Civil Litigation - Defendant - SCJ

The plaintiff brought a motion under Rule 25.11 of the Rules of Civil Procedure seeking to strike several paragraphs from a defendant’s statement of defence.

The impugned pleadings alleged that the action was malicious and sought elevated or non‑party costs against the plaintiff’s officers and directors.

The court held that allegations regarding a plaintiff’s motive for commencing litigation do not constitute a defence and that pleadings directed solely to potential costs consequences are improper.

The court struck the impugned paragraphs that related to improper motive and potential non‑party costs, while permitting a paragraph requesting dismissal of the action with full indemnity costs to remain as a general costs request.

Leave to amend was refused because the defects related to improper pleading rather than drafting deficiencies.

Following an earlier ruling on the merits of an appeal, the court addressed the issue of costs.

The responding party argued that costs of the appeal should be deferred to the arbitrator.

The court rejected that submission and held that the moving party had succeeded on the appeal, even though the remedy granted differed from what had been proposed.

Costs were therefore awarded to the successful party.

The successful appellants sought costs following summary judgment motions in land transfer tax appeals.

They requested over $260,000 and argued that costs should also include work performed for additional related appeals and disputes that had been held in abeyance, as well as elevated costs based on a purported Rule 49 settlement offer.

The court declined to award costs for the additional appeals and related disputes because they were not before the court and there was no evidentiary basis to assess the work performed.

The court also held that the settlement proposal was not a valid Rule 49 offer because it addressed matters beyond the proceedings before the court and therefore did not justify elevated costs.

The parties were directed to attempt to agree on the remaining costs or provide further submissions limited to the four appeals heard.

Following the granting of summary judgment for a lender enforcing personal guarantees, the court determined the appropriate costs award.

The moving party sought substantial indemnity costs relying on contractual terms in the guarantee requiring payment of legal costs on a solicitor-and-own-client basis.

The court also found that the responding party attempted to mislead the court by manufacturing evidence regarding the circumstances of the guarantee.

Considering Rule 57.01 of the Rules of Civil Procedure and the principles governing fair and reasonable cost awards, the court granted substantial indemnity costs in the amount sought.

The defendants brought a motion seeking particulars of allegations in an amended statement of claim relating to copyright infringement in computer software.

The court held that the allegations, together with the particulars already provided, were not bald and that the defendants bore the onus of establishing that the requested particulars were not within their knowledge and were necessary to plead a defence.

The only evidence filed was an affidavit from the defendants’ lawyers, which the court found insufficient to satisfy that burden.

The court declined to exercise its discretion under Rule 25.10 of the Rules of Civil Procedure to order particulars.

The motion was dismissed with costs, subject to a temporary stay permitting the defendants to file further affidavit evidence and potentially have the motion return.

Following settlement of a medical negligence action arising from a patient’s stroke while recovering from neurosurgery, the hospital pursued a cross‑claim for contribution under s. 2 of the Negligence Act against a nurse and her staffing agency employer.

The court found that the primary care nurse failed to properly assess neurological deterioration, failed to recognize hemiplegia, inadequately documented patient status, and failed to escalate concerns to obtain timely physician assessment.

The charge nurse also breached the standard of care by failing to properly assess the patient and failing to ensure that physicians were promptly paged and attended.

Applying the “but for” test with a robust and pragmatic approach to causation, the court inferred that earlier diagnosis and treatment of vasospasm would likely have reduced the extent of neurological injury.

Because the respective degrees of fault between the two nurses could not be determined, liability was apportioned equally under the Negligence Act.

The plaintiff brought a motion seeking to strike the defence of two defendants, obtain payment of $13,000 held in trust that had previously been ordered payable to a corporate defendant, and seek personal costs against the defendant’s solicitors.

The corporate defendant had been dissolved prior to earlier court orders but was in receivership, and an affidavit had mistakenly referred to it as being in receivership without mentioning the dissolution.

The court held that under s. 242(1) of the Ontario Business Corporations Act, proceedings against a dissolved corporation may continue and property of the corporation remains available to satisfy orders.

The dissolution did not invalidate earlier court orders or terminate the receivership, and the inadvertent misstatement about receivership did not justify setting aside the prior order.

The trust funds were ordered paid to the receiver and the plaintiff’s motion largely failed except for the uncontested striking of the other defendants’ defence.

The plaintiffs brought a pre-discovery motion in a medical malpractice action seeking further and better affidavits of documents from the defendants, specifically requesting production of documents relating to allegations of prior similar facts involving Dr. Perkin.

The court ordered Dr. Perkin to produce records of complaints not subject to CPS proceedings, and ordered the defendants to produce medical reports and discovery transcripts from three other lawsuits involving similar facts.

Requests for hospital records from the other lawsuits, CPS complaint records, and an order for a discovery plan were dismissed.

Following a jury verdict in a medical negligence action, the court had issued written reasons on costs addressing the plaintiffs’ bill of costs and disbursements.

After the release of those reasons, counsel for the plaintiffs sent correspondence directly to the court seeking a further attendance and advancing additional arguments concerning expert disbursements that had been disallowed for lack of supporting information.

The court held that the correspondence constituted improper ex parte communication and an attempt to re‑argue the costs decision after final reasons had been issued.

The judge emphasized that the burden lies on the party claiming disbursements to demonstrate that they are reasonable and necessary and criticized counsel’s failure to provide sufficient supporting detail in the original materials.

The court refused to consider the contents of the letter and reaffirmed that the earlier costs decision was final.

The defendants brought a motion under Rule 25.10 of the Rules of Civil Procedure seeking further particulars of allegations in a statement of claim arising from an alleged oral agreement for consulting building services.

The moving parties sought additional documentation relating to invoices from consultants and proof of payments made by the plaintiff.

The court reviewed the governing principles on ordering particulars, emphasizing that particulars are required only when the information is not within the requesting party’s knowledge and is necessary to enable a responsive pleading.

The court held that the plaintiff had already provided sufficient particulars through a detailed invoice attached to an affidavit and that the additional documents requested constituted evidence rather than particulars.

The motion was dismissed and the defendants were ordered to deliver their statement of defence.

Bell Canada brought an application to strike two arbitration proceedings commenced by Plan Group Inc. (PGI) and its predecessor partnership.

PGI brought a motion to stay the application in favour of arbitration.

The court found that the first arbitration was a nullity because it was commenced by a dissolved partnership that no longer existed.

The court also found that the second arbitration was statute-barred under the Limitations Act, 2002, as the arbitration agreement did not contain clear and express language contracting out of the statutory limitation period.

The court declined to stay the application, finding that the issues were questions of law appropriate for summary judgment under the Arbitration Act, 1991.

The application was granted and the motion to stay was dismissed.

The plaintiffs and a co-defendant brought a motion for partial summary judgment seeking a declaration that losses arising from the collapse of a basement wall were covered under a title insurance policy.

The insurer argued the policy was void due to a material misrepresentation in the insurance application concerning the nature of the dwelling, which was described as a single-family residence despite being used as a multi-unit property.

The court held that there were genuine issues requiring a trial, including whether the misrepresentation was material to the risk and whether the insurer would have issued the same policy had it known the true facts.

The applicants also argued that the insurer had effectively accepted coverage through prior correspondence, but the court found that the evidence surrounding the letter raised factual issues unsuitable for summary judgment.

The motion for partial summary judgment was dismissed.

Following the defendant’s successful motion for summary judgment dismissing the action, the defendant sought partial indemnity costs totaling $27,176.08.

The plaintiff argued that each party should bear their own costs, citing the public interest nature of the claim concerning the rights of a disabled employee, her modest means, and proportionality concerns relative to the value of the claim.

The court held that the case did not raise issues of sufficient public policy importance to justify denying costs to the successful party.

However, the court found duplication of effort and excessive billing rates for work that could have been performed by junior counsel.

Costs were therefore reduced and fixed at $13,000 inclusive of disbursements and HST, payable within 12 months without interest.

Following a civil trial where the plaintiffs succeeded in obtaining judgment for a loan debt, the court addressed the issue of costs.

The defendant sought approximately $35,000 in costs, arguing that the plaintiffs’ litigation conduct unnecessarily prolonged and complicated the proceeding.

The court found that the plaintiffs had engaged in inappropriate conduct, including threatening correspondence, attempts to undermine the defendant’s professional reputation, and late disclosure of documents.

Although the plaintiffs were successful on the merits, the court held that their conduct justified a significant departure from the usual rule that costs follow the event.

Partial indemnity costs of $17,000 were awarded to the defendant and ordered to be set off against the plaintiffs’ judgment.

The defendant manufacturer brought a motion seeking relief from an earlier consent arrangement requiring it to maintain an exclusive distribution agreement with the plaintiff distributor pending further court order.

The court interpreted the earlier arrangement as permitting the matter to be brought back before the court and considered whether the plaintiff was entitled to an interlocutory injunction to maintain the agreement until trial.

Applying the test from R.J.R. MacDonald v. Canada (Attorney General), the court found that although there were triable issues regarding the duration and alleged breaches of the agreement, the plaintiff failed to establish irreparable harm and the balance of convenience did not favour injunctive relief.

The court emphasized that enforcing exclusive distribution agreements through injunctions can require ongoing judicial supervision of deteriorating commercial relationships.

The request for an interlocutory injunction was refused, though the agreement was temporarily maintained for 60 days to allow the distributor to transition its business.

A mining company sought indemnification from the federal government for environmental remediation costs associated with uranium tailings produced under Cold War-era fixed-price uranium supply contracts with a Crown corporation.

The plaintiff argued that the contracts contained an implied term guaranteeing profitability or requiring indemnification if later government regulation increased production costs, and alternatively alleged breach of a duty of good faith and unjust enrichment.

The government moved for summary judgment dismissing the action, while the plaintiff brought a cross-motion for partial summary judgment.

The court held that the proposed implied term was inconsistent with the express fixed‑price structure of the contracts and failed the necessity test for implying contractual terms.

It further held that the doctrine of good faith could not be used to create new obligations inconsistent with the contract, and that the government's enactment of environmental legislation did not constitute contractual bad faith.

The defendants appealed a Master’s order compelling them to answer discovery questions concerning legal advice they had received from government lawyers regarding the refusal to register private career colleges under the Private Career Colleges Act, 2005.

The Master held that solicitor‑client privilege had been waived because the defendants referenced legal advice during discovery and allegedly placed their state of mind in issue.

The court held that merely acknowledging receipt of legal advice, or explaining that conduct occurred after receiving advice, does not waive privilege.

Waiver arises only where a party relies on legal advice as a substantive element of a claim or defence.

As the defendants did not rely on legal advice to establish their good faith defence, privilege was not waived and the Master’s order was set aside.

The plaintiffs brought a motion arising from a dental malpractice action seeking a further and better affidavit of documents and leave to conduct a focused continuation of the defendant’s examination for discovery after a specific dental instrument was produced for the first time during discovery.

The court considered the interaction between the 2010 amendments to the Rules of Civil Procedure, including discovery plans under Rule 29.1 and proportionality in discovery under Rule 29.2, and the traditional jurisprudence governing undertakings and follow‑up discovery.

The court held that an examination for discovery is not complete until proper follow‑up questions arising from undertakings or newly produced evidence can be asked.

The defendant was granted leave to amend the defence, and the plaintiffs were permitted a limited further discovery focused on the instrument.

Partial indemnity costs were awarded to the plaintiffs.

The Crown brought an action under the Tobacco Damages and Health Care Costs Recovery Act against several domestic and foreign tobacco companies, claiming $50 billion for health care costs related to tobacco disease.

Six foreign defendants brought motions to set aside service ex juris and stay or dismiss the action, arguing the Ontario court lacked jurisdiction simpliciter.

The court dismissed the motions, finding that the Crown had established a good arguable case that the foreign defendants conspired and acted in concert to commit tobacco-related wrongs, establishing a real and substantial connection to Ontario.

The applicant sought an order removing a Notice of Security Interest registered on title to her residential property in relation to a rented hot water system.

She also sought orders compelling the respondent to sell or rent the system and other related relief.

The court held that the respondent was entitled under the Personal Property Security Act to register the notice of security interest and that the applicant had not satisfied the statutory requirements for discharge.

Material facts regarding the contractual relationship were in dispute, making the matter unsuitable for determination by application rather than action.

The court concluded it lacked jurisdiction to order removal of the notice absent payment into court or fulfillment of statutory grounds.