SCJ 2018

The applicant sought an order under Rule 57.07(1) for his former lawyer, the respondent law firm, to personally pay costs previously awarded against the applicant in an unsuccessful action.

The court dismissed this motion, finding that the respondent's conduct did not meet the high threshold for such an order.

Subsequently, the court considered the issue of costs for the application itself.

The respondent, a self-represented lawyer, sought costs for their time and effort.

The court reiterated that self-represented parties must demonstrate an "opportunity cost" by foregoing remunerative activity to be awarded costs for their time.

As the respondent failed to adduce evidence of such a loss, they were not awarded costs for their time, only disbursements.

The plaintiff brought a motion seeking an order for the defendant to produce and preserve certain documents.

The motion addressed six classes of documents, with one class resolved by consent.

The court ordered the production of delinquency reports, mortgage payment and interest histories for alleged fraud files, and the plaintiff's final Horizon Report showing termination status.

Requests for specific BNS policies and additional communications were dismissed without prejudice, allowing for further motions after examinations for discovery.

The interim preservation order for the ordered documents was continued, but a broader preservation request was denied due to lack of specificity.

The appellant, suffering from schizoaffective disorder, appealed a Consent and Capacity Board decision confirming his incapacity to consent to antipsychotic medication.

During the Board hearing, the appellant discharged his counsel and represented himself despite experiencing significant delusions.

The Superior Court of Justice allowed the appeal, finding that while the appellant had a constitutional right to represent himself, the Board denied him procedural fairness by failing to appoint his discharged counsel as amicus curiae to assist the Board in ensuring a fair hearing.

The Plaintiff, Algoma District School Board (ADSB), brought a motion for partial summary judgment against the Defendant, Algoma Insurance Brokers Ltd. (AIB), alleging negligence and breach of contract in insurance brokerage services from 1965-1986.

AIB brought a cross-motion for dismissal of ADSB's claim for delay.

The court dismissed ADSB's motion for partial summary judgment, finding it inappropriate given the complexity and lack of efficiency.

The court granted AIB's motion to dismiss for delay, concluding that the 13.5-year delay was inordinate and inexcusable, and ADSB failed to rebut the strong presumption of prejudice to AIB, particularly concerning the fading memories of elderly witnesses and the death of key individuals.

The biological mother brought a motion to appoint the Office of the Children's Lawyer to represent her two biological children in her underlying application to set aside an adoption order.

The underlying application was based on the reliance on flawed Motherisk drug testing reports in the original Crown wardship proceedings.

The Children's Aid Society and the adoptive parents opposed the motion as premature.

The court granted the motion, finding that the children's rights to participate and be heard were paramount, and appointed the Children's Lawyer pursuant to section 89(3.1) of the Courts of Justice Act.

The applicant sought a one-half interest in the respondent's pension from the start of their cohabitation in 1991, arguing unjust enrichment and a joint family venture.

The respondent contended the applicant was only entitled to a share accumulated during their marriage (2012-2014).

The court found no unjust enrichment or joint family venture prior to marriage, noting separate finances, the respondent's self-funded education, and the applicant's limited contributions to household and childcare responsibilities after becoming unemployed.

The applicant's claim for a pre-marital pension share was dismissed, but he was awarded a lump sum representing half the pension value accumulated during the marriage.

The plaintiff, Catherine Patrick, was injured in a single-car accident in February 2014.

She initially sued Southwest Middlesex, but later sought to add The Corporation of the County of Middlesex ("Middlesex County") as a defendant.

Middlesex County moved for summary judgment, arguing the plaintiff failed to provide timely statutory notice under s. 44(10) of the Municipal Act, 2001, and that her claim was statute-barred under the Limitations Act, 2002.

The court found that Patrick did not establish a "reasonable excuse" for the more than two-year delay in notifying Middlesex County, particularly for the initial 16-month period of inaction before retaining counsel.

As satisfying the "reasonable excuse" prong of s. 44(12) is mandatory, the court granted summary judgment, dismissing the action against Middlesex County.

The individual defendants, officers and directors of BMW Canada Inc., brought a motion to strike the Amended Statement of Claim against them, arguing it failed to disclose a reasonable cause of action.

The plaintiffs alleged various torts including negligence, breach of fiduciary duty, and intentional interference with economic relations.

The court granted the motion, finding that the pleading failed to establish a basis for personal liability against the individual defendants, as their alleged actions were within their corporate capacity, and the elements for the pleaded torts were not properly established.

Leave to amend was granted, and costs were awarded to the individual defendants.

The plaintiff sought certification of a class action against Ford Motor Company and related entities, alleging false, misleading, or deceptive representations regarding the fuel consumption of 2013 and 2014 model year vehicles.

The claim, for $1.5 billion, was based on violations of the Competition Act and the Consumer Protection Act, asserting that Ford understated fuel consumption by using an outdated 2-Cycle Test instead of the more accurate 5-Cycle Test.

The court certified the action, finding that the pleadings disclosed viable causes of action, there was an identifiable class, common issues existed, a class proceeding was the preferable procedure, and the representative plaintiff was suitable.

Deloitte, a forensic expert, brought a motion for costs against Daniel Sherk for an outstanding account, following a prior ruling that established Sherk's responsibility for the balance.

Sherk had agreed to judgment for the amount owed but disputed the basis and quantum of costs.

The court found Sherk's opposition was not "reprehensible, scandalous, or outrageous" to warrant substantial indemnity costs or sanctions.

The court awarded Deloitte costs on a partial indemnity basis, reducing the requested amount from $27,546.00 to $17,500.00, considering proportionality and Deloitte's failure to respond to Sherk's offer.

The Crown sought an order of certiorari to quash a justice of the peace's purported cancellation of an officer-in-charge (OIC) undertaking, which the Crown argued was beyond the justice's jurisdiction under s. 508(1)(b) of the Criminal Code.

The court found that the justice of the peace did not cancel the undertaking but merely refused to confirm it, an act also outside their jurisdiction.

Since the justice of the peace merely refused to perform an unauthorized act, there was no jurisdictional error to quash.

The application for certiorari was dismissed.

The Attorney General of Canada, on behalf of the United States, sought summary dismissal of Gregory Hibbert's application to resist extradition for child pornography charges.

Hibbert argued that evidence was obtained in violation of his Charter rights and sought various remedies, including exclusion of evidence and striking out his prior Canadian guilty plea.

The court dismissed Hibbert's claims related to his Canadian guilty plea and the informal sharing of evidence, finding them outside the extradition judge's jurisdiction or without legal basis.

However, the court found an "air of reality" to Hibbert's claim that evidence used in the extradition request was obtained in Canada in violation of his Charter rights, and allowed that specific aspect of his application to proceed to a full hearing.

The applicants sought the removal of the two respondents as executors of their deceased father's will and directions for estate administration due to a prolonged inability to cooperate and administer the estate.

The court found clear evidence that the siblings were unable to work together, leading to a frozen state of inaction detrimental to all beneficiaries.

The respondents, particularly George Voloudakis, failed to comply with an interim order regarding the estate property.

The court granted the application, removing both respondents as executors and issuing comprehensive directions for the estate's administration, including the sale of the primary asset (the family home) and the handling of financial documents and tenant rents.

Costs were awarded against the respondents, payable from their shares of the estate.

The applicants, owners of the Glen Abbey Golf Course, brought an application to quash five municipal by-laws enacted by the respondent Town.

The by-laws aimed to preserve the property's use as a golf course following its designation as a cultural heritage property.

The Superior Court of Justice allowed the application and quashed the by-laws, finding them ultra vires the Town's authority under the Municipal Act, as they improperly required the provision of services related to recreation and culture.

The court also found the by-laws were enacted in bad faith to thwart the applicants' redevelopment plans and were void for vagueness.

In an insolvency proceeding involving syndicated mortgage investments, the court-appointed trustee brought a motion to dismiss a claim by an individual and his company for fees and a priority charge against the respondents' assets.

The claimant alleged he had an oral agreement to provide services to the Investors' Committee and sought approximately $103,000.

The court found no binding contract existed as the parties had not agreed on all material terms and the claimant had insisted on a signed agreement.

The court also rejected a quantum meruit claim, finding the claimant's services were provided gratuitously while pitching for a retainer.

Finally, the court held there was no basis under statute or inherent jurisdiction to grant a retroactive priority charge for the claimant's fees.

The claim was dismissed.

This endorsement addresses costs for two motions heard on September 4, 2018.

The plaintiff's motion to strike portions of the defendants' statement of defence and counterclaim was largely successful, as the impugned allegations were found to be scandalous, embarrassing, and untenable in law.

The defendants Perry and Premier's motion for contempt of court against the plaintiff was dismissed due to a slim prospect of success and marginal utility.

The court awarded substantial indemnity costs to the plaintiff against defendants Clifford Perry and 2543727 Ontario Ltd. o/a Premier Stairs and Railings for both motions, citing the reprehensible and scandalous nature of the struck pleadings and the redundancy of the contempt motion.

No costs were awarded against Kevin Gurnsey.

The plaintiff sought an interlocutory injunction to prevent the defendants from using the name "Kishki Halal Supermarket" for a new grocery store, alleging passing off.

The court applied the three-stage test for interlocutory injunctions from *RJR-MacDonald* and the components of a passing off action.

The court found that the plaintiff failed to establish a serious issue to be tried, specifically regarding public deception and actual/potential damage caused by deceptive misuse of goodwill.

The court also found no irreparable harm and that the balance of convenience favored the defendants.

The motion was dismissed, and costs were awarded to the defendants.

The applicant sought a declaration of ownership by adverse possession of a strip of land owned by the respondent municipality.

The court applied the three-part test for adverse possession, particularly focusing on the "inconsistent use" test for municipal land held for public benefit.

While the applicant's predecessors had actual possession and intended to exclude the public, the court found that planting trees did not effectively exclude the City, as the land remained connected to a public trail and the use was not inconsistent with the City's intention to hold the land for future public use.

The application was dismissed.

A commercial real estate deal involving three properties failed to close.

The plaintiff, NJS Capital Management Inc., brought a summary judgment motion for breach of contract, while the defendants counterclaimed, alleging fraudulent misrepresentation, seeking rectification, or rescission based on unconscionability, arguing the deals were cross-conditional and a package.

The court granted summary judgment in favor of the plaintiff, finding the defendants breached the contracts and dismissing the counterclaims, concluding there was no oral agreement for cross-conditionality or misrepresentation, and the contracts were not unconscionable.

The plaintiff, a real estate brokerage, moved for summary judgment to recover unpaid commissions from the defendants under a Buyer Representation Agreement (BRA).

The defendants argued an oral collateral understanding that commissions would be paid by the seller and that the agent failed to assist.

The court found the written BRA valid and enforceable, rejecting the alleged oral understanding due to the entire agreement clause and the parole evidence rule.

The court also found that the defendants deliberately excluded the agent from final negotiations and failed to disclose property purchases through closely-held corporations to avoid commission payments.

Summary judgment was granted in favour of the plaintiff for commissions owed on two properties, plus interest.