Civil Litigation - Defendant - SCJ

The moving parties sought recovery of amounts paid under protest to discharge mortgages after a failed maturity repayment and threatened receivership enforcement.

The court held that the lender's purported unilateral automatic renewal was ineffective because essential implied terms required timely decision and communication before renewal obligations fell due, failing which the renewal mechanism operated as an impermissible penalty under s. 8(1) of the Interest Act.

Renewal-related fees and associated interest exacted as a discharge condition were therefore recoverable.

The lender's alternative claim for three months' interest under s. 17 of the Mortgages Act was rejected because the payments arose in the context of enforcement and no surviving stand-alone claim existed after discharge.

Costs entitlement for the second segment was awarded to the moving parties, with scale and quantum left for later determination.

The plaintiff sought leave, after the action had been set down for trial, to bring motions to disqualify a defence medical expert for alleged conflict and to remove defence counsel for alleged improper disclosure.

Applying the post-set-down leave test, the court held there was no substantial or unexpected change in circumstances and no manifest injustice warranting further interlocutory motions.

The court found the moving party knew or ought to have known of the alleged conflict before consenting to the examination, and did not raise the issue in a timely manner.

The court further held the high threshold for removal of counsel was not met on the evidentiary record.

Leave to bring both proposed motions was denied.

Following cross-motions for summary judgment where the plaintiff was successful in recovering the residual proceeds of a power of sale, the court determined costs and prejudgment interest.

The court awarded the plaintiff costs of $45,515.37, noting the plaintiff beat its Rule 49 offer and the defendants unreasonably rejected a settlement proposal.

The court also awarded prejudgment interest at 2% from the date of the power of sale.

The parties attended a case conference to schedule a 40-day trial for a construction dispute commenced in 2015.

The court noted that there were ongoing interlocutory motions regarding productions and pleadings, and no expert reports had been delivered.

The court declined to fix a trial date, holding that an action with ongoing interlocutory matters is not ready for trial, and directed the parties to return to trial scheduling court once the outstanding matters and expert reports are completed.

The plaintiffs sought an adjournment of the defendants' motion to set aside ex parte orders for certificates of pending litigation and the appointment of a monitor.

The plaintiffs argued that the defendants had provided insufficient notice, served materials late, failed to serve the court-appointed monitor, and that cross-examinations of the defendants' affiants were necessary.

The court granted the adjournment, emphasizing that the defendants' delay in seeking a court date negated any claim of urgency, and that the plaintiffs had a right to cross-examine and the court required the monitor's input.

The decision underscored the importance of communication and cooperation in litigation and the need for proper justification when seeking to abridge procedural timelines.

The defendants sought leave to introduce surveillance evidence for substantive purposes in a jury trial arising from a motor vehicle accident.

The plaintiff opposed, arguing late disclosure and prejudice.

The court found the defendants breached disclosure obligations under Rules 30.09 and 33.06, particularly regarding waiver of privilege when the evidence was provided to a medical expert.

Applying Rule 53.08, the court determined that significant prejudice to the plaintiff, including impacts on settlement considerations and trial strategy, could not be cured by an adjournment.

Leave to use the surveillance evidence for substantive purposes was denied, though its use for impeachment was not challenged.

The applicants sought an order of mandamus to compel the Town of Georgina to approve a fill application and issue a permit.

The court reviewed the requirements for mandamus and the parties' positions on the standard of review and municipal discretion.

Ultimately, the court raised a jurisdictional issue, noting that under section 6(1) of the Judicial Review Procedure Act, applications for relief in the nature of mandamus must generally be brought in the Divisional Court.

The court granted the parties 60 days to make submissions on jurisdiction, failing which the application would be dismissed.

The third party insurer brought a motion under Rule 31.10 for leave to examine the plaintiffs as non-parties in each other's related actions regarding their observations of the other occupants during a motor vehicle accident.

The plaintiffs had previously refused these questions on the basis of relevance to their individual actions, and a prior motion to compel answers was dismissed with an invitation to bring the motion under Rule 31.10.

The court granted the motion, finding that the questions were relevant to damages and credibility, and that the plaintiffs' narrow approach to relevance frustrated the discovery process and the principle of proportionality.

The defendant brought a motion to compel answers to undertakings from examinations for discovery, and the court also determined costs for a previously dismissed security for costs motion.

The court ordered the plaintiff to produce a detailed ledger but dismissed the requests for further time sheets and bank records.

The plaintiff was awarded $5,000 in substantial indemnity costs for successfully defending the security for costs motion and for mixed success on the undertakings motion.

The defendant brought an urgent motion to compel the plaintiff to attend two independent medical examinations (physiatry and psychological) shortly before trial.

The plaintiff opposed the motion, arguing it was brought too late.

The court granted the request for the physiatry examination, finding that the plaintiff's late service of a physiatry expert report constituted a substantial change in circumstances warranting a responding report.

However, the court dismissed the request for a psychological examination, as the plaintiff had not served a psychological expert report and the defendant had long been aware of the psychological claims.

Costs of $3,000 were awarded to the plaintiff.

The plaintiff sought clarification of a previous order granting leave to register a Certificate of Pending Litigation (CPL) on 'Phase 2 Lots'.

The court clarified that the CPL should apply only to lots 112 to 150, as registering it on additional lots could jeopardize the defendants' financing arrangements.

Any further amounts owing to the plaintiff could be addressed through damages or a future application for additional security.

The plaintiff general contractor sued the defendant flooring subcontractor for breach of contract after the installed resilient flooring exhibited loose, lifting, and telegraphing tiles.

The plaintiff replaced the defective flooring and sought to recover the costs.

The defendant argued the issues were caused by excess moisture in the concrete slab, for which it had obtained a liability release.

The court found that the defendant failed to properly prepare the concrete substrate in accordance with the contract specifications, causing the delamination and telegraphing.

The plaintiff was awarded the replacement costs, less the amount claimed for profit.

This endorsement addresses the costs arising from the dismissal of the Plaintiff's motion for summary judgment.

The Defendants, as the successful parties on the summary judgment motion, sought costs in the range of $17,000-$19,000.

The Plaintiff argued for deferral of costs to the trial judge or a significantly lower award, citing that some defence materials would be used at trial and the limited value/complexity of the motion.

The court found the Defendants' costs claim reasonable, noting the Plaintiff's own higher costs outline for the original motion and the "pay-as-you-go" principle for interlocutory motions.

The court awarded the Defendants $12,000 in all-inclusive costs, plus an additional $500 for preparing the costs submissions.

The defendants brought a motion for summary judgment, arguing that the plaintiffs' causes of action were statute-barred due to a limitation period and that a mortgage commitment obtained by the plaintiff was unenforceable.

The court found that damages did not accrue until the plaintiffs obtained an unfulfillable mortgage commitment, placing the claim within the limitation period.

The court also rejected the argument that the mortgage commitment was unenforceable, stating that the defendants could not rely on their own default to make such a claim.

The motion for summary judgment was dismissed.

The plaintiff was involved in a motor vehicle accident and commenced tort and accident benefits actions.

After multiple changes in counsel and a capacity assessment confirming she was capable, the plaintiff became self-represented.

The case management judge attempted to appoint Amicus Curiae to assist the plaintiff at trial, but the relationship between the plaintiff and proposed counsel broke down.

The plaintiff insisted on representing herself and refused further assistance.

The court reluctantly discontinued efforts to appoint Amicus Curiae and scheduled the trial and outstanding motions.

In a medical malpractice action against two oral surgeons, the plaintiffs moved to remove one defendant's counsel based on a conflict arising from the firm's prior joint representation of both defendants.

Although the former client had earlier given a waiver, the court held that a later agreement that counsel would not act adversely to his immediate interests modified that consent.

Applying the duty of loyalty to former and current clients, and emphasizing public confidence in the administration of justice, the court found it would be difficult if not impossible to conduct the trial without a substantial risk of adversity, compromised process, or mistrial.

The motion was granted and counsel was removed, with new counsel to be retained and a new trial date fixed.

The defendant brought a motion to set aside the noting of pleadings closed in a motor vehicle accident subrogated claim brought by an insurer under s. 258(1) of the Insurance Act.

The court considered whether the defendant had been properly served with the statement of claim and whether an arguable defence existed.

Evidence showed the claim had been left with a person who no longer resided in the same household as the defendant and mailed to an address that was not his place of residence, contrary to Rule 16.03(5) of the Rules of Civil Procedure.

The court found that valid service had never been effected and that denying the defendant the opportunity to defend would breach natural justice given the size of the judgment and the existence of a potential defence.

The noting in default was set aside and the defendant was granted leave to deliver a statement of defence.

A homeowner sued a contractor for a refund of the contract price after a lakeside dock constructed under a five‑year workmanship and materials warranty became uneven after two winters.

The contractor argued the damage was caused by extraordinary ice and weather conditions rather than defective construction and counterclaimed for defamation based on threatening emails and alleged reputational harm.

The court found the precise physical cause of the uplift uncertain but concluded the dock’s premature failure, absent a satisfactory exculpatory explanation, entitled the plaintiff to damages.

However, the plaintiff failed to mitigate losses by investigating repair options, and the evidence established the dock was repairable at modest cost.

The court awarded damages limited to the estimated repair cost and dismissed the defendant’s defamation counterclaim for lack of proof of publication or actual loss.

The self-represented plaintiff sued a psychiatrist for medical malpractice and lack of informed consent regarding medication side effects.

The defendant moved for summary judgment and a vexatious litigant order.

The court granted summary judgment, dismissing the action because the plaintiff failed to adduce any expert medical evidence to support her claims, which is required in medical malpractice cases.

The court also declared the plaintiff a vexatious litigant under section 140 of the Courts of Justice Act, noting her history of persistently instituting unsuccessful and abandoned proceedings against various healthcare providers without reasonable grounds.

The defendants brought a motion to strike out portions of the plaintiff's statement of claim alleging negligent investigation, malicious prosecution, and Charter breaches, arguing they were barred by issue estoppel following a police disciplinary hearing.

The court found that while the elements of issue estoppel were met, it would be unjust to apply the doctrine because the disciplinary hearing used a higher 'clear and convincing evidence' standard of proof compared to the civil balance of probabilities standard.

The motion to strike was dismissed, but the action was transferred to Stratford on consent.