Sabrina A. Lucenti

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 defendant, Michel Royer, brought a motion to set aside default judgments totaling over $800,000 obtained against him by multiple plaintiffs.

The plaintiffs' claims arose from indignities to human remains committed by the co-defendant owner of a funeral home where Royer lived and volunteered.

Royer had retained a lawyer to defend the actions, but due to the negligence of his lawyer and the failure of the plaintiffs' lawyer to provide notice before noting him in default, judgments were entered against him.

The court applied the test for setting aside a default judgment, finding that Royer moved promptly upon learning of the judgments, had a plausible excuse for the delay, and possessed an arguable defence on the merits.

The motion was granted and the default judgments were set aside.

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.

The plaintiff was struck by a vehicle while riding his bicycle and sued the driver and the municipality, alleging the intersection was dark due to burnt-out streetlights.

The municipality moved for summary judgment, arguing the plaintiff failed to provide notice of the claim within 10 days as required by s. 44(10) of the Municipal Act.

The court found the plaintiff had a reasonable excuse for the delay, as the municipality's potential liability was not discoverable until the police file was released months later.

However, the court concluded that whether the municipality was prejudiced by the delay remained a genuine issue requiring a trial.

The motion for summary judgment was dismissed.

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.

The plaintiff purchased a farm property from the defendant vendors.

After closing, she discovered severe latent defects, including a history of basement flooding, a failed septic system, and that the house additions and garage were built without building permits.

The plaintiff sued the vendors for breach of contract and negligent misrepresentation, and her title insurer for breach of contract after it denied coverage.

The court found the vendors liable for actively concealing defects and acting with reckless disregard.

The court also found the title insurer liable, holding that the lack of permits and unsafe building orders were covered risks under the policy.

The plaintiff was awarded damages for the full replacement cost of the structures, special damages, general damages for mental distress, and punitive damages against the vendors.

The title insurer was held jointly and severally liable for the replacement costs and special damages, but was granted full indemnity from the vendors.

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.

The plaintiff brought a motion for leave to appeal an interlocutory order to the Divisional Court under Rule 62.02(4)(a) of the Rules of Civil Procedure, arguing that another Superior Court decision created a conflicting authority warranting appellate review.

The court reviewed the alleged conflicting endorsement and the earlier motion decision and found no inconsistency in the legal principles applied.

The earlier endorsement addressed specific refusals on discovery and did not determine the threshold legal issue considered in the impugned decision.

The court held that the requirement of a “conflicting decision” was not met and therefore it was unnecessary to consider whether leave was desirable.

The motion for leave to appeal was dismissed, with commentary emphasizing counsel’s duty to disclose relevant authorities to the court.

On a written Rule 2.1 review, the court dismissed an action arising from power of sale proceedings, the subsequent sale of a property, and allegations that multiple defendants colluded to deprive the plaintiff of property and belongings.

The court held the plaintiff lacked standing because the property had been owned by a dissolved corporation, found no pleaded cause of action against the various defendants, and accepted that the claims were also abuse of process and statute-barred on their face.

The court further relied on overlap with an earlier Brampton action concerning the same underlying property dispute.

The entire action was dismissed as frivolous, vexatious, and an abuse of process.

The moving defendants sought to set aside a noting in default, set aside a default judgment, stay a notice of garnishment, and obtain release of garnished funds in a construction deficiency action involving allegedly improper installation of paving stones.

Applying the Rule 19.03 and Rule 19.08 frameworks, the court found the motion was brought promptly, the defendants had a plausible explanation rooted in their reasonable reliance on an insurer and an erroneous dismissal order, and they had an arguable defence on standing, warranty, and damages.

The prejudice to the defendants from enforcing a judgment exceeding $120,000 outweighed any compensable prejudice to the plaintiff.

The court also held there was no basis to maintain a pre-judgment asset freeze through garnishment in the absence of exceptional circumstances.