Sabrina A. Lucenti

The plaintiff brought a motion for leave to deliver an expert economic loss report after the pre-trial conference had been completed.

The motion was brought pursuant to Rules 53.03(4) and 53.08 of the Rules of Civil Procedure.

The plaintiff argued that an accurate economic loss report could not be obtained until the trial date was fixed.

The court rejected both the plaintiff's argument based on the Simplified Procedure and the argument regarding the necessity of a fixed trial date.

The court found that the plaintiff failed to provide a reasonable explanation for the failure to comply with Rule 53.03(2) and dismissed the motion with costs fixed at $3,500 on a partial indemnity basis.

The defendant, Aviva Insurance Company of Canada, brought a motion to strike two Requests to Admit (RTAs) or, in the alternative, to withdraw deemed admissions that arose from their failure to respond to the RTAs.

The plaintiff argued that the non-response was deliberate and part of a pattern of uncooperative litigation conduct.

The court found the RTAs were not an abuse of process but allowed the withdrawal of admissions, finding a reasonable explanation (inadvertence) and no uncompensable prejudice to the plaintiff.

Despite the defendant's success on the motion, the court deprived them of costs due to their overall pattern of non-responsiveness and lack of cooperation, sanctioning their litigation conduct.

This endorsement addresses the costs of an unsuccessful motion for summary judgment brought by the Plaintiffs against the Defendant David Ryan.

The Defendant sought partial indemnity costs of over $100,000.

The Plaintiffs argued for costs to be reserved to the trial judge or fixed at $25,000, asserting that much of the work done for the motion would be reusable at trial.

The court found that the Plaintiffs should have realized the case was not suitable for summary judgment and that a significant portion of the work would not be reusable.

The court awarded the Defendant $60,000 in all-inclusive costs, payable within 30 days, but reserved the issue of expert report disbursements to the trial judge, acknowledging their potential reusability.

The plaintiffs, J.M.L. Holding Corporation and Gary Muchula, sought summary judgment against their former real estate solicitor, David Ryan, alleging professional negligence.

They claimed Mr. Ryan's conduct led to the erroneous sale of a waterfront property they did not intend to sell, seeking $550,000 in damages.

The court dismissed the motion, finding that the case presented genuine issues requiring a trial, including significant credibility and reliability issues between the parties, conflicting expert opinions on the standard of care and damages, and an incomplete evidentiary record, particularly regarding the buyer's perspective and the plaintiffs' intentions for the property.

The appellant appealed the dismissal of her motion for leave to amend her statement of claim seeking Long-Term Disability (LTD) benefits and damages.

The motion judge denied leave, finding the proposed amendments sought to withdraw an admission regarding the timely filing of an LTD benefits application and to add a statute-barred request for relief from forfeiture.

The Court of Appeal found the motion judge erred in concluding the amendments withdrew a factual admission, clarifying that the appellant's factual admission remained, and the amendments merely provided particulars and sought an alternative legal conclusion (relief from forfeiture) arising from the same facts.

The Court also held that the request for relief from forfeiture was not a new, statute-barred claim.

The appeal was allowed, and leave to amend was granted.

This motion for judgment sought to enforce an alleged settlement agreement in two related estate litigation actions concerning the estate of Beatrice Labrash.

The first action involved the Estate seeking to recover real property transferred to the deceased's son, Grant Labrash, by right of survivorship.

The second action was a challenge by Grant to the validity of the deceased's 2010 Will.

The court found that a settlement was reached between Grant and Derrick Lamarche, in his personal capacity and as Estate Trustee of Beatrice's Estate.

However, the settlement's enforceability was complicated by a crucial term involving the sale of a property (20 Park Crescent) that had been transferred to Hellan Lamarche personally and subsequently to her Estate Trustees (Derrick, Bradley Lamarche, and Annette Fishwick).

The court could not find that Bradley and Annette, who were not parties to the litigation and not clients of Derrick's counsel, had agreed to the settlement.

Consequently, the motion for judgment was denied without prejudice, allowing the moving party to seek further submissions on the court's authority to bind Hellan's Estate to the settlement.

Following the dismissal of the plaintiff's motion to amend her pleadings, the successful defendant sought partial indemnity costs of $37,000.

The plaintiff argued the amount was excessive and proposed $20,000.

The court noted the complexity of the motion but found the defendant's claimed costs, which were nearly double the plaintiff's full indemnity costs, could not be justified.

The court awarded the defendant costs in the amount of $22,000 inclusive of HST and disbursements.

The plaintiff brought a motion to amend her statement of claim to withdraw an admission that she had not applied for long-term disability benefits and to add a claim for relief from forfeiture.

The defendant opposed the motion, arguing the amendments sought to add new causes of action that were statute-barred.

The court dismissed the motion, finding the plaintiff failed to meet the test to withdraw an admission under Rule 51.05 and that the proposed amendments constituted new claims outside the limitation period.

The plaintiff corporation brought an action alleging conspiracy, fraud, and negligence against various defendants, including a law firm and the Ontario Provincial Police, arising from the transfer of a property following a power of sale.

The remaining defendants moved to strike the statement of claim under Rule 21.01(1)(b).

The court granted the motions, finding that the pleadings lacked the heightened particularity required for allegations of fraud and conspiracy, and failed to establish any duty of care owed by the police or the law firm to the plaintiff.

Furthermore, the claim against the police was a nullity due to the plaintiff's failure to provide the mandatory 60 days' written notice under the Proceedings Against the Crown Act.

Leave to amend was denied as the fundamental defects could not be cured.

The plaintiff brought a motion seeking to amend a previous order to include the issuance of a new writ of seizure and sale *nunc pro tunc*, or alternatively, leave to issue an alias writ.

The original writ had expired in 2013, and a 2014 order for renewal was not properly implemented due to counsel's oversight, which was not discovered until 2019.

The defendant, Timothy Murray, opposed the motion, arguing that he would suffer irreparable prejudice due to significant changes in his financial and legal status over the 13 years since the judgment, having reasonably assumed the plaintiff had abandoned the claim.

The court dismissed the motion, finding that the defendant had detrimentally changed his position in reliance on the plaintiff's inaction, and that granting the relief would cause great prejudice.

The defendant David Ryan brought a motion for a status hearing seeking dismissal of the action due to delay.

The court allowed the action to continue but noted the plaintiffs' significant indulgence and lack of diligence in advancing the claim.

Despite the plaintiffs meeting the onus to explain the delay, the court found the defendant's opposition to an extension of time was not unreasonable.

Consequently, the court ordered no costs for the motion.

The defendant brought a motion for a status hearing under Rule 48.14(5) of the Rules of Civil Procedure, seeking to dismiss the plaintiffs' lawyer negligence action for delay.

The plaintiffs opposed, arguing a prior order scheduling a summary judgment motion precluded dismissal.

The Master found the prior order did not prevent the status hearing but concluded the plaintiffs provided an acceptable explanation for the delay and rebutted the presumption of prejudice.

The motion to dismiss was denied, and the action was permitted to continue.

The plaintiff, a third-generation owner of a funeral home, sold his shares to the defendant and entered into a 10-year Transitional Consulting Services Agreement (TCSA).

Unhappy differences arose, leading the plaintiff to go on medical leave and claim constructive dismissal.

The court found the defendant's course of conduct, including improper termination of vehicle use, tracking hours, non-payment of commissions, removal of a photograph, and changing locks, amounted to constructive dismissal.

The plaintiff's claims for intentional infliction of mental suffering and discrimination under the Human Rights Code were dismissed.

Damages were awarded for lost salary, vehicle expenses, benefits, golf membership, and commissions.

The plaintiff successfully defended a summary judgment motion brought by the City of Barrie, which sought to dismiss the claim due to late notice under the Municipal Act.

In this costs endorsement, the court considered the plaintiff's request for partial indemnity costs and the City's submission to reserve costs to the trial judge.

Citing the principle that costs may be reserved when issues raised on the motion remain live, the court found it just to reserve the costs of the motion to the trial judge, as the issue of prejudice to the City from late notice still needed to be determined at trial.

Following a trial regarding a right of way over a laneway, both parties sought costs on a partial indemnity basis.

The court found that the defendant was substantially successful at trial, having successfully restricted the right of way to pedestrian access only and defeated the plaintiff's claim for damages.

The court awarded the defendant partial indemnity costs fixed at $70,000, discounting the requested amount to reflect the plaintiff's success on certain issues.

The plaintiff and defendant, adjoining landowners, disputed the existence and use of a right of way over a laneway between their properties.

The plaintiff sought to rectify the parcel register to show its right of way, while the defendant claimed the right of way had expired, been abandoned, or was restricted.

The court found that the plaintiff had a valid right of way that had not expired or been abandoned, and ordered the rectification of the title.

However, the court restricted the plaintiff's use of the right of way to pedestrian access only, finding that vehicular access was unsafe and not viable.

The plaintiff's claim for damages for lost rents and profits was dismissed for lack of proof.

The plaintiff, Battano Construction Limited, moved for default judgment against the defendant, Maram Building Corp. Maram, whose counsel had withdrawn, sought leave to be represented by its Director and Officer, Mary Pickard, and requested an opportunity to set aside the noting in default.

The court granted leave for Ms. Pickard to represent Maram and found that Maram had substantially complied with previous orders regarding costs and the motion for leave.

Consequently, the court granted Maram 15 days to file a motion to set aside the noting in default, adjourning Battano's default judgment motion pending the outcome.

The appellant appealed a decision of the Superior Court of Justice dismissing his motion for default judgment against the respondent law firms.

The respondents moved to quash the appeal for want of jurisdiction.

The Court of Appeal found that the order appealed from was interlocutory in nature, as it did not finally determine any issue in the proceeding.

Accordingly, jurisdiction lay with the Divisional Court, not the Court of Appeal.

The appeal was quashed without prejudice to the appellant's right to apply to the Divisional Court for leave to appeal.

Costs of $1,500 were awarded to each of the two moving parties.

Following a jury trial in a solicitor's negligence action where the plaintiffs were awarded $190,000, the court determined the issue of costs.

Although the plaintiffs beat their offer to settle, the court departed from the prima facie rule of substantial indemnity costs due to the improper conduct of plaintiffs' counsel and the perverse nature of the jury's damages findings.

Applying the principle of proportionality under Rule 1.1, the court significantly reduced the plaintiffs' costs claim from $237,535.25 to $129,316 on a partial indemnity scale.