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 vendor moved for partial summary judgment in an action arising from a failed real estate transaction for a property and kennel business.

The plaintiff purchasers had refused to close the transaction, claiming the agreement was void because there was no meeting of the minds regarding a corporate share purchase.

The court found that the agreement was a valid, binding contract and that the plaintiffs had repudiated it because they lacked the necessary financing.

Consequently, the court dismissed the plaintiffs' action and ordered that their one-hundred-thousand-dollar deposit be forfeited to the defendant.

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.

The moving party brought a motion for leave to appeal an order dated October 6, 2023.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $5,000 all inclusive.

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 moving defendants brought a motion for directions regarding which version of a Reference Plan should be registered on title following a boundary dispute judgment.

The moving defendants argued for an April 2020 draft plan, while the plaintiff and responding title company argued for the June 2020 final plan.

The court found that the surveyor had corrected an error in the draft plan and that the final June 2020 plan accurately reflected the prior judgment.

The motion was dismissed, and the June 2020 plan was ordered to be registered.

Costs were awarded to the responding title company.

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 brought a motion to set aside an administrative dismissal of her action against the Greater Sudbury Police Services Board and a former police sergeant.

The action was dismissed in 2018 due to delay, but the defendants had initially consented to setting it aside before withdrawing consent.

The court found that the plaintiff had a reasonable explanation for the delay, which was largely attributable to her former counsel's inadvertence and the defendants' own delays.

The court also found no significant actual prejudice to the defendants.

The motion to set aside the dismissal was granted.

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 appellant appealed the dismissal of her Small Claims Court action against the respondents.

The deputy judge had dismissed the action under Rule 12.02(3) on the basis that it was commenced after the expiry of the applicable limitation period.

The Divisional Court allowed the appeal, finding that the appellant was denied procedural fairness because the deputy judge had only solicited written submissions on whether the action was an abuse of process, not on the limitation period defence.

The dismissal order was set aside and the matter remitted to the Small Claims Court.

The self-represented plaintiff commenced an action against the lawyers and a consultant acting for a corporation in which he is a minority shareholder, alleging negligence and enabling oppression.

The court initiated a Rule 2.1 review to determine if the claim was frivolous, vexatious, or an abuse of process.

The court found that while the plaintiff may eventually have a viable claim depending on the outcome of his main oppression action, the current claim against the corporation's professionals was premature and an abuse of process.

The action was dismissed without prejudice, with leave required to recommence after the main action concludes.

The defendants were successful on a motion to regularize the self-represented plaintiff's statement of claim.

The court awarded partial indemnity costs to the defendants, noting that the plaintiff's combative approach and refusal to accept constructive direction necessitated the motion and the participation of all defense counsel.

The respondent sold his funeral home business to the appellant and was retained as general manager under a ten-year fixed-term contract.

Following a deterioration in the relationship, the appellant engaged in a course of conduct that included removing the respondent's company vehicle, tracking his time, and changing the locks.

The respondent went on medical leave due to depression and anxiety caused by the appellant's conduct and eventually sued for constructive dismissal.

The trial judge found the respondent was constructively dismissed and awarded damages for the remainder of the contract.

The Court of Appeal dismissed the employer's appeal, finding no error in the trial judge's conclusion that the respondent had not condoned the conduct despite the delay in bringing the action, nor in the calculation of damages.

The moving party brought a motion for leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $3,000 to each of the three responding parties, for a total of $9,000.

The responding party successfully defended a written motion and sought costs on a full or substantial indemnity basis.

The moving party argued for nominal costs due to the responding party's alleged disregard for court rules.

The court found no basis for full indemnity costs and noted that the responding party's verbal offer to settle did not comply with Rule 49.

Applying the principles of proportionality, fairness, and reasonableness, the court awarded the responding party partial indemnity costs of $10,500 inclusive of disbursements.

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.