Civil Litigation - Defendant - SCJ

The defendants moved to dismiss a 2009 action for delay and, alternatively, for security for costs.

The court found the delay of 13 years to be inordinate and inexcusable, primarily due to the plaintiff Lawrence Mark Dale's inactivity and failure to provide explanations or respond to the motion.

A presumption of prejudice to the defendants arose, which the plaintiff failed to rebut, particularly given the nature of the conspiracy claims requiring witness recollection.

The action was dismissed for delay.

The court also addressed the security for costs motion, noting that if the action had not been dismissed, Mr. Dale would have been ordered to post $400,000 in security for costs to TRREB due to an outstanding costs order against him in another proceeding.

Following a judgment on the merits, the successful defendant sought costs on a substantial indemnity basis due to the plaintiffs' and a non-party's vexatious conduct.

The court agreed that substantial indemnity costs were warranted, but reduced the requested amount by $15,000 to sanction the defendant's own witness for frustrating an examination.

Costs were fixed at $39,803.89, payable jointly and severally by the plaintiffs and the non-party.

The defendants, Ministry of the Attorney General and Justice of the Peace Louise Logue, requested the dismissal of the plaintiff's action under Rule 2.1.01 of the Rules of Civil Procedure, alleging it was frivolous, vexatious, or an abuse of process.

The court found that Justice of the Peace Logue was immune from the claim and that no cause of action was pleaded against the Ministry of the Attorney General.

Consequently, the action was dismissed as frivolous and unsustainable at law.

The plaintiff insurer brought a motion for summary judgment against the defendants for fraud and conspiracy arising from a staged motor vehicle accident claim.

The uncontradicted evidence established that two of the defendants orchestrated a scheme to falsely report the driver's identity and submit fraudulent accident benefits and tort claims.

The court granted summary judgment against those two defendants for the amounts paid out by the insurer, but dismissed the motion against the son, finding insufficient evidence of his participation in the fraud.

The court declined to award punitive damages, finding the compensatory damages and prior costs orders sufficient for deterrence.

The plaintiff was struck by an unidentified driver while riding her electric scooter in a parking lot.

The driver fled the scene shortly after the collision while the plaintiff was being attended to by her husband and a friend.

The plaintiff sued her husband's automobile insurer under the unidentified automobile coverage.

The insurer brought a motion for summary judgment, arguing the plaintiff failed to take reasonable steps to identify the driver.

The court dismissed the motion, finding a triable issue as to whether the plaintiff's failure to obtain the driver's information was reasonable given her injuries and shock immediately following the accident.

The defendants brought an urgent motion to discharge a certificate of pending litigation (CPL) that the plaintiff had obtained without notice.

The central issue was whether the plaintiff failed to disclose a "No Registration" clause (NRC) in the Agreement of Purchase and Sale (APS) as a material fact.

The court found that the NRC was not material because the vendor had terminated the APS prior to the CPL motion.

Furthermore, the NRC did not explicitly prohibit CPL registration.

Applying the Dhunna factors, the court determined that justice favored maintaining the CPL, given the uniqueness of the land, the plaintiff's intent to reside there, and the inadequacy of damages as a remedy.

The defendants' motion to discharge the CPL was dismissed, and costs were awarded to the plaintiff.

The applicant, a candidate in a federal election, sought an injunction to prevent the respondent municipality from enforcing its election sign by-law against him and from organizing candidates' debates without his participation.

The applicant argued that city staff were unlawfully removing his compliant signs.

The court dismissed the application, finding that exempting the applicant from the by-law would be untenable and unfair to other candidates, and that the prospect of the city organizing an exclusionary debate was highly speculative.

No costs were awarded.

The plaintiffs brought a motion for summary judgment in an action arising from a failed real estate transaction.

The defendants, who had agreed to purchase the plaintiffs' home unconditionally, failed to close the transaction, alleging they were induced by a misrepresentation regarding the lot size.

The court found no genuine issue requiring a trial, concluding there was no misrepresentation and that the defendants simply regretted their purchase after a downturn in the real estate market.

Summary judgment was granted in favour of the plaintiffs for damages representing the difference in sale price and carrying costs.

This costs endorsement followed a one-day motion brought by Hanan El Badry to set aside a default judgment obtained by 620369 Ontario Inc. The motion was successfully opposed by 620369 Ontario Inc., making them prima facie entitled to costs.

The court found the motion was not unusual or complex and awarded partial indemnity costs, fixed at $5,000 all-inclusive, to be paid by Hanan El Badry to 620369 Ontario Inc. The court excluded costs related to bankruptcy proceedings or judgment enforcement as outside its jurisdiction.

The plaintiff, a land developer, sought insurance coverage from the defendant insurer for five underlying actions alleging misrepresentation of lot sizes, leading to claims of reduced property size and loss of use.

The defendant moved for a declaration that the alleged smaller lot sizes did not constitute "property damage" under its Comprehensive General Liability policy, and thus it had no duty to defend.

The plaintiff cross-moved for an order that the defendant did have a duty to defend.

The court found that the underlying claims for "loss of use of tangible property that is not physically injured" could constitute "property damage" as defined in the policy, particularly given the purchasers' equitable interest in the land.

Consequently, the court dismissed the defendant's motion and granted the plaintiff's cross-motion, declaring that the defendant had a duty to defend.

The court also addressed the issue of counsel selection, stating that merely disputing the duty to defend or indemnify does not automatically create a conflict requiring the insurer to surrender control of counsel appointment.

The plaintiff brought a motion to strike the jury and proceed judge-alone after defence counsel referred to the plaintiff's case as a 'cash grab' during closing submissions.

The plaintiff argued the comment was inflammatory and implied dishonesty.

The defendants opposed the motion and argued the plaintiff also made emotional appeals using analogies.

The court found the 'cash grab' comment was prejudicial but concluded a correcting instruction would be sufficient to cure the prejudice.

The motion to strike the jury was dismissed, and the court declined to give correcting instructions regarding the plaintiff's analogies.

The defendants moved to discharge a Certificate of Pending Litigation registered by the plaintiff over land in Mississauga, arguing that the plaintiff had no interest in the land, that there was material non‑disclosure in the ex parte application for the CPL, and that the plaintiff delayed unreasonably in seeking the certificate.

The plaintiff asserted that the parties had long contemplated the transfer of land for the construction of a Greek Orthodox church pursuant to agreements dating back to 1980.

The court held that the totality of the evidence demonstrated a reasonable claim to an interest in the land and a triable issue supporting the CPL.

The court further found that the plaintiff had provided sufficient disclosure on the ex parte motion and that the delay in seeking the CPL was reasonably explained.

Balancing the equities and the absence of demonstrated hardship to the defendants, the court concluded that maintaining the CPL was just.

The plaintiff brought a motion to transfer the action to another jurisdiction and for leave to amend the statement of claim after discovery evidence revealed additional entities allegedly involved in selling the plaintiff’s musical compositions.

The defendants argued the amendments were statute‑barred, would cause prejudice, lacked particulars, and were invalid because the underlying oral agreement contravened the Copyright Act.

The court held that amendments should generally be permitted under Rule 26.01 unless non‑compensable prejudice would result.

The court found the alleged cause of action arose after termination of the agreement in 2012, rejected arguments that the oral agreement was invalid under s. 13(4) of the Copyright Act, and concluded the proposed amendments raised triable issues.

Leave to amend was granted with limited exceptions, and the action was ordered transferred to Newmarket or Toronto.

The moving party sought to set aside two earlier Superior Court orders on the basis of a reasonable apprehension of bias, alleging that the judge who issued the orders should have recused himself due to a supervisory relationship with opposing counsel, who served as a deputy judge in the region.

The court held that it lacked jurisdiction to revisit the issue because the bias allegation had already been raised and determined in prior proceedings before the Divisional Court and in a motion for leave to appeal to the Court of Appeal.

Applying the doctrine of issue estoppel, the court found the matter could not be relitigated.

The court also refused the moving party’s request to amend pleadings where doing so would contradict an earlier order defining the issues for trial.

In a billion‑dollar negligence class action against auditors arising from allegedly defective audit reports relied upon by lenders, the plaintiffs brought a motion under Rule 30.10 of the Rules of Civil Procedure seeking production of investigative materials held by the Institute of Chartered Accountants of Ontario relating to disciplinary proceedings against two audit partners.

The court held that production from a non‑party requires proof that the documents are relevant and that it would be unfair to require the moving party to proceed without them.

The plaintiffs failed to demonstrate unfairness because they already possessed the underlying documentary record and extensive discovery evidence, and the investigator’s report was not necessary for the pending partial summary judgment motion or the pleaded issue estoppel.

The court further held that the materials were protected by a case‑by‑case privilege under the Wigmore criteria arising from confidential communications between the professional regulator and its members during disciplinary investigations.

A housing co-operative applied under s. 171.13 of the Co-operative Corporations Act for termination of a member’s membership and a writ of possession based on alleged nuisance and disruptive conduct.

The court reviewed the board’s decision on a standard of reasonableness and considered whether the co-operative complied with principles of natural justice and procedural fairness.

Concerns arose regarding the fairness of the process, including scheduling a termination meeting despite the member advising she could not attend and the participation of board members who were directly implicated in the allegations against her, raising a reasonable apprehension of bias.

The court held that the circumstances justified exercising its equitable jurisdiction under s. 171.21(1)(a) of the Act to refuse eviction.

The application to terminate membership and obtain possession was therefore denied.

A commercial plaintiff sued a roofing contractor for breach of contract after repair work on a commercial roof allegedly failed shortly after completion.

The contract included a three‑year warranty for repair defects.

The court found that the roof continued to leak in the areas repaired by the contractor and that the contractor failed to return to honour the warranty despite complaints.

Evidence from employees and a roofing expert established that the repair work was defective and required replacement.

Judgment was granted for the plaintiff for the cost of remedial repairs and related damages.

The Attorney General of Ontario brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike a statement of claim alleging malicious prosecution and conspiracy to commit malicious prosecution following a fraud charge that was later stayed.

The court held that the pleadings failed to disclose a reasonable cause of action.

The conspiracy allegations lacked the necessary particulars regarding the alleged agreement and overt acts of the conspirators.

The malicious prosecution claim also failed because the pleadings did not adequately allege absence of reasonable and probable cause or malice, as required by the Supreme Court of Canada in Miazga v. Kvello Estate.

The statement of claim against the Attorney General was therefore struck.

In a construction lien reference, the defendants moved for judgment enforcing a consent to judgment executed by the plaintiff after the plaintiff failed to post agreed security for costs.

The plaintiff had repeatedly breached court orders, including deadlines for undertakings, document production, and service of trial evidence.

The court exercised discretion to enforce the consent to judgment and considered the plaintiff’s repeated non-compliance and apparent inability or unwillingness to prosecute the action.

The motion judge held that these breaches undermined the plaintiff’s bona fide intention to proceed to trial.

Judgment was granted dismissing the plaintiff’s claim, discharging the lien, and discontinuing the defendants’ counterclaim.

The applicants sought to strike an agreement from the land registry that had been registered on the title of their residential property for nearly 25 years.

The agreement, made between siblings, contained a right of first refusal and provided for equal distribution of net proceeds upon the sale of the property.

The court found that the agreement was intended to survive the death of the parties and bind their heirs.

The court also held that the addendum binding the applicant's spouse was supported by valid consideration in the form of forbearance.

Finally, the court confirmed the agreement was properly registered on title under both the Registry Act and the Land Titles Act.

The application was dismissed.