Ryan D. Garrett

The plaintiff brought a motion to abridge the time for service of a cost of care expert report, which was served 34 days before the pre-trial conference instead of the required 90 days under Rule 53.03(1).

The defendant opposed the motion, arguing there was no reasonable explanation for the delay and that admitting the report would cause prejudice.

The court granted the motion, finding that plaintiff's counsel provided a reasonable explanation of inadvertence due to a busy practice, and that the defendant would not suffer non-compensable prejudice given the trial was still 14 months away when the report was served.

The moving parties sought to recognize and enforce an interlocutory Mareva injunction issued by the Quebec Superior Court against the responding parties in Ontario, and to appoint an interlocutory receiver over two Ontario hydroelectric companies owned by the individual respondent.

The court held that interprovincial interlocutory Mareva injunctions can be recognized and enforced, relaxing the traditional finality requirement for foreign non-monetary orders.

The court recognized and enforced the Quebec Mareva Order, subject to an allowance for ordinary business expenses, but declined to appoint a receiver as it was disproportionate and unnecessary.

The third parties, Steven Sheppard and SKS Law LLP, brought a motion to strike the defendant Lansdowne Office Inc.'s third party claim against them for disclosing no reasonable cause of action.

The third party claim sought contribution and indemnity under the Negligence Act, alleging that the third parties (the plaintiff's solicitors) provided negligent advice to the plaintiff regarding a commercial lease.

The court dismissed the motion, finding that the alleged negligent advice was not attributable to the plaintiff and therefore could ground a third party claim for contribution and indemnity.

The defendant, Denise Lee Downing, brought a motion under Rule 2.1.01 of the Rules of Civil Procedure to dismiss the civil action initiated by the plaintiffs, Bernard Sparr and D’Vine Estates Sarl.

The plaintiffs' action sought substantial damages, alleging economic harm due to the defendant's false testimony in a prior family law proceeding.

The court found that the plaintiffs' civil action was an indirect attempt to re-litigate issues already decided in the family court, where the plaintiff Sparr had previously appealed unsuccessfully and had been declared a vexatious litigant.

The court concluded that the action constituted an abuse of process and granted the defendant's motion, dismissing the plaintiffs' statement of claim.

The applicant sought specific performance to purchase a jointly owned property or, alternatively, an order for sale under the Partition Act.

The core dispute revolved around the enforceability and proper exercise of a right of first refusal clause in an agreement between the parties.

The court found that specific performance was not appropriate as damages would be an adequate remedy.

Crucially, the court determined that the right of first refusal was not properly exercised by either party due to lack of good faith and failure to follow the agreed-upon valuation mechanism.

Consequently, the parties remained joint owners until the property's eventual sale, and the net proceeds are to be shared equally, subject to an accounting for expenses and income.

This decision concerns a request for reconsideration of a prior order granting leave to the plaintiffs to amend their statement of claim.

The defendant argued that an inadvertent error in the draft amendments quoted in the previous reasons was material, suggesting an attempt to introduce a negligent misrepresentation claim after the limitation period.

The court clarified that the actual proposed amendments were less problematic than the version inadvertently quoted.

The court affirmed its previous decision to grant leave to amend, finding the actual proposed amendments were more benign and did not warrant a different outcome.

No costs were awarded for the reconsideration request.

The plaintiffs brought an action against several physicians involved in the treatment of their son, alleging a failure to diagnose Fragile X Syndrome, which led to the birth of a second child with the same genetic disorder.

The plaintiffs moved to amend their statement of claim to provide greater particularity, while the defendant physician moved to strike the claim, arguing he owed no duty of care to the parents of his patient.

The Superior Court of Justice granted the motion to amend, finding it did not introduce a new, statute-barred cause of action.

The court dismissed the motion to strike, holding that it was not plain and obvious that a novel duty of care could not be recognized between a physician and the parents of a patient in the context of genetic testing and family planning.

The defendant moved to stay a civil action brought by the plaintiff, her former spouse, which sought to lift a freezing order and preservation order previously granted in their ongoing family law proceeding.

The court granted the stay, finding that the civil action was an impermissible collateral attack and barred by issue estoppel, as the plaintiff was attempting to relitigate a final order made between the same parties in another forum.

The defendant's request for security for costs was dismissed as unnecessary given the stay.

The applicant sought to enforce a right of first refusal to purchase a jointly owned property at its 2019 fair market value.

The respondent argued the right was never validly exercised and sought an immediate sale under the Partition Act.

The court reserved its decision on the merits of the right of first refusal but ordered the immediate sale of the property at current fair market value, noting that damages would be an adequate remedy if a breach of contract occurred.

The Applicant sought three orders: to declare a Small Claims Court decision a nullity, to have a motion to strike defences heard by the Superior Court, and to transfer two Small Claims Court actions to the Superior Court.

The Applicant alleged judicial bias in the Small Claims Court.

The Superior Court dismissed the application, finding it was not properly before the court under Rule 14.05(3) of the Rules of Civil Procedure, as it was essentially an interlocutory appeal not yet ripe for the Divisional Court.

The court also found no new facts to warrant transferring the Small Claims Court actions to the Superior Court, despite the Applicant's concerns about fairness, noting other Deputy Judges were available.

The plaintiff, Truestar Investments Ltd., was entirely successful in its action, including a motion for summary judgment, which resulted in the setting aside of fraudulent property transfers.

This endorsement addresses the plaintiff's request for partial indemnity costs.

The defendant, Iris Baer, did not dispute Truestar's entitlement to costs but challenged the quantum.

The court considered the factors under Rule 57.01(1) of the Rules of Civil Procedure, noting the complexity of the matter, the importance of the issues (recovering assets for creditors in a related bankruptcy), and the conduct of the defendant.

Specifically, Baer's late introduction of an argument necessitated two separate appearances for the summary judgment motion, increasing Truestar's costs.

The court found Truestar's counsel's hourly rates and docketed time reasonable, especially given the senior counsel's experience and the additional work required as the moving party.

The court fixed Truestar's partial indemnity costs at $28,900, inclusive of fees, disbursements, and HST, and awarded an additional $1,750 for costs submissions.

The plaintiff, Moira Caron, sued for damages following a slip and fall in her workplace kitchenette.

The court dismissed the action, finding that the defendants, as occupiers, met their positive duty of care under the Occupiers' Liability Act by maintaining a reasonable system of cleaning, inspection, and call service.

The court also found that the plaintiff failed to prove that her ongoing complaints and inability to return to work after January 2011 were caused by the slip and fall incident, attributing them instead to a pre-existing anxiety disorder.

The applicant sought an order without notice to dispense with service of a notice of application on 79 registered homeowners.

The underlying application sought to remove a restrictive covenant from two lots to allow for a new road.

The court found that the applicant failed to establish that service was impractical under rule 16.04(1) based merely on cost and potential delay.

The court dismissed the request to dispense with service but ordered substituted service by leaving copies at the homes and sending them by regular mail.

The plaintiff, as assignee of a bankrupt company's trustee, previously obtained summary judgment setting aside the transfer of several properties to the defendant.

A remaining issue concerned a mortgage on three of those properties, which had been discharged by a non-party numbered company controlled by the defendant prior to the bankruptcy.

The numbered company sought equitable relief to set aside the discharge and re-register the mortgage, claiming the discharge was a unilateral mistake.

The court dismissed the request, finding that the discharge was a deliberate, fully-informed decision made to clean up title, and did not meet the demanding preconditions for the equitable remedy of rectification.

The plaintiff, as assignee of a trustee in bankruptcy, brought a motion for summary judgment seeking to set aside the transfer of six properties from the bankrupt corporation to the spouse of its sole director.

The transfers occurred less than three months before the corporation filed a notice of intention to make a proposal in bankruptcy.

The court found that the transfers were made at undervalue between non-arm's length parties, constituted a fraudulent preference, and were fraudulent conveyances.

The court declared the transfers void and ordered them set aside, subject to a further hearing regarding a mortgage on some of the properties.

The applicant, widow of the deceased, sought interpretation of an ambiguous will and also advanced alternative claims for equalization, dependent's relief, and constructive trust.

The respondents, children of the deceased, brought a motion for document production and opposed the applicant's motion to separate the will interpretation from the alternative claims.

The court found the applicant's joinder of civil and family law claims procedurally incorrect.

The court ordered the severance of the family law claims (equalization, unjust enrichment, support) and their transfer to Family Court, with a stay.

The will interpretation, rectification, or invalidity issues will continue as an application under the Rules of Civil Procedure.

The respondents' production motion was dismissed as premature.

The applicants sought to maintain an interlocutory injunction enjoining a former employee and his new company from soliciting clients.

The court found that the applicants continued to be at risk of irreparable harm from the loss of goodwill and business.

The injunction was maintained but amended to prohibit direct solicitation for a one-year period while allowing the respondents to accept unsolicited work from the applicants' clients.

The applicants, lessors of a heritage property operating as a hotel, brought an application to determine the repair obligations under a commercial lease.

The lessors argued the lessee was responsible for all repairs, while the lessee argued the lessors were responsible for external repairs.

The court applied principles of contract interpretation and found that the lease explicitly excluded 'external walls' from the lessee's repair obligations.

The court further determined that, in the context of this specific building, 'external walls' included the mansard roofs, dormer windows, externally exposed chimneys, soffits, and fascia, making their repair the responsibility of the lessors.

Following a summary judgment motion and mini‑trial under Rule 20.04(2.2) of the Rules of Civil Procedure concerning whether the moving defendants possessed a contractual right of indemnity against subcontractor defendants, the court had previously dismissed the indemnity claim.

The remaining issue concerned the costs of the mini‑trial and related steps.

Applying s.131 of the Courts of Justice Act and Rule 57.01, the court held that the moving defendants unnecessarily prolonged the litigation, failed to meaningfully engage in settlement efforts, and advanced an indemnity theory unsupported by evidence.

The conduct justified a costs award on a substantial indemnity basis.

The moving defendants were ordered to pay substantial indemnity costs to both the plaintiffs and the subcontractor defendants.

On a rule 20.04(2.2) mini-trial, the moving defendants sought a declaration that an implied oral contract with a blasting contractor contained a right of indemnity arising from a quarry fly rock incident.

The court held that while the evidence showed a long-standing business relationship and shared expectations about operational responsibility and safety, it did not establish any oral or implied agreement to indemnify.

Applying the implied terms jurisprudence, the court found such a term was not necessary for business efficacy and failed the officious bystander test.

The indemnity claim was dismissed, and the matter was left to proceed to trial on remaining issues.