Civil Litigation - Defendant - SCJ

The plaintiff brought an action against 28 physicians, a hospital, and the provincial and federal governments, alleging negligence and misrepresentation leading to a delayed diagnosis of Lyme disease.

The defendants brought motions to strike the statement of claim.

The court struck the claims against the provincial and federal governments without leave to amend, finding the plaintiff failed to provide statutory notice to Ontario and failed to plead material facts establishing a duty of care by the governments.

The court also struck several paragraphs of the claim against the physicians and hospital, but granted the plaintiff leave to amend to properly plead material facts supporting his claims in negligence, vicarious liability, and breach of fiduciary duty.

The plaintiffs sought costs of a motion on a substantial or partial indemnity basis.

The defendants argued that no costs should be awarded due to divided success.

The court noted that relief was consented to, some relief was withdrawn, and success was divided on the contested relief.

The court found no conduct warranting substantial indemnity costs and ordered that the parties bear their own costs.

The defendants were successful in defending a defamation action brought by the plaintiffs regarding a scientific controversy.

The defendants sought costs of over $2.2 million, while the plaintiffs proposed approximately $236,000.

The court noted the defendants presented a comprehensive and formidable defence, whereas the plaintiffs' case was not robust and relied on a failed strategy.

Applying the principles for fixing costs, the court balanced the need to indemnify the successful, blameless defendants against the risk of deterring future litigants.

The court fixed the defendants' costs at $1,478,766.64, inclusive of fees, disbursements, and HST.

This case is a re-hearing on damages following a Divisional Court decision that remitted the matter back to the trial judge for a proper valuation of the plaintiff's 25% share interest in the defendant company, My Insurance Brokerage (MIB), after a breach of contract.

The court assessed conflicting expert evidence on share valuation, utilizing both income/cash flow and market multiple methods.

The plaintiff's expert's opinion was approached with caution due to an undisclosed professional relationship and unrealistic assumptions regarding minority discount and the impact of the 2008-2009 financial crisis.

While generally preferring the defendant's expert's methodology, the court found an error in valuing MIB as a start-up and ordered an upward adjustment to the cash flow multiple.

The final fair market value of the shares was to be determined as the midpoint between the recalculated income/cash flow valuation and the market method valuation.

The applicant municipality sought a determination regarding the nature of an appeal under s. 15.3(4) of the Building Code Act, 1992 from a property standards committee decision, specifically whether the appeal proceeds as a hearing de novo or as an appeal limited to the record.

The court considered conflicting authorities of the Superior Court addressing the issue.

Preferring earlier precedent, the court held that such appeals are hearings de novo, permitting the parties to introduce new and oral evidence, including evidence arising after the committee hearing.

The court emphasized that under s. 15.3(6) the court possesses the same powers and functions as the committee, including receiving evidence and determining issues on the merits.

The defendant brought a motion to set aside a 1999 default judgment obtained in an estate-related action alleging misappropriation of estate assets.

The court applied the three-part test under Rule 19.08 of the Rules of Civil Procedure requiring promptness, an adequate explanation for the default, and a triable defence on the merits.

Although the court accepted that the motion was brought promptly after the defendant claimed to learn of the judgment, it found he had knowledge of the action at the time and intentionally ignored the proceedings despite substituted service and direct communications with counsel.

The defendant failed to provide a credible explanation for the default and did not advance any detailed evidence establishing a triable defence.

Considering the significant prejudice arising from attempting to litigate allegations more than a decade later, the court held the interests of justice favoured maintaining the judgment.

The plaintiffs brought a motion under Rule 3.02 of the Rules of Civil Procedure seeking an extension of time to serve their statement of claim after the service deadline had expired.

The delay resulted from inadvertence and administrative errors by the plaintiffs’ counsel, and the motion itself was also brought after additional delay.

Applying the principles from Chiarelli v. Weins, the court focused on whether the defendant would suffer prejudice caused by the delay.

The defendant provided only general assertions of potential prejudice and no specific evidence demonstrating prejudice arising from the late service.

The court held that the absence of demonstrated prejudice favoured permitting the action to proceed on its merits and granted the extension, with no order as to costs.

Following reasons determining a contract interpretation dispute regarding the price payable to repurchase property, the court addressed costs.

The successful party sought partial indemnity costs of approximately $32,000, while one opposing party proposed a $10,000 award and another argued that no costs should be ordered.

Applying the principles in Rule 57.01 of the Rules of Civil Procedure and the jurisprudence emphasizing fairness and reasonableness, the court found the requested costs excessive given the number of lawyers involved and the volume of hours billed.

The court reduced the award and fixed costs at $15,000 payable by one applicant, noting that the other applicant had minimal involvement in the litigation.

A former equity partner withdrew from an accounting partnership and joined a competing firm, triggering a liquidated damages clause requiring payment equal to two times the partner’s “permanent capital.” The dispute concerned whether shareholder loans made through a related corporation formed part of “permanent capital” under the partnership agreement.

The court interpreted the agreement according to its plain language and held that permanent capital was equivalent to the partner’s capital account in the partnership, which had been equalized to $10,000 and did not include shareholder loans.

The plaintiff was therefore liable for $20,000 in liquidated damages but was entitled to repayment of capital, profit share, shareholder loan amounts, and related payments.

Allegations of fiduciary misconduct and various counterclaims by the partnership, including claims for suppressed work‑in‑progress and loss of opportunity damages, were rejected.

Following a successful motion for an interlocutory injunction requiring the return of patient files and related property, the plaintiff sought costs on a partial indemnity basis.

The defendants argued that costs should be reserved to the trial judge as costs in the cause.

The court reviewed principles governing costs for interlocutory injunction motions, noting that because such motions do not determine the ultimate merits of the action, it is generally preferable to reserve costs to the trial judge unless exceptional circumstances justify immediate payment.

Finding no sufficient reason to depart from this approach, the court ordered that costs be costs in the cause.

The defendant brought a motion for summary judgment seeking dismissal of an action alleging the loss of money and sensitive documents from a briefcase stolen while the plaintiff was on the defendant’s premises.

The self‑represented plaintiff failed to comply with multiple court orders, did not deliver an affidavit of documents, and filed no responding affidavit material to the summary judgment motion.

Applying Rule 20 of the Rules of Civil Procedure and the “full appreciation test” articulated in Combined Air Mechanical Services Inc. v. Flesch, the court held that the record disclosed no genuine issue requiring a trial.

The court found the statement of claim contained only bald allegations unsupported by evidence and that the plaintiff had not put his best foot forward.

Summary judgment was granted dismissing the action.

Following motions for security for costs brought by two defendants, the court addressed the costs of those motions.

The defendants had obtained security for costs orders but in amounts lower than requested.

The court considered the factors under s. 131 of the Courts of Justice Act and Rules 1.04, 56.01, and 57.01 of the Rules of Civil Procedure.

While the moving parties were largely successful, reductions were warranted due to incomplete success and procedural issues related to timing of a statement of defence.

The court declined to award substantial indemnity costs and instead fixed fair and reasonable partial indemnity costs payable by the plaintiff.

Homeowners brought motions to amend their statement of defence and counterclaim to particularize defective installation of a radiant in‑floor heating system and to obtain summary judgment based on findings from the Licence Appeal Tribunal under the Ontario New Home Warranties Act.

The court held the amendment was not a new cause of action but merely a particularization of negligence already pleaded concerning the concrete foundation and construction defects.

Applying issue estoppel principles, the court found the Tribunal’s determination that the heating system constituted a major structural defect was a final judicial decision between the same parties and resolved the same issue.

Summary judgment was therefore granted on liability for breach of contract relating to the heating system, but damages were left for determination at trial.

Defendants brought motions for security for costs under Rule 56.01(1)(a) of the Rules of Civil Procedure against a foreign corporate plaintiff resident in Russia with no assets in Ontario.

The court confirmed the two‑stage framework for security for costs motions and held the defendants met the initial burden because the plaintiff was ordinarily resident outside Ontario.

The plaintiff failed to demonstrate impecuniosity or other circumstances making a security order unjust, despite having substantial funds abroad.

The court exercised its discretion to order staged security for costs, including amounts related to pending motions to discharge a certificate of pending litigation.

The court also granted a sealing order over a document containing non‑party investors’ financial information and awarded partial indemnity costs to the plaintiff for the confidentiality motion.

The plaintiffs sought damages arising from the termination of a memorandum of understanding and a subsequent agreement relating to the proposed development of an 80 MW wind energy project on the defendant's industrial lands.

The court held that both documents were largely agreements to agree and therefore unenforceable with respect to the broader development and lease arrangements.

However, the documents imposed limited binding obligations, including a requirement to provide 60 days’ notice before termination of the memorandum and an obligation to allow access for wind measurement under the second agreement.

The defendant breached those obligations by terminating immediately and preventing continued wind testing.

Claims for fiduciary duty, breach of confidence, unjust enrichment, partnership, and loss of chance damages were rejected.

Following a jury trial in two related motor vehicle personal injury actions where the plaintiffs recovered no damages, the defendants sought substantial partial indemnity costs exceeding $178,000 against one plaintiff.

The court considered the general principles governing costs under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, including reasonableness, the indemnity principle, and access to justice.

The plaintiff argued that costs should be nominal or none due to financial hardship, lack of employment, and the presence of some medical evidence supporting the claim.

The court held that while unsuccessful litigants should generally pay costs, impecuniosity and hardship may be considered in fixing the quantum.

Balancing these factors, the court reduced the costs significantly and ordered the plaintiff to pay $35,000.

The defendants brought a motion for security for costs under Rule 56 in an action arising from a failed real estate transaction and subsequent landlord‑tenant disputes.

The self‑represented plaintiff alleged fraud and misrepresentation relating to a Seller Property Information Statement and sought extensive damages against the vendors and real estate agents.

The court found that the defendants met the threshold under Rule 56 due to outstanding unpaid costs awards and concerns that the action was frivolous or vexatious.

The plaintiff failed to prove impecuniosity or provide evidence supporting financial hardship.

Security for costs was therefore ordered, with different amounts depending on whether the plaintiff proceeded under the regular or simplified rules.

The moving party sought an order dismissing relief requested in a notice of hearing for directions and a declaration that the court lacked jurisdiction to continue a reference arising from a judgment for sale under the Partition Act.

The original judgment ordered the sale of jointly owned properties under the direction of a referee, with proceeds to be paid into court.

The applicant in the original proceeding later privately sold its ownership interest without complying with the judgment for sale and without paying proceeds into court.

The court held that the judgment for sale was the sole jurisdictional basis for the reference and had become unenforceable due to the private sale.

As a result, the reference master lacked jurisdiction to continue the reference.

Following a successful summary judgment motion dismissing the plaintiff’s claim, the defendants sought substantial indemnity costs exceeding $58,000.

The plaintiff argued the defendants achieved only mixed success because one of their legal arguments failed and sought costs on that issue.

The court held that the defendants achieved complete success because the action was dismissed in its entirety and that unsuccessful arguments do not constitute divided success where they were reasonably advanced.

While the court declined to award substantial indemnity costs, it granted the defendants their full partial indemnity costs for the motion.

Costs of $39,910.36 were ordered payable within 30 days.

In a motor vehicle accident action involving an uninsured driver, the OPCF 44‑R insurer brought a motion for summary judgment seeking a declaration that the insured driver was at least one percent at fault, which would remove the insurer from liability under the Negligence Act.

The court held that credibility issues and conflicting testimony regarding the circumstances of the collision required a trial, applying the “full appreciation test” articulated in Combined Air Mechanical Inc. v. Flesch.

The written record and cross‑examinations created genuine issues requiring trial, particularly regarding the drivers’ credibility and the sequence of events at the intersection.

The summary judgment motion was dismissed.

The insurer was awarded costs of an abandoned motion brought by another defendant and obtained a contingent declaration concerning the priority of insurance coverage for damages exceeding $200,000.