Civil Litigation - Defendant - SCJ

The defendant architect brought a motion for particulars of the plaintiffs' fresh as amended statement of claim regarding alleged design errors and cost overruns on a hotel redevelopment project.

The defendant also sought to strike a paragraph pleading the purchase of professional liability insurance.

The court dismissed the motion for particulars, finding the plaintiffs had provided sufficient detail in their response to enable the defendant to plead, and that further detail was a matter for discovery.

The court granted the motion to strike the insurance paragraph, finding it scandalous and irrelevant to the dispute.

In a receivership proceeding, the Receiver brought a motion for declaratory relief regarding amounts owed under a loan and mortgage by the respondents.

The respondents brought a cross-motion arguing the Receiver's claim was barred by the two-year limitation period under the British Columbia Limitation Act.

The court found that while the respondents had not acknowledged liability to extend the limitation period, a prior petition commenced by the respondents in British Columbia within the limitation period preserved the claim.

The court held the Receiver's motion was not statute-barred and could proceed to be determined on its merits.

The defendant brought a motion under Rule 31.11(6) to read in the discovery transcripts of its deceased corporate representative.

In response, the plaintiff brought a cross-motion seeking production of communications between the deceased representative, the defendant, and its lawyers, as well as documents relating to a consulting agreement between the representative and the defendant.

The court dismissed the request for general communications, finding it was too late to seek discovery documents and that the communications were privileged.

However, the court ordered the production of documents relating to the formation of the consulting agreement, as they were relevant to the credibility of the deceased witness's evidence for the pending Rule 31.11(6) motion.

The applicant property owner sought an order prohibiting the respondent neighbours from parking on a shared right-of-way.

The respondents argued they had acquired a prescriptive right to park there and cross-applied to restrict the applicant from using the right-of-way to launch marine vehicles.

The court dismissed the application, finding the respondents had established an absolute and indefeasible right to park on the right-of-way through over 40 years of continuous use.

Furthermore, the court held the applicant's easement rights were limited to foot access to the beach and enjoined the applicant from operating motorized vehicles or building ramps on the unpaved portion of the right-of-way.

The defendants brought a motion seeking a further and better affidavit of documents from the plaintiff due to alleged overproduction and lack of categorization, and both parties sought security for costs as none were ordinarily resident in Ontario.

The court ordered the plaintiff to categorize its 24,000 documents and denied the plaintiff's request for increased discovery time.

Both 6Points Food Services Ltd. and Carl's Jr. Restaurants LLC were ordered to post $80,000 each in security for costs, with the court finding Carl's Jr. to be an "initiating plaintiff" despite being a defendant by counterclaim, due to its prior commencement of proceedings in California.

Following a summary judgment granting the plaintiffs $6,000 in damages for defamation, the plaintiffs sought partial indemnity costs of $43,356.82.

The court considered the defendant's financial situation and the principle of proportionality, ultimately fixing costs at $10,000.

A case conference was held to address procedural issues following previous endorsements.

The court directed the parties to draft separate orders for six prior motions.

The court also scheduled a Rule 21 motion brought by the defendant Shapiro regarding the plaintiff's Fresh as Amended Statement of Claim, and scheduled the plaintiff's renewed motion for a Mareva injunction.

Finally, the court set a timetable for written submissions regarding the Atkinson defendants' request to pay outstanding costs orders from funds held in trust.

This endorsement addresses multiple ongoing proceedings involving Nadire Atas, providing case management directions.

Key issues include Ms. Atas's late filing of an agenda, the transfer of personal property from a storage locker, the continuation of various claims against the Chahals and Sutton Group Realty, the management of three defamation actions (including pleadings, counterclaims, and injunctions), and the resolution of mortgage enforcement costs for Peoples Trust.

The court also addresses collateral attacks on previous judgments and outstanding solicitors' fees.

A significant directive is issued regarding Ms. Atas's access to transcripts, conditional on a payment towards outstanding costs owed to Peoples Trust due to her history of non-payment.

The applicant, Mr. Adeniji, sought to set aside or vary a consent order requiring him to pay $20,000 in security for costs, alleging fraud by the respondent, Ms. Segbaya, and a change in circumstances (impecuniosity) caused by her actions.

Ms. Segbaya moved to dismiss Mr. Adeniji's application for his failure to pay the security for costs.

The court found that Mr. Adeniji failed to prove his impecuniosity or that Ms. Segbaya caused it, citing inconsistencies and lack of evidence.

Consequently, Mr. Adeniji's motion to set aside/vary was dismissed, and Ms. Segbaya's motion to dismiss Mr. Adeniji's application for non-compliance with the security for costs order was granted.

The court also ordered the release of funds Ms. Segbaya had paid into court and awarded costs to Ms. Segbaya.

The defendants moved to strike the plaintiff's statement of claim, which alleged a failure to provide a timely letter of reference, for disclosing no reasonable cause of action.

The plaintiff brought a cross-motion to amend the statement of claim to allege that the corporate defendant breached its policy to provide a reference.

The court allowed the amendment and dismissed the motion to strike, finding that the amended pleading sufficiently alleged a breach of the employment contract and related torts.

The plaintiff moved for judgment on an accepted offer to settle, seeking a determination on the applicable prejudgment interest rate.

Shortly before the offer was accepted, an amendment to the Insurance Act came into force, reducing the prejudgment interest rate for non-pecuniary damages.

The plaintiff argued the amendment was substantive and did not apply retroactively, while the defendants argued it was procedural and did apply.

The court held that the amendment to the calculation of prejudgment interest was procedural in nature and therefore applied retroactively, resulting in the lower interest rate being applied to the settlement amount.

The moving parties sought an order preventing a lawyer from acting for the opposing party at trial due to an alleged conflict of interest arising from a prior solicitor-client relationship with the moving party’s principal.

The court considered whether confidential information had been shared during the earlier retainer and applied the principles governing disqualification of counsel, including those articulated in MacDonald Estate v Martin.

The court preferred the evidence of the moving party’s principal that confidential information regarding financial circumstances and litigation strategy had been disclosed.

Given the partnership relationship within the law firm and the absence of any ethical screen, the court found a reasonable risk that such information could be used to the prejudice of the former client.

The integrity of the justice system outweighed the responding party’s right to counsel of choice, and the lawyer and his firm were prohibited from acting in the trial.

A motion was brought for leave to intervene as an added party in two Requests for Direction concerning the disposition of Independent Assessment Process records created under the Indian Residential Schools Settlement Agreement.

The proposed intervenor, the National Research Centre hosted by the University of Manitoba, argued that it had a direct interest because it might be tasked with archiving the records and could assist the court on privacy and archival practices.

Several Catholic organizations opposed the motion, arguing the court lacked jurisdiction and that the applicant should participate only as a friend of the court.

The court held that it retained ongoing supervisory jurisdiction over the implementation of the class action settlement under the Class Proceedings Act, 1992 and the settlement agreement.

The court found the applicant met the criteria for intervention and that its participation would assist the court.

The insured sought summary judgment declaring that an all‑risk property and business interruption insurance policy covered losses arising from the preventive shutdown and repair of a hydroelectric penstock after a similar penstock failed due to defective welding.

The insurer had indemnified losses from the failed penstock but denied coverage for preventive repairs and business interruption relating to the second penstock.

The court held that the policy excluded the cost of rectifying defects in workmanship and that no insured loss had yet occurred because the second penstock had not suffered physical damage.

The court also rejected reliance on statutory mitigation obligations and the doctrine of imminent peril, finding the risk of failure was foreseeable but not inevitable.

The insurer’s cross‑motion for summary judgment was granted and the action dismissed.

The plaintiff brought a motion under Rule 25.11 of the Rules of Civil Procedure to strike portions of the defendants’ statement of defence, counterclaim and crossclaim.

The impugned pleadings alleged that the action was brought for abusive tactical purposes to suppress competition and also included allegations regarding the plaintiff’s reputation for unfair business practices.

The court held that the abuse of process allegations failed to plead the required material facts establishing a collateral purpose and a distinct overt act beyond the litigation itself.

The court further found that the reputational allegations were irrelevant and inserted solely to attack character.

The impugned paragraphs were struck as frivolous, vexatious, and scandalous, with leave granted to amend.

Following dismissal of an appeal concerning a municipal dispute over property use, the court addressed the issue of costs.

The respondent municipality sought substantial indemnity costs based on allegations of misconduct made by the appellant and the procedural complexity caused by the self-represented litigant.

The court held that elevated costs require reprehensible or outrageous conduct and declined to award substantial indemnity.

However, the court accepted that the appellant’s conduct significantly prolonged the litigation and increased costs.

After reducing certain disbursements and adjusting fee amounts, the court fixed partial indemnity costs payable by the appellant.

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 a class action certification motion where the plaintiff achieved certification for five insurance policies but the defendant successfully struck claims regarding 48 other policies, both parties sought costs payable forthwith.

The court held that because success was divided—with the plaintiff achieving procedural success and the defendant achieving substantial substantive success—the normal rule of awarding costs to the successful party did not apply.

The court ordered the costs of the certification motion to be in the cause.

In a wrongful dismissal action, the defendant employer brought a motion to amend its statement of defence to add a counterclaim alleging that the plaintiff employee had improperly claimed reimbursement for personal expenses and charged personal expenses to the employer’s credit card.

The plaintiff opposed the amendment, arguing the proposed counterclaim was statute-barred under the Limitations Act, 2002 because the underlying documents had been in the employer’s possession for many years.

The court held that the discoverability issue could not be conclusively determined on the limited evidentiary record before it and that it was not clear a reasonably prudent employer ought to have discovered the alleged misconduct earlier.

The court therefore granted leave to amend the pleading, leaving the limitation defence to be determined at trial.

Following a lengthy medical malpractice trial, the court had found one physician negligent and liable while two co-defendants were not found liable.

The parties had previously agreed that damages would be fixed at $430,000 inclusive of interest if liability were established.

The successful plaintiffs sought costs exceeding $529,000 including substantial indemnity fees and disbursements.

The court considered the complexity of medical negligence litigation, the reasonable expectations of the parties, the absence of a formal Rule 49 offer to settle, and the fact that the plaintiffs succeeded against only one of three defendants.

Applying the principle of proportionality and overall reasonableness, the court reduced the requested amount and fixed costs at $400,000 inclusive of disbursements and exclusive of taxes.