Rose Muscolino

The plaintiffs brought an action for damages alleging that the defendants' replacement of a culvert under a local road caused flooding and erosion on their property.

The defendants brought a Rule 21 motion to strike the claim, arguing it was barred by the statutory immunity provision in s. 18 of the Local Roads Board Act.

The court found that the replacement of a culvert constitutes maintenance of a local road, and therefore the plaintiffs' claim was barred by statutory immunity.

The motion to strike was granted without leave to amend.

The appellant appealed a scheduling order made by the Superior Court of Justice.

The Court of Appeal quashed the appeal, holding that a scheduling order is an interlocutory order because it does not determine the merits of the dispute.

Therefore, the appeal should have been brought to the Divisional Court, and the Court of Appeal lacked jurisdiction.

No costs were awarded.

The defendants moved to strike the plaintiff's statement of claim without leave to amend, arguing the court lacked jurisdiction over matters arising from the plaintiff's employment governed by a collective agreement.

The plaintiff, a former educational assistant, challenged her termination and the arbitrator's dismissal of her grievance, as well as alleged misconduct by her union and employer.

The court found that all claims either fell within the exclusive jurisdiction of the Ontario Labour Relations Board or disclosed no reasonable cause of action.

The motion was granted and the claim was struck without leave to amend.

The garnishee, Vale Canada Limited, brought a motion to dismiss garnishment proceedings initiated by the plaintiffs on a "with prejudice" basis.

The plaintiffs consented to a "without prejudice" dismissal.

The court found that the garnishment proceedings had been ongoing for approximately 23 years, during which the plaintiffs consistently failed to comply with court orders, including disclosure orders, an order for security for costs ($85,000), and a previous costs order ($6,653.65).

Citing the plaintiffs' significant and unexplained delays, their flouting of court orders, and the abuse of process, the court granted Vale's motion, dismissing the garnishment proceedings with prejudice.

The plaintiff brought a motion seeking to abridge time and validate service of three expert reports, compel answers to outstanding undertakings, and amend the statement of claim to include punitive damages and relevant legislation.

The court granted the abridgment and validation for two expert reports (Ms. Wainio-Smit and Dr. Lionel Marks de Chabris), finding reasonable explanations for the delay and that any prejudice could be cured by costs or adjournment.

The motion for the third, unserved expert report was adjourned.

The request to compel undertakings was dismissed due to insufficient evidentiary basis.

The motion to amend the pleadings to add a claim for punitive damages and statutory references was granted conditionally: it would be granted if the trial is adjourned due to the expert report issues, with a costs order in favour of the defendants; otherwise, it would be dismissed due to presumed prejudice from delay.

The applicant landlord sought overholding rent, damages to the premises, and unpaid water bills from the respondent tenant after the tenant failed to renew its commercial lease and eventually vacated the premises.

The court found it would be inequitable to enforce the full overholding rent provision due to delays in the court process, and ordered a reduced amount.

The court also awarded partial damages for repairs to the premises, dismissing claims that were unproven or already addressed by the tenant.

The tenant conceded liability for the water arrears.

Judgment was issued in favour of the landlord for $82,293.69.

The moving party sought leave to appeal an earlier endorsement of Justice Nadeau.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties in the total amount of $5,000.

The applicant tenant sought a declaration that it validly renewed its commercial lease or, alternatively, relief from forfeiture.

The tenant failed to provide written notice of renewal within the time required by the lease.

The court found that while the respondent landlord initially waived strict compliance during negotiations, it validly revoked that waiver by providing reasonable notice and a deadline for compliance.

The tenant failed to make diligent efforts to comply with the new deadline.

Consequently, the court held the tenant did not validly renew the lease and was not entitled to relief from forfeiture.

The plaintiff slipped and fell on an icy sidewalk outside a post office.

Over three years later, he moved to amend his statement of claim to add several third and fourth parties as defendants to the main action.

Two of the proposed defendants opposed the motion, arguing the claims were statute-barred under the Limitations Act, 2002.

The court found that the plaintiff failed to exercise reasonable diligence in investigating the cause of the ice build-up and delayed informing his counsel about a broken eavestrough.

Factoring in the COVID-19 limitation period suspension, the court concluded the limitation period had expired and dismissed the motion against the opposing parties.

The defendant in a personal injury case brought a motion seeking to admit two expert reports and allow two experts to testify.

The plaintiff had previously filed a complaint against the first expert (Dr. Marks) with the College of Physicians and Surgeons, leading the defendant to retain a second expert (Dr. Ford).

The court denied the defendant's request to file Dr. Marks' report and Dr. Ford's report, citing concerns about fairness and the potential for repetitive expert evidence.

However, the court permitted Dr. Marks to testify viva voce, but limited his evidence to observations and testing results, excluding medico-legal opinions.

Dr. Ford was also permitted to testify viva voce, but without reference to Dr. Marks' opinions.

Costs for the motion were reserved to the end of the trial.

An appeal from a costs order against Legal Aid Ontario (LAO) as a non-party funder in a family law dispute.

The application judge found that LAO engaged in an abuse of process by failing to adequately monitor and assess the merits of the defence it was funding in a case involving a vulnerable individual.

The Court of Appeal allowed the appeal and set aside the costs award, holding that LAO's role as a statutory funder does not expose it to non-party costs awards absent evidence of bad faith or improper purpose, and that requiring LAO to monitor litigation would impermissibly invade solicitor-client privilege and frustrate the statutory legal aid scheme.

Legal Aid Ontario brought a motion to re-open the evidence and vary a costs decision that held it liable for 50% of the full indemnity costs awarded against the respondent.

LAO sought to introduce evidence refuting the court's presumptions that it had received an expert report and notice of a Public Guardian and Trustee certificate earlier than it claimed.

The court dismissed the motion, finding that the presumptions did not constitute a 'mistake' under Rule 25(19)(b) of the Family Law Rules, that LAO had ample opportunity to address these issues prior to the costs decision, and that the proposed evidence would not have changed the result.

The applicant was injured in a motor vehicle accident and sought medical benefits for psychological services under two treatment plans.

The respondent denied the claims, arguing the treatments were either duplicative of previously approved plans or not reasonable and necessary.

The Tribunal found that the applicant failed to prove the disputed treatment plans were reasonable and necessary, noting that the applicant had not fully consumed previously approved treatments and had ceased engaging in the proposed treatment.

The application for benefits was dismissed.

The plaintiffs, judgment creditors of Transport Development Inc. (TDI), brought a motion seeking an order compelling Vale Canada Limited (garnishee) and two interested numbered companies to answer questions and produce documents related to the assignment of a contract originally between Vale and TDI.

The plaintiffs sought this information to quantify amounts for a garnishment hearing, alleging the assignment might have been to avoid garnishment.

The interested parties opposed, arguing garnishment rules apply only to "debts" not "contracts" and citing delay, cost, and privacy concerns.

The court found that Rule 60.08(16)(d) provided broad jurisdiction to determine "any other matter in relation to a notice of garnishment" encompassing assigned debts and contracts.

The court emphasized the duty of honest performance in contracts and the relevance of the subsequent assignment to determine rights and liabilities.

The motion for disclosure was granted, subject to a sealing order, with costs reserved.

The moving defendant sought dismissal of a long-standing civil action for delay under Rule 24.01 and the court’s inherent jurisdiction.

The court held that the delay, exceeding thirteen years from commencement, was inordinate and largely inexcusable, although it was not intentional and contumelious and the responding parties had rebutted the presumption that a fair trial was no longer possible.

The court nevertheless found that five years of unexplained post-2008 inactivity, coupled with non-response to defence inquiries and no realistic prospect of timely trial, amounted to an abuse of the civil justice system.

The claims against the moving defendant were dismissed under the court’s inherent jurisdiction.