Civil Litigation - Defendant - SCJ

This decision concerns a motion by Paula Boutis to amend her statement of claim in an employment and civil liability action against The Corporation of the County of Norfolk, the Board of Health for Haldimand-Norfolk Health Unit, Kristal Chopp, and Jason Burgess.

The court reviews the proposed amendments, including new causes of action such as breaches of the Human Rights Code, intrusion upon seclusion, intentional interference with contractual relations, negligent infliction of mental suffering, and defamation.

The court applies the principles governing amendments to pleadings, limitation periods, and the rules of pleading, granting or refusing leave to amend specific paragraphs accordingly.

The plaintiff's counsel requested a further capacity assessment, alleging the appointed assessor conducted the interview in Hindi rather than Punjabi and exhibited bias.

The court dismissed the request, noting the concerns were only raised after the report found the plaintiff lacked capacity.

The court accepted the assessor's finding, declared the plaintiff incapable of instructing counsel, and appointed the Public Guardian and Trustee as litigation guardian pursuant to Rule 7.04.

At a case management conference in a class proceeding, certain defendants requested a timetable for a motion to dismiss the action for delay under s. 29.1 of the Class Proceedings Act, 1992.

The plaintiffs sought to file material, conduct written interrogatories, or summons witnesses to explore why other defendants took no position on the motion.

The court denied the plaintiffs' request for interrogatories and cross-examinations, finding them unnecessary, irrelevant, and likely to breach privilege.

Exercising its case management powers under s. 12, the court directed the motion to proceed in writing without cross-examinations and set a timetable.

The defendants moved under Rule 25.11 to strike out portions of the plaintiff's defence to counterclaim, arguing the paragraphs improperly pleaded motive, referenced a failure to provide particulars, and disclosed a settlement offer.

The court dismissed the motion, finding that pleading motive is proper when relevant to an abuse of process defence.

The court also held that Rule 49.06(1) did not apply because the settlement offer was made in a discontinued action, and that settlement privilege had been waived.

The failure to provide particulars was also deemed relevant to the abuse of process defence.

The plaintiff brought a motion for summary judgment for possession of lands and payment on a defaulted vendor take-back mortgage.

The defendant opposed the motion, claiming equitable set-off based on alleged fraudulent misrepresentations regarding the property's condition.

The court found that the defendant was estopped from raising this defence because the plaintiff had previously obtained an unchallenged default judgment in Small Claims Court regarding a deposit for the same property.

Summary judgment was granted in favour of the plaintiff.

At a case conference, the Varone Parties sought compliance with a previous discovery plan order made by Master Muir, which the Concord Adex Parties had failed to meet.

The court ordered the Concord Adex Parties to serve their Affidavit of Documents within 10 days and varied the litigation timetable accordingly.

The court also provided directions on how to address an undetermined costs issue from the previous motion, as Master Muir had passed away before rendering his decision on costs.

The plaintiff brought a motion for answers to undertakings and refusals in the context of a construction lien action.

The motion was dismissed, and the parties submitted written arguments regarding costs.

The defendant, having been entirely successful, sought costs of $5,674.94 on a partial indemnity basis.

The court reviewed the factors under section 131 of the Courts of Justice Act and Rule 57.01, reduced the defendant's attendance fee, and fixed costs payable by the plaintiff to the defendant at $5,074.94.

This endorsement addresses the costs of a prior motion and application where the applicant, Mohamed Khatau (operating as MAK Enterprises), was largely unsuccessful in preventing the respondent, Apra Development Inc., from removing or selling property after failing to vacate premises as per a consent order.

Apra sought full indemnity costs, citing Khatau's breach of the consent order and the motion's lack of merit.

Khatau argued for partial indemnity, asserting his conduct was not "reprehensible, scandalous or outrageous" and that the motion was brought out of genuine concern for his livelihood.

The court awarded partial indemnity costs to Apra, finding Khatau's conduct did not warrant full indemnity, and reduced the requested fees due to potential duplication of counsel services and excessive hours for a non-complicated motion.

The successful self-represented plaintiff sought costs for nearly 800 hours spent preparing for and attending a trial where the defendants were found liable for conspiracy, slander, and intentional infliction of emotional distress.

The court applied the test from Fong v. Chan, which requires a self-represented litigant to demonstrate an opportunity cost by foregoing remunerative activity to be awarded costs.

Finding that the plaintiff failed to prove any lost income or opportunity cost, the court denied the claim for time spent and awarded only $1,000 in disbursements.

The plaintiff contractor sued the defendant homeowners for over $523,000 allegedly owing on a custom home construction project, claiming the project evolved without a fixed price.

The defendants argued they had an all-inclusive contract for $540,000, which they had fully paid, and counterclaimed for construction deficiencies.

The court found the plaintiff's principal deliberately lied, fabricated documents, and created false paper trails.

The court dismissed the plaintiff's claim entirely, ordered the construction lien discharged, and allowed the defendants' counterclaim for $65,112.86 to repair deficiencies.

The court determined costs following a motion where the respondent was substantially more successful than the applicant.

The applicant's monetary claims and request for the respondent to pass accounts were dismissed, as the applicant had no interest in the estate.

The court fixed costs at $7,500 inclusive of disbursements and HST, payable by the applicant to the respondent.

The plaintiff brought a motion to resolve outstanding issues regarding pre-judgment interest and costs following a settlement of a motor vehicle accident claim.

The court held that the recent amendment to the Insurance Act regarding pre-judgment interest was substantive and did not apply retroactively, meaning the 5% rate under Rule 53.10 applied.

The court also ordered the defendants to pay a portion of the costs the plaintiff incurred in a successful accident benefits arbitration, as the defendants benefited from the resulting deduction.

Finally, the court reduced the overall costs of the tort claim to ensure proportionality.

The moving party sought an order dismissing the plaintiffs’ claims and various crossclaims against a defendant business entity whose operator had not been located or served.

The third party opposed the motion, arguing that dismissal would effectively extinguish its contribution and indemnity claim because any new fourth party proceeding would likely be barred by the limitation period.

The court considered the interaction of Rules 28, 29.05, and 29.11 of the Rules of Civil Procedure and the principle in Rule 1.04 that the rules should be liberally construed to secure determination on the merits.

Although the third party had procedurally advanced its claim by crossclaim rather than fourth party claim, the court declined to eliminate what could be a potentially meritorious claim on purely procedural grounds.

The motion to dismiss the claims against the absent defendant was therefore refused.

The minor plaintiff was injured when struck by a tow truck near the proposed defendants' home.

The minor's father was appointed litigation guardian and sued the tow truck owner and driver, who counterclaimed for negligent supervision and third-partied the homeowners.

After the limitation period expired, the plaintiffs moved to add the homeowners as defendants.

The court dismissed the motion, finding the father knew the material facts on the day of the accident, and held that a litigation guardian's potential conflict of interest does not suspend the running of the limitation period.

The defendant brought a written request under Rule 2.1 to dismiss the plaintiff's professional negligence claim as frivolous, vexatious, or an abuse of process, arguing it was statute-barred and barred by res judicata.

The court dismissed the request, finding that the statement of claim stated clear and cogent claims for professional negligence.

The court noted that the application of the Limitations Act and doctrines of res judicata or issue estoppel are matters of evidence and not apparent on the face of the pleading.

The defendants requested the dismissal of the plaintiff's statement of claim under Rule 2.1.01 as frivolous, vexatious, or an abuse of process.

The court found the claim appeared patently inappropriate, as it was based on failures to respond to settlement offers and sought relief the court could not award.

The court directed the registrar to issue a notice to the plaintiff to provide written submissions as to why the action should not be dismissed, and stayed the action pending the outcome.

The plaintiffs brought a motion seeking authorization to enter the defendants’ property to remediate a failing retaining wall previously constructed pursuant to court orders arising from a nuisance dispute involving runoff and soil movement between adjacent properties.

Applying the injunctive relief framework from R.J.R. – MacDonald Inc. v. Canada (Att.-Gen.), the court found a serious issue regarding the plaintiffs’ right to prevent soil and debris flowing from the defendants’ property, irreparable harm if the wall collapsed, and that the balance of convenience favoured the plaintiffs.

Although the current structural failure was not directly caused by the defendants, the court held they remained ultimately responsible due to their prior alteration of land elevation and delays in remedying the problem.

The court authorized the plaintiffs to undertake remedial work and ordered the defendants to pay outstanding amounts owed under a prior order, with further provisions governing engineering oversight if warranty coverage failed.

Following a successful motion striking the plaintiff’s statement of claim as disclosing no reasonable cause of action and as an abuse of process, the court determined the appropriate costs award.

The successful defendant sought substantial indemnity costs based on the plaintiff’s litigation conduct, including extensive discovery questioning seeking privileged information and late service of voluminous materials.

The court held that while the plaintiff’s conduct increased the complexity and time required to prepare the motion, it did not rise to the level of reprehensible, scandalous, or outrageous behaviour necessary to justify substantial indemnity costs.

Applying the principles governing costs under s.131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, the court fixed costs on a partial indemnity basis.

Costs were awarded in the amount of $20,057 payable by the plaintiff to the successful defendant.

The moving defendant sought a declaration that a subcontractor’s construction lien was invalid for failure to preserve the lien in accordance with s. 34(2) of the Construction Lien Act after the claim for lien was delivered to a municipality’s deputy clerk rather than directly to the clerk.

The court held that the lien was properly preserved because the deputy clerk received the document within the statutory period and delivered it to the municipal clerk the same day.

The court further found that s. 228(2) of the Municipal Act, 2001 grants deputy clerks the powers and duties of the clerk, including receipt of lien claims.

A literal interpretation requiring service only on the clerk would create an impractical and absurd result where service would be impossible if the clerk were unavailable.

The motion seeking to invalidate the lien and return the security bond was dismissed.

Following a motion to strike portions of a statement of claim, the court determined the appropriate costs payable to individually named defendants whose claims had been struck as an abuse of process.

The plaintiff had asserted a $10 million claim against individual employees and directors of corporate defendants without adequately pleading separate acts or interests beyond their corporate roles.

The individual defendants sought substantial indemnity costs, arguing the claims constituted tactical harassment.

The court found the claims against the individuals lacked proper particulars but concluded the circumstances did not justify elevated costs.

Partial indemnity costs were instead fixed at reduced amounts reflecting duplication of work with corporate defendants’ counsel.