Civil Litigation - Defendant - SCJ

The plaintiffs, owners of a water-access-only island property, sought a declaration that they held an easement over the defendant's mainland property for parking and boat launching.

The defendant, who operated a lodge on the mainland property, resisted the claim.

The Superior Court of Justice found that a valid express easement was created by a 1952 deed.

In the alternative, the court found that an implied easement of necessity and a prescriptive easement under the doctrine of lost modern grant had also been established.

The court held that the Registry Act did not extinguish the easement, as it arose by operation of law and the defendant's predecessors were not good-faith purchasers without notice.

The court granted the plaintiffs ancillary rights to park and launch boats, but declined to grant dock access.

The defendant brought a motion to compel a representative of a non-party to answer a refused question during an examination under Rule 39.03.

The examination was in relation to the plaintiff's pending motion for an extension of time to file a statement of claim.

The refused question asked whether the non-party would indemnify the defendant if the plaintiff's motion succeeded.

The court dismissed the motion, finding the question was hypothetical, sought a legal conclusion beyond the witness's expertise, and was irrelevant to the pending motion.

The plaintiff moved for a further and better affidavit of documents from the defendant, his mother and the estate trustee of his late father's estate.

The underlying litigation involves a dispute over the beneficial ownership of a property.

The plaintiff sought production of the deceased's bank and tax records from 1997 onwards, as well as files from the deceased's financial planners, estate planning lawyer, and real estate lawyer.

The court ordered the production of the financial planners' file, finding it relevant, existent, and within the defendant's control.

The remaining requests were dismissed because the plaintiff failed to establish that the documents existed, were proportional to produce, or were within the defendant's power, possession, and control.

The applicant's motion to remove the respondents' counsel of record was previously dismissed.

The parties could not agree on costs, and the respondents sought costs on a substantial indemnity basis, citing the lack of merit of the motion and abusive correspondence from the applicant's representative.

The court reviewed the factors under Rule 57.01 of the Rules of Civil Procedure and awarded the respondents costs fixed at $6,000.00, finding this amount to be fair, reasonable, and proportionate in the circumstances.

The plaintiffs brought a motion to amend their Statement of Claim to add the defendants' counsel and the individual defendant's parents as parties, alleging they received trust funds from the sale of a property.

The court dismissed the motion, finding that adding the defendants' counsel would cause non-compensable prejudice by depriving the defendants of their counsel of choice in complex, intertwined litigation.

The plaintiffs also sought costs for a withdrawn production motion regarding bank records.

The court awarded the plaintiffs $4,000 in partial indemnity costs thrown away, as the defendants had failed to produce the records in the required format until after the motion was brought.

The plaintiff brought an uncontested summary trial for damages following a default judgment on liability for assault, battery, and intentional infliction of mental suffering against her former intimate partner.

The defendant had pulled the plaintiff backward by her knapsack, causing a severe ankle fracture that required multiple surgeries, and attempted to strangle her.

The court admitted the plaintiff's medical records as business records but noted the lack of expert medical evidence.

The court awarded $60,000 in general damages and $30,000 in aggravated damages, but declined to award punitive damages due to concurrent criminal proceedings and dismissed the pecuniary damages claim for lack of evidence.

The self-represented plaintiff brought a motion under Rule 59.06 to vary, set aside, or suspend a previous costs order.

The plaintiff argued that the court failed to adjudicate material costs considerations and that fresh evidence warranted a redetermination.

The court dismissed the motion, finding no accidental slip or omission under Rule 59.06(1), and holding that the fresh evidence would not have changed the result and could have been obtained earlier under Rule 59.06(2)(a).

The court also declined to suspend the order, noting the plaintiff's unreasonable conduct and the prejudice to the defendants.

The defendant moved for production of the plaintiff's accounting records pursuant to a 'best efforts' undertaking given at discovery.

The plaintiff, who claims over $2 million in lost profits from his gas station and variety store, argued he was not required to create formal accounting books.

The court held that 'books' in this context included the plaintiff's revenue and expense records, which were relevant and within his control.

The court ordered production of the records but allowed temporary redaction of supplier names pending a potential motion by the plaintiff for a protective order regarding commercially sensitive information.

Following a decision dividing the equity in a property between the applicant son and respondent mother, the court determined the issue of costs.

The applicant sought $15,000 based on the respondent's repeated failures to comply with deadlines, which necessitated eleven court appearances.

The respondent argued for no costs given the divided result on the merits and her deteriorating health.

The court awarded the applicant $10,000 in costs, finding that the respondent's conduct unnecessarily lengthened the proceeding.

The defendant insurer brought a motion under s. 128 of the Insurance Act to compel the plaintiff insureds to participate in the statutory appraisal process following a fire loss.

The plaintiffs opposed the motion, arguing the matter should proceed to summary judgment due to a fundamental disagreement over the valuation date and allegations of bad faith.

The court dismissed the motion, finding that the appraisal process is limited to valuation and cannot resolve broader legal disputes such as policy interpretation regarding the correct valuation date.

The plaintiffs were ordered to submit a sworn proof of loss.

Aviva Insurance Company of Canada brought a motion to strike the plaintiff towing company's claim against it for vehicle storage fees.

Aviva had denied coverage to its insured, the co-defendant, due to her failure to cooperate and potential breach of statutory conditions regarding an unauthorized driver.

The towing company argued Aviva's negotiations regarding storage fees created an estoppel.

The court found no privity of contract between the towing company and the insurer, and held that the insurer's efforts to minimize damages did not constitute waiver or estoppel.

The claim against Aviva was struck and the action dismissed with costs.

The moving party solicitor brought a motion to oppose the confirmation of an Assessment Officer's report that reduced his legal accounts by 45% and ordered a refund to the client.

The solicitor argued that missing transcript excerpts from his examination in chief necessitated a rehearing and that the reduction was arbitrary.

The Superior Court of Justice dismissed the motion, finding no evidence of real and serious risk of prejudice from the missing transcripts and no palpable and overriding error in the Assessment Officer's application of the Cohen factors to determine the reasonableness of the accounts.

The plaintiff insurance brokerage sought an interlocutory injunction to prohibit a former employee from accepting business from its clients.

The defendant admitted to forwarding confidential client information to her personal email before resigning to join a competitor.

While the court found a serious issue to be tried regarding the breach of employment obligations, it concluded the plaintiff failed to establish irreparable harm, as existing court orders already restrained the misuse of confidential information and any potential loss of revenue could be quantified in damages.

The balance of convenience also favoured the defendant.

The motion for further injunctive relief was dismissed.

The court heard competing motions by a court-appointed receiver and a third-party purchaser (BJC) regarding the sale of a commercial property.

The property was subject to a mortgage that fell into default, prompting the mortgagee to exercise its statutory power of sale and enter into an agreement with BJC.

Subsequently, a receiver was appointed over the mortgagor corporation in an oppression action and sought to sell the same property en bloc with another property to a different purchaser.

The court held that the receivership order under the Business Corporations Act and Courts of Justice Act did not suspend or supersede the mortgagee's pre-existing statutory power of sale under the Mortgages Act.

The receiver's motion to approve its sale was dismissed, and the mortgagee was permitted to complete its sale to BJC.

The plaintiff sued the defendant for breach of privacy, alleging the defendant accessed his personal information and created fake online profiles.

The defendant denied the allegations and brought a counterclaim for sexual battery, alleging the plaintiff penetrated him without a condom and without his consent.

The court dismissed the plaintiff's claim, finding insufficient evidence that the defendant accessed the information or created the profiles.

The court granted the defendant's counterclaim, finding the plaintiff committed sexual battery by penetrating the defendant without a condom, and awarded $35,000 in damages.

The plaintiff brought a motion for leave to register a Certificate of Pending Litigation (CPL) against a condominium property.

The plaintiff had assigned her agreement of purchase and sale to the first defendant, who later transferred his interest to his parents (the co-defendants) without paying the plaintiff the balance owed under the assignment agreement.

The court found no triable issue for a resulting or constructive trust.

Applying the Grefford test for a CPL in a fraudulent conveyance action, the court found a high probability of success and a triable issue regarding intent to defeat creditors, but ultimately dismissed the motion because the balance of convenience weighed against granting the CPL.

The defendants brought a motion to set aside a default judgment.

The court dismissed the motion regarding the corporate defendant, finding no plausible excuse for the default and no arguable defence to the unpaid invoices.

However, the court granted the motion regarding the individual defendant, finding an arguable defence as to whether he provided an enforceable personal guarantee under the Statute of Frauds.

The defendant brought a motion to rectify the land registry record under section 159 of the Land Titles Act.

The parties are abutting landowners, and the defendant's property requires an easement over the plaintiff's land for access.

The Committee of Adjustment had previously granted a permanent easement as a condition of severing the land, but a temporary one-year easement was mistakenly registered on title following a private agreement between the parties.

The court held that the Certificate of Consent under the Planning Act does not immunize the resulting transfer from rectification where the registered instrument does not match the approved instrument.

The motion was granted, and the title was ordered rectified to reflect a permanent easement.

Scott Steel Erectors Inc. (SSE) brought a motion for the payout of statutory holdbacks retained by Ausenco Engineering Canada Inc. and for a stay of the proceedings in favour of arbitration.

The parties were involved in a construction project at the Magino Mine.

Ausenco argued that its holdback obligations ended when it posted alternate security to vacate the liens and that it had set-off claims against SSE.

The court found that the holdback was a statutory obligation that was not eliminated by posting a bond, and that set-off claims could not be deducted from the holdback.

The court ordered Ausenco to pay the principal holdback amount of $1,629,242.92 to SSE and $78,826.45 into court for another subcontractor.

The court also granted the stay, finding that the subcontracts contained mandatory arbitration clauses and that SSE had not waived its right to arbitrate by taking defensive steps to preserve its lien rights.

The plaintiff's lawyer of record passed away, and his firm brought a motion to be removed from the record and for a charging order.

The motion was adjourned because adverse parties raised concerns about the plaintiff's capacity.

The court reviewed the legal framework for appointing a litigation guardian and ordering a capacity assessment under the Rules of Civil Procedure and the Courts of Justice Act.

The court directed the parties to consult and establish a framework to address the plaintiff's capacity before proceeding with the motion.