Sam Gebrael

This decision addresses a motion for partial indemnity costs arising from a successful pleadings motion brought by the defendants.

The plaintiffs, whose statement of claim was found deficient, sought costs themselves or costs in the cause, arguing mixed success.

The court determined that the defendants were substantially successful, as several claims were struck, some without leave to amend.

The court rejected the plaintiffs' arguments, emphasizing that a deficient pleading necessitated the defendants' motion.

Costs were fixed in favour of the defendants, payable by the plaintiffs.

This is a pleadings motion brought by the defendants to strike various causes of action and allegations from the plaintiffs' statement of claim, including claims for piercing the corporate veil, fraud, breach of court orders, negligent misrepresentation, conversion, unjust enrichment, oppression, and conspiracy.

The court considered the legal sufficiency of the pleadings under Rule 21.01(1)(b) and Rule 25.11, and the possibility of granting leave to amend.

The court struck claims for breach of court orders, negligent misrepresentation, and conspiracy without leave to amend, finding they disclosed no reasonable cause of action or were frivolous/vexatious.

Claims for fraud, conversion, unjust enrichment, and oppression were struck with leave to amend, as the plaintiffs might be able to plead sufficient material facts.

The claim to pierce the corporate veil against individual defendants for fraudulent conduct was found sufficiently pleaded, but a declaration to treat corporate plaintiffs as one defendant was struck.

Allegations of false affidavits were struck due to absolute privilege, but allegations of pressuring employees to provide false statements were not.

The plaintiffs, purchasers of a dental clinic, sought an interlocutory injunction to enforce non-competition and non-licensing obligations against the defendants, the former clinic owner and his corporations.

The plaintiffs alleged breaches of a 15-kilometre non-competition clause and a five-year restriction on using the "Smile Stylist" brand name within the Greater Toronto Area (GTA), stemming from the defendants opening a new clinic within the restricted zone and misusing the former clinic's website for marketing.

The court applied the RJR-MacDonald test, finding a strong prima facie case for breach of the non-competition and branding covenants, irreparable harm to the plaintiffs, and that the balance of convenience favored granting these injunctions.

However, the court denied the request for control over the "thesmilestylist.ca" domain and related accounts, as the licensing term had expired and the plaintiffs had rebranded, negating irreparable harm for that specific relief.

The plaintiffs, Empire Steel Inc. and Steelserve Corp., brought a motion to extend a preservation order and, in the alternative, for an injunction to prevent the defendants, Dass Metal Products & Dass Steel Service Centre et al., from disposing of 102 steel coils.

The plaintiffs alleged fraud and egregious deception by the defendants, who had unilaterally claimed the coils were damaged, refused payment, and allegedly sold them for scrap, while obstructing previous inspection orders.

The court found a strong prima facie case of fraud and a real risk of continued fraudulent conduct, granting the injunction to preserve the coils and ordering their transport to the plaintiffs' facility, with costs awarded to the plaintiffs.

The Plaintiff, AZZ Galvanizing Canada Limited, brought a motion to compel discovery responses from the Defendants, Empire Steel Inc. and 1340614 Ontario Inc. (IBT).

The motion primarily concerned the disclosure of hydro cost allocation and subtenant information (Issue 14) by Empire.

While the initial motion was broad, issues were narrowed by agreement, and IBT's portion was adjourned due to counsel's unavailability.

The court found in favour of the Plaintiff on Issue 14, compelling Empire to provide the requested information.

This endorsement addresses the costs of that motion.

The court awarded partial indemnity costs of $16,094.69 to the Plaintiff, finding them largely successful.

The court rejected Empire's arguments for costs against the Plaintiff, citing improper submissions and the lack of novelty in the legal issues.

The costs were deemed fair, reasonable, and proportionate given the complexity and importance of the issues.

The tenant sought to terminate a lease due to inadequate heating and lighting, and challenged the landlord's distraint of its equipment.

The court found that the landlord's offer to terminate the lease was not a bona fide offer and was not properly accepted in writing.

It also determined that the landlord's failure to provide adequate heating and lighting did not constitute a fundamental breach of the lease, as the premises were not rendered uninhabitable and the tenant could have remedied the heating issue.

However, the court ruled that the landlord was obligated to provide sufficient heating prior to occupancy and that the "as is" clause did not apply to heating.

Consequently, rent was not due, rendering the landlord's distraint of the tenant's equipment unlawful.

The lease remained in full force and effect, with the commencement date postponed until adequate heating was provided.

Damages for unlawful distraint were to be determined at a later trial.

The defendant brought a motion for an order requiring the plaintiff to produce certain documents for inspection and to provide particulars of its statement of claim regarding an equipment lease for a helicopter.

The Master partially granted the motion, ordering the plaintiff to produce written demands for payment if they exist, and to provide particulars of the date and price of the helicopter's sale to allow the defendant to plead a defence of set-off.

The balance of the requests were dismissed as they sought non-specific documents or evidence rather than material facts necessary for pleading.