Civil Litigation - Defendant - SCJ

The defendants brought a motion under Rule 21.01(1)(a) to strike the plaintiff's defamation claim, arguing that the allegedly defamatory statements were protected by absolute privilege as they were made in preparation for contemplated litigation.

The plaintiff opposed and also had a separate motion for particulars.

The court first addressed the defendants' motion, admitting an affidavit from one of the defendants.

Applying the five factors for absolute privilege in pre-litigation communications, the court found that the communication was protected by absolute privilege, as it was directly concerned with actual or contemplated judicial proceedings and made for the purpose of obtaining evidence from a limited audience.

Consequently, the court granted the defendants' motion, striking the Statement of Claim without leave to amend.

The plaintiff, Sharon Gannon, brought a wrongful dismissal action against Kinsdale Carriers Limited following the closure of its trucking business due to the economic impact of the COVID-19 pandemic.

The court considered whether the plaintiff had advanced notice of the closure and, critically, whether she failed to mitigate her damages by refusing an offer of comparable employment.

The court found that the plaintiff had constructive notice of the impending closure and that she unreasonably rejected a comparable job offer from Zehr Transport.

Consequently, the plaintiff was not entitled to reasonable notice damages.

The court determined costs for four motions previously heard in the proceeding.

The plaintiff was ordered to pay costs to the defendant Jain on a partial indemnity basis for a motion to admit further evidence, and on a substantial indemnity basis for motions regarding a Mareva injunction and Norwich order due to the plaintiff's reprehensible conduct, including making and withdrawing unfounded allegations of fraud.

The plaintiff was also ordered to pay full indemnity costs to the defendant Wang for a mortgage validity motion, pursuant to the standard charge terms of the mortgage.

The plaintiffs moved for an interim order to preserve the proceeds of sale of a property, an accounting of assets, and a sworn statement of assets from the defendants.

This is the second action against the defendant regarding a $250,000 loan.

The plaintiffs allege the defendant used the loan to help pay for a property registered in his former wife's name.

The defendant did not participate in the motion.

The court found insufficient evidence that the plaintiffs' funds were diverted to the property or that the defendant received the proceeds of its sale.

The motion was dismissed against the defendant without prejudice, and dismissed against the former wife on consent that she provide a trust ledger from the property's sale.

The defendant brought a motion for summary judgment to dismiss the claims against him arising from a three-way motor vehicle accident.

The defendant brought the motion before submitting to discovery and relied solely on a lawyer's double-hearsay affidavit rather than providing his own direct evidence.

The court dismissed the motion, finding that the record was insufficiently developed to permit a fair and just determination of the issues on the merits, and drew an adverse inference from the defendant's failure to provide his own evidence.

The plaintiff moved for a status hearing under Rule 48.14(5) to extend the set down deadline in an action regarding alleged construction defects in a custom home.

Only one defendant opposed the motion.

The Master found that the plaintiff provided an acceptable explanation for the litigation delay, noting that much of it was due to accommodating the defendants' requests.

The Master also found no evidence of non-compensable prejudice to the defendants.

The motion was granted, and a timetable was set for the remaining interlocutory steps.

The plaintiff brought motions to amend the statement of claim to add her minor children as anonymous plaintiffs with herself as litigation guardian, and to strike portions of the defendants' statement of defence.

The defendants opposed her appointment as litigation guardian, alleging a potential conflict of interest, and opposed striking the pleadings.

The court appointed the plaintiff as litigation guardian, finding no evidence of a conflict.

The court also struck several paragraphs of the statement of defence that pleaded evidence or irrelevant post-incident facts, while allowing paragraphs relevant to the police investigation to remain.

Following the dismissal of an oppression remedy application, the respondents sought substantial indemnity costs.

They argued that the application was the applicant's second unwarranted one on similar facts and that a comprehensive settlement offer, made after judicial mediation, was rejected.

The court declined to award substantial indemnity costs for the entire proceeding but found it fair and reasonable to award substantial indemnity costs from April 25, 2019, the date of the settlement offer.

The offer was deemed more favourable to the applicant than the outcome of the contested application, and no formal counter-offer was made.

The respondents were awarded fixed costs of $66,148.84 inclusive.

The defendants brought a motion to stay the plaintiffs' action for negligent repair and misrepresentation regarding an aircraft, arguing that Ontario lacked jurisdiction and that Alberta was the more appropriate forum.

The plaintiffs also moved to add a related federal corporation operating in Ontario as a defendant, which was granted on consent.

Applying the Van Breda test, the court found that Ontario had jurisdiction based on the defendants carrying on business in Ontario, the tort being committed in Ontario, and contracts being made in Ontario.

The court further held that the defendants failed to establish that Alberta was a clearly more appropriate forum, as most witnesses and the aircraft were located in Ontario.

The motion to stay was dismissed.

The applicants sought certiorari to quash witness summonses issued under the Provincial Offences Act, alleging abuse of process due to city officials misleading them into providing information.

The court dismissed the application, finding that the applicants could not demonstrate sufficient personal prejudice, that the trial court was the appropriate forum to address abuse of process arguments (which primarily protect accused persons), and that interlocutory prerogative relief should be granted only rarely to prevent delay and fragmentation of quasi-criminal proceedings, especially in light of R. v. Jordan.

The defendant brought a motion for the production of a confidential settlement agreement between the plaintiff and a third party.

The plaintiff and the third party opposed the motion, asserting settlement privilege.

The defendant argued that the monetary amount of the settlement must be disclosed to prevent the plaintiff from being overcompensated.

The court dismissed the motion, holding that settlement privilege applies and that it is premature to determine whether the overcompensation exception applies until liability is determined at trial.

The plaintiff brought a summary judgment motion seeking an order to compel the defendant municipality to issue adult entertainment establishment licenses, asserting a binding settlement agreement.

The municipality argued the settlement was not enforceable without a council resolution and that the plaintiff had lost its legal non-conforming use rights due to a 5.5-year cessation of operations.

The court dismissed the plaintiff's motion, finding that the settlement agreement was not binding on the Town without formal adoption by a by-law or resolution of council, and that any legal non-conforming use rights under the zoning by-law had been extinguished due to the prolonged discontinuance of operations.

This endorsement addresses the costs of a prior motion where the defendants were partially successful in striking out "campaign of defamation" allegations from the plaintiffs' Amended Statement of Claim, while the plaintiffs successfully opposed striking out pleas of malice.

The defendants sought $15,000 in partial indemnity costs.

The court, applying Rule 57.01 and considering the "fair and reasonable" principle, found that despite divided success, the "campaign of defamation" allegations were a principal issue where the defendants' position was validated.

The court awarded the defendants $11,500 in all-inclusive costs, payable by the plaintiffs.

The moving party sought partial summary judgment and default judgment declaring an equitable mortgage or equitable interest over two Ottawa properties, asserting priority over liens registered by the Canada Revenue Agency for tax debts of one of the defendants.

The claim relied primarily on a written agreement and the alleged use of funds provided by the moving party in property transactions.

The court held that the agreement did not establish the essential elements of an equitable mortgage, including a clearly defined debt and intention to charge specific property as security.

Significant disputes existed regarding the source of funds and the parties’ intentions, raising credibility issues.

The court concluded that these issues required viva voce evidence at trial and dismissed the motion for summary judgment.

Following an eight‑day civil trial in which the defendants were wholly successful, the court addressed costs.

The plaintiffs argued that costs should not follow the event because the litigation was pursued in the public interest and they were allegedly impecunious.

The court considered Rule 57 of the Rules of Civil Procedure, including proportionality, the circumstances of the dispute, the parties’ reasonable expectations, and the existence of settlement offers.

While acknowledging potential financial hardship and the plaintiffs’ stated public interest motivations, the court found that the defendants were entitled to recover costs.

Partial indemnity costs were awarded in a reduced amount, payable jointly by the unsuccessful plaintiffs.

Following the resolution of an application challenging a regulation after the respondents agreed to amend it, the court determined the appropriate quantum of costs payable to the applicants.

The applicants sought costs on a substantial indemnity basis, arguing the litigation involved costs thrown away and abusive conduct by the respondents.

The court rejected both arguments, holding the matter resembled a typical settlement scenario and that the respondents had not acted unreasonably.

The court also rejected requests to exclude negotiation time and expert-related costs from the applicants’ bill of costs, but found the total amount claimed excessive.

Applying the factors under Rule 57.01(1) of the Rules of Civil Procedure, the court awarded reduced costs on a partial indemnity basis.

The moving parties sought an order requiring the plaintiffs by counterclaim to post security for costs under Rule 56.01(1) of the Rules of Civil Procedure.

The responding parties included an individual residing outside Ontario and a corporation alleged to lack sufficient Ontario assets, and the moving parties also argued the counterclaim was frivolous and vexatious.

The court held it was unnecessary to determine those grounds because the counterclaim was closely connected to the issues in the main action, particularly the claim for rescission of a share purchase agreement.

The success of the main action and the counterclaim depended on the same factual and credibility issues.

In these circumstances, security for costs should not be ordered.

The plaintiff brought a motion under Rule 60.12 of the Rules of Civil Procedure seeking to strike the defendants’ statement of defence for failure to comply with a consent order requiring production of extensive documents and answers to refusals arising from discovery.

Evidence showed the defendants produced only eight irrelevant invoices and had not conducted a search to comply with the order.

On cross‑examination the individual defendant admitted the searches referenced in his affidavit were conducted earlier and not for the purpose of complying with the consent order, and that potentially relevant documents may exist with the company’s accountant and bookkeeper.

The court found the defendants had effectively done nothing to comply and criticized the affidavit evidence as clearly erroneous under oath.

However, the court declined to immediately strike the defence and instead granted a final opportunity to comply within 30 days, coupled with substantial indemnity costs and a security for costs requirement.

Following the granting of an interim injunction restraining individuals from interfering with development activities on privately owned land, the court determined costs of the application.

The responding parties argued that costs should not be awarded because the litigation raised public interest issues relating to Indigenous title and burial grounds.

The court rejected this characterization, finding the respondents engaged in trespass and intimidation rather than advancing their claims through lawful court processes.

Applying the proportionality principles under Rule 57.01 of the Rules of Civil Procedure and the guidance in Boucher v. Public Accountants Council for the Province of Ontario, the court fixed partial indemnity costs.

Costs of $12,500 were awarded to the applicants as fair and reasonable in the circumstances.

The plaintiff leasing company sued a co-lessee for a deficiency balance after a leased vehicle was not returned and was later stolen following two lease extensions.

The defendant argued he had only agreed to support the original lease financially and had not consented to the later extensions, which bore signatures found not to be his.

The court held that the defendant functioned as an accommodation surety and that the lease extensions materially varied the principal contract without his consent.

Under the law governing sureties and the lease’s entire agreement clause, such variations discharged the surety from liability.

The plaintiff’s claim was dismissed and the defendant succeeded on his counterclaim for repayment of funds withdrawn from his account after the original lease term.