Sandra L. Secord

On a Commercial List motion, the plaintiff liquidator sought to strike from the responding defendants' statement of defence the allegation that the action had been commenced for an improper purpose.

The court held the motion was not barred by delay and that leave was not required under the Rules of Civil Procedure in the circumstances of Commercial List trial scheduling.

Applying the plain and obvious test for striking a defence, the court held that improper motive is not a defence, while an improper purpose defence can survive only if the improper purpose was the sole purpose of commencing the action.

The impugned plea was permitted to stand only on a narrow factual basis, and other evidence directed to improper motive or unrelated allegations was ruled inadmissible for trial.

Multiple defendants brought motions to strike or dismiss claims arising from an alleged advance-fee loan fraud scheme.

The court held that claims against certain lawyer defendants were statute-barred under the Limitations Act, 2002 because the plaintiffs discovered the alleged wrongdoing in 2008 but commenced the action in 2012.

Another defendant successfully moved to dismiss the claim under Rule 57.03(2) for failure to pay outstanding court-ordered costs.

Additional defendants obtained an order striking the claim for fraud and deceit under Rule 21.01(1)(b) because the pleading failed to set out the necessary elements or particulars required by Rule 25.06.

The action against those moving defendants was dismissed.

The appellants appealed the dismissal of their solicitor negligence action against their former counsel.

The motion judge had dismissed the action as time-barred, finding that the statement of claim merely reiterated allegations the appellants had made three years earlier in their defence to the solicitors' action for unpaid fees.

The Court of Appeal agreed with the motion judge's assessment and dismissed the appeal, awarding costs to the respondents.

The defendant lawyers moved for summary judgment dismissing a professional negligence action on the basis that it was commenced outside the two‑year limitation period under the Limitations Act, 2002.

The plaintiffs argued the claim was not discovered until evidence obtained during a later assessment hearing revealed the extent of the alleged negligence.

The court held that the plaintiffs already possessed the material facts necessary to discover their claim when they pleaded negligence in a statement of defence in earlier fee litigation.

The discoverability doctrine did not postpone the limitation period because no fundamentally new facts were discovered later.

Summary judgment was granted and the action was dismissed as statute‑barred.

The plaintiffs brought an action alleging they were victims of an advance fee loan scam perpetrated by the main defendant with the assistance of several lawyers and law firms.

Three groups of defendant lawyers brought motions to strike the statement of claim.

The court struck the negligence claims against one lawyer and his firm, finding opposing counsel owes no duty of care to the opposite party.

The court struck the claims against two other law firms but allowed the fraud claim against their partner to proceed, subject to the plaintiffs providing better particulars.

Finally, the court dismissed the claim against a third lawyer, finding it was statute-barred under the Limitations Act, 2002, as the plaintiffs had sufficient knowledge of the alleged misconduct more than two years before commencing the action.

Following dismissal of a motion for an interlocutory injunction relating to alleged breaches of non‑competition and confidentiality obligations, the court determined costs.

The defendants sought substantial partial indemnity costs exceeding $93,000, while the plaintiff argued the amount was excessive and that costs should be in the cause.

The court reviewed principles governing costs under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, emphasizing reasonableness, proportionality, and the reasonable expectations of the paying party.

While finding the defendants substantially successful, the court held the claimed hours and staffing levels excessive and reduced the award.

Partial indemnity costs were fixed at $40,000 plus HST and disbursements, payable forthwith.

The plaintiff former employer moved for an interlocutory injunction to enforce non-competition and confidentiality clauses against a former employee who invented a specialized technology.

The court applied the heightened 'strong prima facie case' standard for restrictive covenants in employment contracts.

While the court found a strong prima facie case that the employee breached non-competition provisions, it dismissed the injunction because the plaintiff failed to demonstrate irreparable harm, as damages could be quantified.

However, the court granted a preservation order regarding the disputed technology and related electronic records.

The plaintiff sought leave to appeal an order continuing a Mareva injunction on the condition that it post $50,000 as security for costs.

The plaintiff argued that the judge erred by using section 101 of the Courts of Justice Act to order security for costs instead of the specific regime under Rule 56.

The Divisional Court dismissed the motion, finding the judge had jurisdiction to impose the term under section 101 to do justice between the parties, especially given the plaintiff was an insolvent foreign resident whose undertaking as to damages was worthless.

The appellants, a law firm and lawyer, appealed the dismissal of their motion to strike a defamation claim.

The respondent had sued the appellants for defamation based on a letter and draft statement of claim sent to a town planner the day before the claim was officially issued.

The motion judge held that absolute privilege did not apply because the communication contained gratuitously defamatory material intended to induce false testimony.

The Divisional Court allowed the appeal, holding that absolute privilege applies to communications made preparatory to and with a view to judicial proceedings, regardless of malice or falsity.

The court found the communication was made on an occasion of absolute privilege and struck the statement of claim.

The defendants sought leave to appeal a decision dismissing their motion to strike the plaintiff's defamation claim.

The claim arose from a letter and draft Statement of Claim sent by the defendants to a town planner prior to commencing litigation.

The motions judge had found that absolute privilege might not apply if the communication's objective was to induce false testimony.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's decision, as it appeared to confuse the considerations relevant to absolute privilege with those of qualified privilege by factoring in motivation or bad faith.

The successful responding party on a motion for leave to appeal to the Divisional Court sought partial indemnity costs of $12,400.

The court found the requested fees disproportionate for a simple leave application in a family law dispute, noting that the attendance of two senior counsel was unnecessary.

Costs were fixed at $4,000 for fees and $568 for disbursements, plus GST.

The plaintiff invested $145,000 in a non-existent company based on fraudulent representations by the defendant stock promoter.

The plaintiff obtained summary judgment against the promoter, his wife, and his corporation for fraud and unpaid loans.

On appeal, the Court of Appeal upheld the summary judgment for fraud against the promoter and the corporation, finding the promoter's self-serving affidavits and failure to produce supporting documents did not raise a genuine issue for trial.

However, the Court set aside the summary judgment against the promoter's wife due to insufficient evidence of her involvement, and against the promoter for the loans due to conflicting evidence.

The appellant appealed the dismissal of its claim to recover damages from the respondent lawyer for amounts agreed to be paid to lien claimants in a prior consent judgment.

The appellant argued the respondent was estopped by conduct from contesting the validity of the lien claims and sought the return of a $10,000 retainer.

The Court of Appeal dismissed the appeal, finding the appellant failed to establish the necessary representation and reliance for estoppel, and had no valid claim to the holdback from which the retainer was paid.

The appellant appealed an order dismissing his action for failing to pay previously ordered costs and security for costs.

The appellant argued there were procedural deficiencies in how the dismissal order was obtained.

The Court of Appeal found no procedural defects, noting the appellant had been expressly warned that failure to comply by the deadline would result in dismissal without further notice.

The appeal was dismissed with costs.