Civil Litigation - Defendant - SCJ

The plaintiff, Jaymat Limited, brought a motion for summary judgment against the defendants, Vivo Pizza Pasta Franchising Inc. and Pino Trichilo, for repayment of advances made in respect of several restaurant locations.

The court found that the advances, initially ambiguous as to whether they were loans or equity, were ultimately confirmed as loans by a promissory note signed in October 2021.

The court held that both defendants received consideration for signing the note, and that the note was enforceable.

Judgment was granted to the plaintiff for $2,100,000 plus interest, with leave to amend the corporate defendant’s name.

The applicant sought a 10% share interest in a corporation that owned a property, alleging an oral agreement with one of the respondents in exchange for services related to financing, soil remediation, permits, and finding buyers for the property.

The respondents denied any such agreement or authority to bind the corporation.

The court found no credible or reliable evidence to support the applicant's claims, noting the absence of any documentation for a significant business transaction and the applicant's evasiveness during cross-examination.

The application was dismissed.

This is a child protection summary judgment motion brought by the Children's Aid Society of Ottawa seeking a finding that three children (S.L., J.L., N.C.) are in need of protection and an order for extended society care.

The parents contested the grounds for protection and the disposition.

The court found no genuine issue requiring a trial regarding the children being in need of protection under multiple subsections of the Child, Youth and Family Services Act, and ordered extended society care.

However, the court found a genuine issue requiring a trial regarding the parents' access to the children.

The respondent mother brought an urgent motion seeking the immediate sale of the jointly owned matrimonial home due to imminent bank foreclosure and to strike the applicant father's pleadings for non-compliance with a disclosure order.

The father opposed the sale, asserting the children's best interests and his efforts to manage the property.

The court granted the mother's request for the immediate sale of the matrimonial home, dispensing with the father's consent and granting the mother sole authority over the sale process.

The motion to strike pleadings was adjourned.

The court found the property unaffordable for the father, the sale inevitable, and no legitimate family law claims prejudiced by the sale, also noting the father's uncooperative and bizarre conduct.

This decision is Phase 3 of a motion to settle a Section 7 Order under the Class Proceedings Act, 1992.

The court is finalizing the Draft Section 7 Plan, which facilitates the transition of a proposed class action, previously denied certification, into up to 60 individual joinder actions against various hockey leagues and teams.

The plan addresses notice dissemination, the approval of contingency fee agreements, the management of third-party claims by staying them under Rule 29.09 of the Rules of Civil Procedure, and the potential for severance of actions.

The court also proposes a consensual settlement track for modest claims as an alternative to litigation.

The plaintiff, Dr. Darryl Gebien, sought court approval for a Third-Party Funding Agreement with Omni Bridgeway Ltd. for a proposed class action against numerous pharmaceutical companies regarding the opioid crisis.

Several defendants objected to specific provisions of the agreement, including those related to amendments, assignments, attornment, costs enforcement, termination procedures, accrued costs, and confidentiality.

The court found that while the agreement generally met the requirements for approval, several of the defendants' objections, particularly concerning comprehensive attornment by Omni Bridgeway Ltd. and the broad confidentiality provisions, were "genuinely meaningful" and required resolution.

The motion for approval was adjourned to allow the parties to address these issues, with the court emphasizing that it is not its role to draft the agreement.

The appellant, S.B., appealed a decision by the Consent and Capacity Board (the Board) that upheld a physician's finding of his incapacity to manage property due to Huntington's disease.

The Board applied a two-part test under the Substitute Decisions Act, finding S.B. could understand financial information but could not appreciate the reasonably foreseeable consequences of his financial decisions.

The Superior Court of Justice reviewed the appeal on a standard of palpable and overriding error for mixed questions of fact and law.

The court dismissed the appeal, concluding that the Board correctly applied the capacity test by considering S.B.'s lack of insight into his condition's impact on his finances, coupled with his history of poor financial management and vulnerability to exploitation.

The court also rejected the argument that a pre-existing Power of Attorney nullified the capacity assessment, as this issue was not raised at the initial Board hearing.

Following the dismissal of the applicant's motion to terminate her brother's authority as power of attorney for personal care for their mother, the successful respondent sought costs on a full indemnity basis.

The court awarded costs on a partial indemnity scale, noting the respondent's settlement offer was a package deal that included issues not before the court.

The court fixed costs at $37,500, payable by the applicant personally, reiterating that costs in estate and power of attorney matters are generally paid by the unsuccessful litigant, not the estate.

The applicant brought a motion for a finding of contempt against the respondent, an estate trustee.

The court dismissed the contempt motion, finding the respondent had made good faith efforts to comply with a previous order.

The court then considered costs, noting the respondent's offer to settle closely matched the decision.

The applicant was ordered to pay the respondent's partial and substantial indemnity costs, totaling $21,766.76.

The court declined to order the estate to pay the remainder of the respondent's full indemnity costs, citing some faults on the respondent's part, but primarily emphasizing the unnecessary nature of the applicant's motion.

The plaintiff, Podogaetam Holdings Inc., brought a motion for partial summary judgment against the defendants, Stephane Langlois and Pierre Charron.

The plaintiff sought a finding that Langlois breached his contract, and initially that Charron was negligent and breached fiduciary duties.

At the outset, the plaintiff withdrew the negligence claim against Charron and acknowledged Langlois was not disputing the breach of contract claim, leading to judgment against Langlois on that basis only.

All claims against Christian Pilon were dismissed by agreement.

The core of the motion proceeded on the breach of fiduciary duty claim against Charron.

The court dismissed the motion for partial summary judgment, finding genuine issues of credibility and conflicting evidence regarding the circumstances of the loan, the plaintiff's reliance on Charron, and the plaintiff's acknowledgment of risks and waiver of independent legal advice.

The court also noted that the issue of fiduciary duty could not be readily bifurcated from other negligence claims, making partial summary judgment inappropriate and risking inconsistent findings.

The plaintiff, 3113736 Canada Ltd. (formerly Valle Foam Industries (1995) Inc.), sought summary judgment for unpaid invoices totaling $184,319.34 and dismissal of the defendant's (Cozy Corner Bedding Inc.) counterclaim.

The defendant's counterclaim alleged overpayment due to the plaintiff's admitted price-fixing during an earlier period and sought $410,000.

The court found no genuine issue for trial regarding the plaintiff's claim for unpaid invoices.

The court also found that the defendant's counterclaim was released and deemed discontinued by a national class action settlement, which the defendant had not opted out of, despite claiming lack of actual notice.

The court emphasized that adequate notice, not actual notice, is required for class action settlements to bind class members.

This motion concerned a request by the respondent to set aside outstanding child and spousal support arrears and conclude his support obligations, citing a material change in income since the original 2010 settlement agreement.

The applicant opposed, seeking to add to arrears for post-secondary expenses and enforce a life insurance policy requirement, while also requesting ongoing child support for a dependent adult child.

The court partially granted the respondent's request, fixing total arrears at a reduced amount, ordering ongoing child support for the dependent adult child at a reduced rate, and terminating spousal support, while dismissing the applicant's request to add further arrears for post-secondary expenses and for compensation related to the life insurance policy.

Following the dismissal of the plaintiff's construction lien action and the success of the defendants' counterclaim, the defendants sought full indemnity costs against the plaintiff and its non-party principals.

The court found that the plaintiff's principal engaged in egregious conduct, including fabricating evidence and lying under oath, justifying a full indemnity costs award.

The court ordered costs against the plaintiff and one of its non-party principals jointly and severally, finding his conduct amounted to an abuse of process.

Costs were not awarded against the other non-party principal, as he did not orchestrate the deceit.

The applicant mother sought sole custody and specific child support orders, including arrears, for her two children from the respondent father.

The respondent father opposed the variation and sought sole custody for himself.

The court found a material change in circumstances due to chronic parental conflict, communication issues, and the children's evolving needs, particularly Dante's ADHD.

The court granted sole custody to the mother, finding her parenting plan more child-focused and her communication more effective.

The father's access was set to alternate weekends, with potential for mid-week access contingent on his participation in counselling.

Child support and special expenses were adjusted and arrears confirmed.

This decision addresses two motions brought by Trisura Guarantee Insurance Company in the context of construction lien proceedings.

The first motion sought to set aside a charging order obtained by BPR Litigation Lawyers against a construction lien bond without notice to Trisura.

The second motion sought leave to pursue exoneration and payment out of the bond.

The court found that Trisura did not require leave to challenge the charging order, had standing due to its direct proprietary and economic interests under an Indemnity Agreement, and consequently, the charging order was set aside for lack of notice.

However, the court denied Trisura leave to bring its motion for exoneration within the construction lien actions, determining that such a claim, based on a separate Indemnity Agreement, did not expedite the resolution of the lien issues and was already the subject of a separate action in Toronto, posing a risk of inconsistent findings.

Following a successful motion under Rules 20 and 21 resulting in the summary dismissal of an action, the moving defendants sought costs against the plaintiff.

The court considered the complexity of the issues, including arguments under the Regulated Health Professions Act, 1991 and the Health Professions Procedural Code concerning the regulatory authority of the professional college.

The court found the hours and rates of counsel generally reasonable but reduced the bill to account for duplication between two lawyers and travel time.

Partial indemnity costs were fixed with additional HST and disbursements.

The plaintiff was ordered to pay the total amount within 30 days.

The plaintiff slipped and fell on ice near a commercial coffee shop.

During the jury trial, the court was asked to rule on whether the coffee shop was an occupier of its outdoor patio and the adjacent municipal sidewalk.

The court held that the patio was not a common element under the lease and that the coffee shop was its sole occupier.

Furthermore, by constructing a fence that funnelled customers across a specific portion of the municipal sidewalk and by actively clearing and salting that area, the coffee shop assumed sufficient control over the sidewalk to be considered an occupier under the Occupiers' Liability Act.

The applicants brought a motion under Rule 59.06(1) of the Rules of Civil Procedure seeking to amend a prior order on the basis that it contained an accidental slip.

The earlier order, which permitted payment of mortgage funds into court and directed a trial of issues, mistakenly referred to “other monies,” which the respondent argued entitled her to withdraw the full amount paid into court before trial.

The court found that the word “other” was a drafting error copied from an alternative draft order and did not reflect the manifest intention of the original judge.

The court held that the funds were intended to remain as security pending trial rather than an admission of liability.

The order was varied to remove the erroneous wording, the respondent’s cross‑motion was dismissed, and the respondent was permitted to withdraw only the undisputed portion of the mortgage debt.

On a summary judgment motion brought by solicitor defendants in a professional negligence and fiduciary duty action arising from an individual pension plan transaction, the court held the record could not satisfy the full appreciation test under rule 20.

The court found multiple triable issues, including the scope of an unwritten retainer, whether there was a duty to inform and warn the client about IPP compliance requirements, and whether a conflict of interest arose from repeated referral arrangements.

The court also found factual disputes regarding reliance on third-party experts and the solicitor's role in structuring and signing foundational corporate documentation.

Summary judgment was refused and the action, including cross-claims, was directed to proceed to trial.

Following a jury trial on damages arising from a motor vehicle accident, the defendant brought a threshold motion under s. 267.5(5) of the Insurance Act arguing that the plaintiff had not established a permanent serious impairment of an important physical, mental, or psychological function.

The jury awarded $10,000 in general damages but no other damages, which would result in no recovery after the statutory deductible.

The court independently assessed the threshold issue and concluded that the plaintiff suffered chronic pain, fibromyalgia, and major depression causally related to the accident, resulting in permanent impairments affecting employment capacity and daily functioning.

The court rejected defence expert evidence alleging malingering and preferred the evidence of treating physicians and other experts.

The statutory threshold was therefore met and the defendant’s motion was dismissed.