Civil Litigation - Defendant - SCJ

A motion by a real estate brokerage to dismiss and strike a counterclaim brought against it by a self-represented defendant.

The defendant alleged that the brokerage was vicariously liable for the conduct of one of its agents in a private real estate transaction.

The court found that the agent had cancelled the listing agreements and thereafter conducted the sale and lease transactions in her personal capacity, without the brokerage's involvement or knowledge.

The court granted the motion, dismissing the counterclaim on the basis that there was no genuine issue requiring a trial, that the pleading disclosed no reasonable cause of action, and that the counterclaim was frivolous, vexatious, and an abuse of process.

The applicants sought approval of a settlement agreement regarding the validity and distribution of the deceased's estate.

The parties agreed that the 2017 will was valid but proposed a distribution that deviated from its terms.

The Office of the Children's Lawyer filed a rejection of settlement on behalf of a minor grandchild who had a potential interest under an earlier will.

The court approved the settlement despite the rejection, finding that Rule 75.07.1 does not grant a non-party absolute veto power over settlement approval, but rather requires the court to consider the non-party's rights when assessing whether the settlement is fair and reasonable.

This supplementary endorsement addresses a request from JTI-Macdonald Corp. regarding the adequacy of notice elements in the Claims Procedure Order within the ongoing Companies' Creditors Arrangement Act (CCAA) proceedings.

The court confirmed its satisfaction that the notice elements in the Claims Procedure Orders are reasonable in the circumstances, addressing an oversight from previous submissions.

The plaintiff, John Kozak, brought an interim preservation of property motion seeking to restrain the defendant, Rebecca Russo, from dissipating shares of SolarBank Corporation and related proceeds, which Kozak claimed were held in trust for him.

Russo, self-represented and studying abroad, did not appear but had requested an adjournment.

The court validated service and denied the adjournment due to a clear risk of asset dissipation.

Applying Rules 45.01 and 45.02, the court found a serious issue to be tried and that the balance of convenience favored granting the order, given the Declaration of Trust, Russo's stated intent to move assets, and her presence in a foreign jurisdiction.

The motion was granted, and costs were awarded to the plaintiff.

The defendant Scottish & York Insurance Co. Limited brought a motion under Rule 26.01 to amend its statement of defence and, if necessary, under Rule 51.05 to withdraw an admission.

The plaintiff, Gordon Djuric, opposed, arguing the amendments constituted a withdrawal of an admission regarding OPCF 44R underinsured motorist coverage and would cause non-compensable prejudice, particularly affecting his accident benefits settlement.

The court found that the original statement of defence did not contain an unambiguous admission of OPCF 44R coverage.

Furthermore, the court determined that the alleged prejudice (denial of benefits the plaintiff may not have been entitled to) was not the type of non-compensable prejudice contemplated by Rule 26.01.

Leave to amend the statement of defence was granted, and costs were awarded to Scottish & York.

The applicants, a tenant and its sole shareholder, sought reinstatement of their commercial lease after the respondent landlord locked them out.

The landlord alleged breaches related to staff conduct (public intoxication, nuisance) and purported to terminate the lease.

The court found that the landlord failed to comply with the mandatory notice requirements under section 19(2) of the Commercial Tenancies Act, rendering the termination unlawful.

Alternatively, the court would have granted relief from forfeiture under section 20(1) of the Act due to the disproportionate nature of the termination, the non-wilful breach, and the landlord's heavy-handed conduct.

The lease was declared to be in full force and effect, and the applicants were awarded damages equivalent to four months' rent.

The applicant sought to suspend the appointment of the primary respondent as Estate Trustee and appoint an Estate Trustee During Litigation (ETDL), alleging conflicts of interest and mismanagement regarding the sale of an estate-owned property.

The primary respondent, supported by the co-respondent, opposed the application, arguing her actions were in the best interest of the estate and that the applicant was in conflict.

The court dismissed the application for an ETDL, finding no clear evidence to warrant the removal of the Estate Trustee, and instead ordered the Estate Trustee to proceed with listing the property for sale on the open market and to commence an application to pass her accounts.

The applicant mother sought to change the child support provisions of a separation agreement, alleging a material change in the respondent father's income due to undeclared cash, improper business deductions, and other sources.

The separation agreement had fixed the father's "estimated" income at $70,000.

The court found that the applicant failed to discharge her onus to prove a material change in the respondent's income for the years 2016-2021, except for a one-time top-up payment for 2020.

The court dismissed the application to change the separation agreement, emphasizing that the starting point for assessing actual income is line 150 of the tax return, and rejecting most of the applicant's claims regarding imputed income from cash, lifestyle, and business deductions.

The applicant father sought a temporary variation of a final parenting order, requesting primary residence and decision-making authority for the children, citing the respondent mother's manipulative behavior, false allegations, and obstruction of the children's therapeutic services.

The respondent mother opposed, bringing a cross-motion for OCL involvement.

The court found a material change in circumstances and that the existing equal time-sharing arrangement was intolerable due to the high conflict and the children's deteriorating emotional and developmental issues.

The court granted the father primary residence and decision-making authority, finding the mother's lack of insight and self-centered decisions detrimental to the children's best interests, and declined OCL involvement.

This trial decision addresses a complex dispute arising from the sale of a business, involving a promissory note default, failure to assume a lease, and subsequent seizure of assets.

The vendor (plaintiffs) sought to recover a deficit, while the purchaser (defendants) counterclaimed for unlawful seizure and damages.

The court found the purchaser in default of the promissory note and the lease assumption.

It determined that notice prior to seizure was not required under the Personal Property Security Act's exception for collateral customarily sold on a recognized market, and that the vendor's actions, while dishonourable, did not breach the duty of honest performance.

Damages were assessed, adjusting the plaintiffs' claim by reducing excessive storage fees and crediting the defendant for an undervalued asset sale.

This decision addresses the costs arising from a motion to set aside a default judgment.

The plaintiffs sought costs on a substantial indemnity basis, while the defendants argued for partial indemnity.

The court found no conduct warranting a punitive costs award and therefore awarded costs on a partial indemnity basis, reducing the plaintiffs' claim for redundancies.

The final award was $21,000, all inclusive.

The plaintiff vendor brought a motion for summary judgment seeking specific performance of an agreement of purchase and sale for a custom-built home after the defendant purchaser failed to close.

The purchaser argued the agreement was complex, he lacked English skills, and his agent had a conflict of interest, but provided no legal basis to void the contract.

The court found no genuine issue for trial, upheld the agreement, and ordered specific performance, noting the home's customized features and the difficulty of assessing damages due to unsold inventory.

M.S. Hardwood brought a motion for substantial indemnity costs against Gaydon Contractors Ltd. following Gaydon's discontinuance of a Fourth Party Claim.

Gaydon had issued the Fourth Party Claim against M.S. Hardwood based on a cursory mention of flooring deficiencies in the Plaintiff's Statement of Claim, despite earlier discoveries indicating no such issues.

Gaydon also brought a cross-motion seeking to recover these costs from the Plaintiff and Defendants.

The court granted M.S. Hardwood's motion, finding Gaydon failed to conduct due diligence and that its claim was frivolous and vexatious.

Gaydon's cross-motion was dismissed, with the court noting minimal culpability for the Plaintiff and none for the Defendants.

The court also commented on the disproportionate costs incurred by all parties in arguing these motions.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' environmental contamination action on the basis that it was commenced after the expiry of the two-year limitation period.

The plaintiffs argued that the limitation period was tolled under s. 5(1)(a)(iv) of the Limitations Act because the ongoing involvement of the Ministry of the Environment constituted an alternative process, making a court proceeding inappropriate.

The court held that the Ministry's involvement did not toll the limitation period because it was not an alternative dispute resolution process with a reasonably ascertainable end date, and the plaintiffs' decision to delay litigation was tactical.

The motion for summary judgment was granted and the action was dismissed.

The plaintiff brought a motion to amend the original title of proceedings in a statement of claim, issued in 2015 against "John Doe and Jane Doe," to reflect the correct name of the defendant driver, Melissa Gilmour.

The accident occurred in 2013, and the plaintiff's counsel failed to properly identify the defendant and issue the claim correctly within the limitation period.

The court considered the principles of misnomer under Rules 26.01 and 5.04(2) of the Rules of Civil Procedure, emphasizing the overarching goal of resolving cases on their merits.

Despite the plaintiff's counsel's negligence and significant delay, the court found that the proposed defendant's insurer had early notice of the accident and that the "litigating finger" pointed at the intended defendant.

The motion was granted, allowing the substitution of Melissa Gilmour for "Jane Doe." Costs of $2500 were awarded against the plaintiff's counsel's firm, not the plaintiff, due to their errors.

This costs endorsement followed motions where the applicant sought to change a spousal support order and the respondent sought to strike the applicant's motion and other relief.

The court largely dismissed both the respondent's strike-out motion and the applicant's interim relief motion.

Neither party met their settlement offers.

The respondent sought costs, arguing partial success, but the court found her strike-out motion largely ill-advised and unnecessary, failing to resolve issues or significantly advance the matter.

Consequently, no costs were awarded to either party.

The applicant, Angela Paulsen, brought a motion to determine the date of separation and to extend the limitation period for her property equalization claim, including pension division.

The court found the date of separation to be September 1, 2008, based on the parties' disclosure to their children.

The court granted the extension of the limitation period under s. 2(8) of the Family Law Act, finding that the delay was incurred in good faith due to blameless ignorance regarding pension divisibility, and that the respondent, Keith Paulsen, would not suffer substantial prejudice.

The appellant filed an appeal from a final order concerning child custody and access.

After five months, the appellant had made no progress in perfecting the appeal, including failing to order transcripts, citing denial of Legal Aid and difficulty securing pro bono counsel.

The court dismissed the appeal due to the lack of progress, the need for stability for the children, and the uninspiring nature of the grounds of appeal, noting Legal Aid's decision not to intervene.

No costs were awarded.

Following a jury trial arising from a motor vehicle collision involving a public transit bus, the jury found that although liability was admitted, the plaintiff failed to prove the accident caused compensable injury.

After a subsequent hearing addressing responsibility for trial costs, the estate and former counsel were ordered to pay certain costs to the transit authority.

The present endorsement addressed a further request by the estate trustee, in her personal capacity, seeking substantial costs for the costs hearing itself.

The court held that proceedings determining costs rarely justify an additional award of costs absent unusual circumstances and found the amount claimed disproportionate to a one‑day hearing.

The court concluded that the ordinary principle that costs proceedings do not generate further costs should apply.

In a proposed class action concerning alleged misrepresentations in a vending machine distributorship program, the plaintiffs sought leave to file an additional affidavit after cross-examinations had already been completed on a pending summary judgment motion.

The evidence came from a principal of a co-defendant who had entered into a cooperation agreement with the plaintiffs and purported to provide evidence supporting the existence of a partnership or franchisor’s associate relationship.

The court considered Rule 39.03(2) of the Rules of Civil Procedure, which restricts the filing of additional affidavits after cross-examinations without leave.

Although the court found the plaintiffs had not demonstrated that the evidence was previously unavailable and expressed concerns about the cooperation agreement and procedural fairness, it ultimately granted leave because the moving defendant would suffer no prejudice and preferred that the evidentiary record be complete.

Costs were awarded to the opposing party in any event of the cause.