevant commercially sensitive information.

A proposed intervener sought leave under Rule 13.01 of the Rules of Civil Procedure to intervene as an added party in a defendant’s pending motion for summary judgment in a civil action.

The proposed intervener was the representative plaintiff in a certified class proceeding involving overlapping factual allegations but different legal theories from the individual plaintiffs’ action.

Although the court found that common issues of fact existed between the proceedings, it concluded that the proposed intervener had no direct interest in the subject matter of the individual action and would not be adversely affected by its outcome.

The court further held that the proposed intervener would not provide a useful contribution to the determination of the summary judgment motion and that intervention would unnecessarily expand the scope of the motion and increase costs.

Leave to intervene was therefore denied.

The defendants moved for an order requiring the plaintiff to post additional security for costs under Rule 56.01 of the Rules of Civil Procedure.

Although the plaintiff resided outside Ontario and the court found that the defendants had satisfied the threshold for ordering security, the plaintiff argued that the proceeding was fundamentally an oppression action under the Nova Scotia Companies Act.

The court held that the true nature of the claim was oppression based on the plaintiff’s status as a beneficial shareholder and allegations that corporate managers stripped profits to the detriment of that shareholder.

Section 7(3) of the Third Schedule to the Nova Scotia Companies Act prohibits requiring security for costs from a complainant bringing such an action.

As a result, despite finding that security would otherwise have been justified, the court dismissed the motion.

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 and to extend and validate service of the statement of claim.

The action arose from a motor vehicle collision and had been dismissed after no defence was filed within the prescribed period.

The court applied the contextual approach from appellate authorities governing registrar’s dismissals and considered the Reid factors, including explanation for litigation delay, inadvertence, promptness of the motion, and prejudice to the defendants.

Although the motion was not brought promptly, the failure to comply with Rule 48.15 was found to be inadvertent, the litigation delay was adequately explained, and the plaintiff rebutted the presumption of prejudice despite the expiry of the limitation period.

The dismissal was set aside and service validated, but the plaintiff was ordered to pay the defendants’ costs due to counsel’s repeated inattention in attempting service and advancing the proceeding.

Following dismissal of a motion to set aside a registrar’s order dismissing an action for delay under Rule 37.14 of the Rules of Civil Procedure, the court addressed costs of the motion.

The successful defendants sought substantial costs, with one defendant relying on an offer to settle to justify substantial indemnity costs.

The court reviewed the applicable principles under s. 131(1) of the Courts of Justice Act and Rules 57.01 and 57.03, emphasizing proportionality and reasonableness.

While accepting the reasonableness of one defendant’s costs outline, the court found another defendant’s claimed hours excessive.

Taking into account the offer to settle and overall fairness, the court fixed equal costs awards payable by the plaintiffs to each successful defendant.

Following a successful motion to amend a statement of claim to add new parties under Rule 5.04 of the Rules of Civil Procedure, the plaintiffs sought costs against the proposed defendants who opposed the amendment.

The plaintiffs requested partial indemnity costs with a portion on a substantial indemnity basis relying on a prior offer to settle.

The court held that the offer to settle contained no element of compromise because it was served before the responding parties filed materials and before the plaintiffs were entitled to costs.

Applying the principles under the Courts of Justice Act and Rule 57.01, the court fixed costs on a partial indemnity basis and declined to consider the offer to settle.

The respondent in an application brought a motion for security for costs under Rule 56.01(1)(d) of the Rules of Civil Procedure.

The court found that the applicant corporation had admitted it possessed no assets and appeared to have been incorporated solely for the purpose of bringing the application.

The moving party therefore satisfied the first stage of the test demonstrating a basis for security for costs.

The applicant failed to file any responding evidence establishing impecuniosity or demonstrating that its claim had a strong likelihood of success.

The court held that it was just in the circumstances to order staged security for costs totalling $18,271.62 and awarded the moving party partial indemnity costs of the motion.

The plaintiff brought a motion under Rule 6.01 of the Rules of Civil Procedure seeking an order that an accident benefits action be tried together with a related tort action arising from the same motor vehicle accident.

The court considered whether the proceedings shared common questions of law or fact and whether trying them together would promote efficiency and avoid inconsistent findings.

Applying factors relating to expediency, convenience, potential prejudice, and overlap of witnesses and expert evidence, the court found that the actions arose from the same accident and involved overlapping issues regarding injuries and damages.

The court concluded that hearing the matters together would reduce duplication of witnesses and trial time without causing meaningful prejudice.

The motion was granted and the actions were ordered to be tried together.

The plaintiffs brought a motion under Rule 5.04(2) of the Rules of Civil Procedure seeking leave to amend their statement of claim to add the provincial transportation authority as a defendant in a motor vehicle accident action.

They argued the claim was only discovered during the driver’s examination for discovery, when evidence allegedly revealed that inadequate highway signage contributed to the accident.

The proposed defendant argued the limitation period under the Limitations Act, 2002 had expired and that the claim could have been discovered immediately after the accident through reasonable investigation.

The court held that the alleged signage deficiencies were readily discoverable with modest due diligence shortly after the accident.

Because the limitation period had expired, leave to add the proposed defendant was refused.

Following a motion to strike portions of a statement of defence under Rule 25.11 of the Rules of Civil Procedure, the court determined the appropriate costs award.

The moving party had been largely successful, obtaining an order striking three of four impugned paragraphs.

Although the moving party sought partial indemnity costs exceeding $7,000, the court held the requested amount was disproportionate given the limited complexity and narrow scope of the motion.

Applying the principles under s.131 of the Courts of Justice Act and Rule 57, the court fixed costs at a reduced amount to reflect both proportionality and the moving party’s partial success.

The plaintiff brought a motion under Rule 25.11 of the Rules of Civil Procedure seeking to strike several paragraphs from a defendant’s statement of defence.

The impugned pleadings alleged that the action was malicious and sought elevated or non‑party costs against the plaintiff’s officers and directors.

The court held that allegations regarding a plaintiff’s motive for commencing litigation do not constitute a defence and that pleadings directed solely to potential costs consequences are improper.

The court struck the impugned paragraphs that related to improper motive and potential non‑party costs, while permitting a paragraph requesting dismissal of the action with full indemnity costs to remain as a general costs request.

Leave to amend was refused because the defects related to improper pleading rather than drafting deficiencies.

The defendants brought a motion under Rule 25.10 of the Rules of Civil Procedure seeking further particulars of allegations in a statement of claim arising from an alleged oral agreement for consulting building services.

The moving parties sought additional documentation relating to invoices from consultants and proof of payments made by the plaintiff.

The court reviewed the governing principles on ordering particulars, emphasizing that particulars are required only when the information is not within the requesting party’s knowledge and is necessary to enable a responsive pleading.

The court held that the plaintiff had already provided sufficient particulars through a detailed invoice attached to an affidavit and that the additional documents requested constituted evidence rather than particulars.

The motion was dismissed and the defendants were ordered to deliver their statement of defence.