Civil Litigation - Defendant - SCJ

The defendant, Fancamp Exploration Ltd., brought a motion for leave to amend its statement of defence in a contract dispute with Fouad Kamaleddine and FFK Consulting Services Inc. The motion was opposed by the plaintiffs due to its lateness, being brought two weeks before the pretrial and eleven weeks before trial.

The court reviewed the proposed amendments and found that, except for a new unconscionability defence introduced at the last minute, the amendments would not cause non-compensable prejudice to the plaintiffs.

The court granted leave to amend except for the last sentence of new paragraph 39, which introduced the unconscionability defence.

No costs were awarded due to the defendant's delay and partial success.

The Plaintiff sought an order for Land Genesis Development Corp. to pay $394,212 in partial satisfaction of a prior fraud judgment against the Defendants, including Genesis (LA) Corp. The Defendants, Eduardo and Patricia Garcia, opposed, asserting the funds were beneficially owned by non-resident investors.

Land Genesis did not oppose but required a court order.

The court found the record insufficient and conflicting regarding beneficial ownership claims and the proper filing of evidence.

Consequently, the motion was adjourned to allow all parties to properly file materials and for Land Genesis to respond to new evidence, emphasizing the need for a complete and properly presented record for a determination.

The Bayer and Johnson & Johnson Defendants brought motions under Rule 59.06 of the Ontario Rules of Civil Procedure to amend or vary a previous order dated October 4, 2023, which had declined to dismiss the plaintiff's extensive claims under Rule 2.1.

The defendants argued that the prior decision contained errors or oversights, specifically regarding the omission of a Federal Court Statement of Claim and the court's comments on limitation periods.

The court dismissed both motions, reiterating that Rule 59.06 is intended for clerical or accidental errors in memorializing a decision, not for re-evaluating the reasoning itself.

The court clarified that its previous comments on limitation periods were not a final determination and did not preclude the defendants from raising such a defence at a later stage.

Echelon General Insurance Company brought two motions: one to strike paragraphs from the plaintiffs' solicitor's affidavit for lack of personal knowledge/source, and another to stay the action due to the plaintiffs' alleged failure to disclose a Pierringer agreement from a separate construction action.

The court dismissed the motion to strike, finding the affidavit information uncontested background facts.

The court also dismissed the motion to stay, ruling that the "Aecon principles" of disclosure of settlement agreements do not extend to settlements in entirely separate proceedings where the non-settling party (Echelon) was not a party and had opportunities to protect its interests (e.g., by joining third parties or pursuing subrogated claims) but failed to do so.

Costs were awarded to the plaintiffs.

This mid-trial ruling addresses the qualification of an expert witness, D.J. Myles Martin, proposed by the applicant (Rae Marie Ierullo) in a combined family and civil trial concerning business valuations.

The respondent (Vito Ierullo) challenged the expert's qualifications.

The court applied the Mohan and White Burgess tests for expert admissibility, considering factors such as formal education, professional qualifications, experience, and independence.

The court declined to qualify the expert, citing his lack of formal CBV accreditation, limited litigation support experience, and an undisclosed social relationship with the applicant, which raised concerns about his objectivity and non-partisanship.

Following the dismissal of the plaintiff's breach of contract claim after a liability trial, the defendant, Revera Inc., sought partial indemnity costs.

The plaintiff acknowledged entitlement to costs but disputed the amount.

The court, applying Rule 57.01 of the Rules of Civil Procedure, assessed the reasonableness of the claimed costs, noting that a costs award is not a simple mathematical calculation.

The judge found the time docketed by the defendant's counsel and the extent of senior counsel involvement to be excessive for the simplicity of the factual dispute, despite the significant amount in issue ($1.4 million).

The court awarded partial indemnity costs significantly lower than requested, emphasizing that the unsuccessful party should not bear the cost of "overpreparation" or unnecessary senior counsel involvement.

The plaintiff and defendant, siblings, were involved in a dispute over the ownership and management of a family partnership.

The defendant moved for summary judgment, arguing the plaintiff's claim was for breach of contract and statute-barred.

The plaintiff brought a cross-motion seeking the appointment of a receiver and manager, further production, and an accounting.

The court dismissed the defendant's summary judgment motion, finding the plaintiff's claim was grounded in breach of fiduciary duty, to which no limitation period applied under the transition provisions of the Limitations Act, 2002.

The court also dismissed the plaintiff's motion, finding no clear evidence of irreparable harm to justify the extraordinary remedy of appointing a receiver, and concluding the requests for production and an accounting lacked a proper jurisdictional basis.

The applicants brought an application to declare the respondent a vexatious litigant under section 140 of the Courts of Justice Act.

The court found that the respondent had persistently and without reasonable grounds instituted numerous unmeritorious actions, motions, and appeals over a decade, while failing to pay over $150,000 in costs orders.

The court granted the application, prohibiting the respondent from instituting or continuing any proceedings in Ontario without leave of a judge, and awarded substantial indemnity costs to the applicants.

The defendant lawyer brought a motion to strike the self-represented plaintiff's statement of claim, arguing it disclosed no reasonable cause of action and was frivolous.

The plaintiff alleged the defendant delayed scheduling her bail hearing because he was working as a part-time Crown Attorney.

The court found that while much of the claim was improperly drafted and irrelevant, it contained a viable cause of action in negligence or breach of contract regarding the bail hearing delay.

The court struck the offending portions of the claim but allowed the core action to proceed, awarding the defendant $1,000 in costs for partial success.

The defendants brought motions for security for costs against the plaintiff, who resides in Germany.

The plaintiff opposed the motions, arguing impecuniosity and delay by the defendants.

The court found the plaintiff failed to establish impecuniosity, as he earns over $100,000 per year and provided no evidence of an inability to borrow funds.

The court also found the plaintiff's slip and fall claim did not have a good chance of success.

Although the defendants delayed significantly in bringing the motions, the court held this did not preclude an order for security, but limited the security to trial costs only.

The plaintiff was ordered to post $100,000 in security.

The plaintiff mortgagors failed to maintain property insurance as required by their mortgage.

The defendant mortgagees obtained their own insurance policy to protect their interest, with the plaintiffs reimbursing the premiums.

After a fire destroyed the property, the insurer paid the mortgagees the policy limits and claimed a subrogated right to enforce the mortgage against the plaintiffs.

The plaintiffs brought a motion for summary judgment seeking a declaration that the insurer had no subrogated rights and an order discharging the mortgage to the extent of the insurance payout.

The court dismissed the motion, finding that the insurance policy was obtained solely for the benefit of the mortgagees and explicitly provided for subrogation rights against the mortgagors.

The applicant law firm sought costs of $2,500 for a solicitor's lien application regarding a direction to pay from the proceeds of a real estate sale.

The matter was resolved in the applicant's favour on the morning of the hearing.

The respondent argued the application was unnecessary as the new solicitor had agreed to hold funds in trust.

The court awarded costs of $750 plus HST to the applicant, noting the application was successful but may not have been necessary.

A case conference was held to resolve several procedural issues in an estates action.

The court set a schedule for an upcoming costs hearing and ordered the defendants to answer discovery questions they had improperly taken under advisement, noting that counsel's lack of instructions does not excuse failing to answer proper questions.

The court also set a timetable for the plaintiff's proposed motion to strike a new action commenced by the defendants, deferring issues regarding the deemed undertaking rule and a potential judicial bias motion.

The plaintiff moved for default judgment against the defendants for breach of a factoring agreement.

The defendants had previously delivered a Notice of Intent to Defend, but the plaintiff noted them in default without further notice or requesting a Statement of Defence.

The court found it unreasonable to note a self-represented party in default without notice after they had indicated an intent to participate.

The motion for default judgment was dismissed, the noting in default was set aside, and a timetable was established for the defendants to file a defence.

In four proposed class actions concerning investments in syndicated mortgages for land development projects, the defendants brought motions to strike the plaintiffs' statements of claim.

The court struck out the claims against the individual directors and officers of the corporate defendants without leave to amend, finding that the pleadings failed to allege any independent tortious conduct or separate identity of interest from the corporations.

The statements of claim against the remaining defendants were struck out in their entirety with leave to deliver fresh as amended statements of claim.

The defendant, Olympia Trust Company, brought motions to strike the plaintiffs' statements of claim in four proposed class actions concerning syndicated mortgage investments.

The court found that the statements of claim were ill-organized, prolix, unclear, and contravened the rules of pleading by including evidence, immaterial allegations, and argumentative statements.

The court struck out the statements of claim in their entirety against all defendants but granted the plaintiffs leave to deliver fresh as amended statements of claim.

The defendants brought a motion for security for costs.

The plaintiffs conceded entitlement but disputed the quantum and requested payment in instalments.

The court noted the plaintiffs' history of non-payment of prior costs awards and concerns about the merits of their case due to related proceedings.

The court ordered security for costs in the amount of $93,419.70, deducting anticipated trial and mediation costs, payable in three instalments.

The plaintiff in a wrongful dismissal action sought leave under Rule 48.04 to bring a motion to serve an expert report regarding the definition of 'information technology professional' after the action had been set down for trial.

The defendant had pleaded that the plaintiff was exempt from overtime pay under the Employment Standards Act, 2000 because he was an information technology professional.

The court dismissed the motion, finding that the plaintiff had known of this defence throughout the litigation and provided no plausible explanation for the delay in seeking an expert report beyond counsel's inattention.

This endorsement addresses a dispute over costs following an inability of the parties to settle.

The self-represented respondents sought various expenses, including bank fees, legal expenses from a lawyer not on record, printing/office supplies, and travel costs.

The applicant disputed several of these claims.

The court allowed a reduced amount for legal expenses and office supplies on a partial indemnity basis, finding the respondents' claims lacked particulars.

Bank fees were rejected as damages, not costs, and travel expenses were disallowed because the applicant was statutorily required to commence proceedings in the Region of Waterloo, and such expenses are not typically included in Tariff A, Part II – Disbursements.

The court fixed costs payable by the applicant to the respondents at $762.75.

Multiple plaintiffs who were high-limit roulette players alleged that a casino operated illegal roulette games by allowing dealers to remove “floating balls” before they landed in a numbered slot, contrary to approved rules of play under Ontario gaming regulations.

They sought $7.5 million in damages and restitution of approximately $2.1 million lost gambling, asserting tort, contract, statutory misrepresentation, and unjust enrichment claims.

The defendants moved for summary judgment dismissing the actions and enforcing unpaid gambling loans.

The court held that even if the “floating ball” practice was not an approved rule of play and could have rendered certain spins unlawful, the unjust enrichment claim failed because the casino returned all wagers whenever a spin was stopped, meaning there was no enrichment and no corresponding deprivation.

With no viable damages evidence and no triable issues, summary judgment was granted and the defendants also succeeded on their collection counterclaims.