Civil Litigation - Defendant - SCJ

This case conference endorsement addresses the terms of an order following a successful motion by the plaintiffs to remove the defendants’ lawyers of record.

The parties could not agree on two terms: whether the order should specify that each defendant must be separately represented, and whether a deadline should be set for the defendants to retain new counsel.

The court held that the order should simply require separate representation, as per the original ruling, and declined to impose a deadline for retaining new counsel.

The endorsement also clarifies that the mechanism for representation of the Estate of Landino Zuccarini remains to be determined at a future hearing.

The Plaintiff brought a motion for leave to issue a Fresh as Amended Statement of Claim, consolidate two proceedings, and add Modern Cleaning Concept Inc. as a defendant after the limitation period.

The proposed defendant, Modern Cleaning, opposed the motion, arguing lack of reasonable diligence by the Plaintiff and non-compensable prejudice.

The court applied the Morrison v. Barzo framework, finding that the Plaintiff exercised reasonable diligence in discovering the claim against Modern Cleaning, particularly given Wal-Mart's delayed disclosure of the cleaning contractor.

The court also found that Modern Cleaning would not suffer non-compensable prejudice.

The motion was granted.

The court issued supplementary reasons on consent of the parties to amend paragraph 246 of the original trial decision.

The amended order declares the life insurance certificates in full force and effect, dismisses the defendants' counterclaim, and orders the defendants to pay the plaintiff $8,543.82 for mortgage payments, the full balance of the mortgage, $10,000 in mental distress damages, and $150,000 in punitive damages.

The plaintiff's action initially appeared before a judge for a summary judgment motion in the Central West Region.

The judge noted that the action fit within the definition of a class action currently being case managed in the Southwest Region, and initiated a motion to transfer the action to avoid inconsistent verdicts and promote litigation economy.

The Regional Senior Justice considered the relevant rules and statutory provisions, and ordered the proceeding transferred to the Southwest Region to be case managed with the class action, maintaining the temporary stay previously ordered.

The Corporation of the City of Kingston brought a motion for summary judgment to dismiss a trip and fall action by Darlene Petitpas.

The City argued the plaintiff's expert report was inadmissible and there was no genuine issue for trial.

The court found that the City, as the moving party, failed to meet its initial evidentiary burden by not providing evidence on the applicable standards for catch basin grates at the time of the fall (2018) or that the design/condition was in a proper state of repair at that time.

As the onus did not shift to the plaintiff, the motion for summary judgment was dismissed.

The plaintiff, a factoring company, sought summary judgment against a transport company and its directors for breach of contract and fraudulent misrepresentation related to uncollectible accounts receivable.

The court granted summary judgment for breach of contract against all defendants and for fraudulent misrepresentation against one director (Brar).

However, the fraud claims against the other director (Sharma) were dismissed due to insufficient evidence of his knowledge or recklessness.

The court also addressed the principles of summary judgment, partial summary judgment, and piercing the corporate veil.

The defendant moved for an order setting aside his noting in default.

The court considered the factors for setting aside default, including the defendant's explanation for delay, the substantial value of the claim, and the lack of prejudice to the plaintiffs.

The motion was granted, and the noting in default was set aside on terms, allowing the defendant to file a statement of defence and setting timelines for document exchange.

The plaintiff's insurance policy for a rental property was cancelled in 2007 due to non-payment.

A fire occurred in 2015, and the insurer denied the claim.

The plaintiff sued for negligence, alleging failure to notify him of the policy cancellation or non-renewal.

The defendant insurer brought a motion for summary judgment.

The court found the plaintiff's credibility questionable and the insurer's evidence reliable, concluding that the plaintiff was aware of the policy termination.

The motion for summary judgment was granted, and the plaintiff's action was dismissed.

This endorsement fixes the quantum of costs following a prior decision where WCL Capital Group Inc.'s cross-motion was dismissed and Google LLC's motion to permanently stay WCL's action was granted.

WCL was ordered to pay costs to Google and Amex Bank of Canada on a partial indemnity basis.

The court assessed the cost outlines, considering factors under Rule 57.01(1), including complexity, importance, and proportionality.

It found Google's claimed hourly rates and total hours excessive, noting duplication with Amex's submissions and disproportionality to the amount in issue.

The court fixed Amex's all-inclusive costs at $18,000 and Google's all-inclusive costs at $30,000.

The defendants Joe Avila and Sonia Avila (the "Hosts") brought a motion for summary judgment to dismiss the plaintiff Luis Avila's claim against them.

The claim alleged social host liability for injuries Luis Avila sustained during a physical interaction with another guest, Rui Couto, at a birthday party hosted by the Avilas.

The court found genuine issues requiring a trial, particularly regarding the foreseeability of harm, Couto's intoxication and behaviour, and the Hosts' awareness, which involved credibility determinations.

Given that the action would continue against Couto, granting partial summary judgment against the Hosts carried a risk of duplicative proceedings and inconsistent factual findings, which was deemed not to be in the interests of justice.

The motion was dismissed.

The applicant brought an application to remove an exhaust vent encroaching on her property.

The respondents removed the encroachment before the hearing, leaving only the issue of costs.

To determine costs, the court assessed whether the applicant would have succeeded on the merits.

The court interpreted a prior Resolution Agreement between the parties and found it did not grant an easement for the encroachment.

Concluding the applicant would have been successful, the court awarded her costs of $8,000 on a partial indemnity scale.

Following the release of a decision on the merits, the successful applicant sought substantial indemnity costs of $20,209.81.

The respondent argued for no costs or, alternatively, costs fixed at $8,000.

Applying Rule 57.01(1) and the principles from Boucher, the court found the issues were not complex but were important to the applicant.

The court awarded partial indemnity costs to the applicant fixed at $15,000 inclusive of disbursements and HST.

The plaintiffs brought an action for defamation against a lawyer and the law firm with which she practiced in association.

The defendant law firm brought a motion for summary judgment to dismiss the action against it, arguing it was not vicariously liable for the lawyer's actions.

The court found that the lawyer was not a partner or employee of the firm, and the firm did not control her practice.

The firm's letterhead and marketing materials clearly indicated she was 'Practicing in Association not in Partnership'.

The court granted summary judgment and dismissed the action against the law firm.

The moving defendant sought summary judgment dismissing a product liability action arising from a catastrophic motor vehicle accident in which the driver suffered quadriplegia after the driver’s seatback collapsed during a rollover.

The motion argued that the defendant seat assembler had no role in designing or manufacturing the allegedly defective recliner mechanism supplied by another manufacturer.

The court found that much of the evidence relied upon by the moving party was inadmissible, including transcripts from unrelated proceedings, discovery evidence of its own witness, and unsworn materials.

Applying the principles from Hryniak v. Mauldin, the court held that it lacked the necessary admissible evidence to make findings of fact or fairly resolve the dispute on a summary judgment motion.

The court declined to exercise expanded fact‑finding powers or conduct a mini‑trial, particularly given the presence of a jury notice and the possibility that negligence could be inferred from circumstantial evidence.

The defendant insurer brought a motion to dismiss an indemnification action brought by another insurer arising from a motor vehicle accident involving insured property.

The plaintiff insurer had denied coverage to its insured and was later found liable in separate litigation, after which it sought statutory indemnity from the other insurer whose insured driver was allegedly at fault.

The court considered whether the claim for contribution and indemnity was barred under s. 18 of the Limitations Act, 2002.

The court held that the plaintiff insurer was an alleged wrongdoer in the underlying action and that its indemnity claim fell within the contribution and indemnity regime governed by s. 18.

Because the plaintiff did not bring a third-party claim or otherwise commence its indemnity claim within two years of being served with the original statement of claim, the action was statute-barred.

The applicant sought a declaration that a foreign state held an equitable or other interest in shares of a Canadian mining company registered in the name of a state-owned corporation, and an order permitting seizure of those shares to satisfy an unpaid international arbitral award.

The court examined the structure of the state-owned corporation, the governing agreements surrounding the share issuance, and applicable foreign and domestic law.

It concluded that the foreign state provided the consideration for the shares, exercised effective control over them, and was intended by the parties to have a beneficial interest.

Under s. 18 of the Execution Act, that equitable interest constituted property capable of seizure.

The court therefore authorized seizure of the shares and related dividends to enforce the arbitral award.

In a motion relating to an application under the Building Code Act concerning the refusal of a building permit, the moving party sought production of the responding municipality’s expert engineer’s entire file and related communications.

The court considered the scope of implied waiver of litigation privilege where an expert affidavit has been served.

Applying authorities including Conceicao Farms Inc. v. Zeneca Corp. and Ebrahim v. Continental Precious Minerals Inc., the court held that waiver should be narrowly construed and that automatic production of an expert’s entire file is not required absent evidence raising concerns about the expert’s independence or authorship of the report.

As no such concerns existed and foundational information had already been produced, the request for full disclosure of the expert’s file was denied.

The court ordered limited re-attendance of witnesses for further cross-examination by video conference concerning new information arising from undertakings.

The plaintiff investment dealer brought an action against the defendant investment advisor for repayment of a transition loan.

The defendant's regulatory registration was suspended shortly after he joined the plaintiff, rendering him unable to fulfill his duties.

The plaintiff terminated the agency agreement and demanded repayment of the loan pursuant to the agreement's terms.

The defendant argued the loan was governed by a prior term sheet, claimed wrongful termination, and counterclaimed for bad faith.

The court found the written agency agreement governed, the plaintiff had cause to terminate due to the defendant's lack of registration, and the plaintiff made reasonable efforts to assist the defendant.

The court granted judgment for the plaintiff for the outstanding loan amount plus interest and dismissed the counterclaim.

The plaintiff brought an action seeking an order vesting title to a portion of his parents' property, which he had used to operate a scrap yard business with his late father.

He claimed his parents had promised him the land and sought a constructive trust based on the principles in Soulos v. Korkontzilas.

The court dismissed the claim, finding insufficient evidence of a clear promise and concluding that the family's mutual assistance did not give rise to unjust enrichment, wrongful conduct, or an equitable obligation that would justify imposing a constructive trust.

The plaintiff brought a motion to certify a proposed class action for damages pursuant to s. 130 of the Securities Act.

The defendants consented to certification, except for the plaintiff's proposed class definition which included purchasers in the secondary market.

The court held that s. 130(1) of the Act does not provide a statutory cause of action to purchasers in the secondary market, and revised the class definition accordingly before granting certification.