Civil Litigation - Defendant - SCJ

The plaintiff brought a motion to strike the defendant's defence due to the defendant's ongoing breaches of court orders and obligations under the Rules of Civil Procedure.

The breaches included failure to comply with court-ordered timetables, serve an affidavit of documents, attend an examination for discovery, and pay costs orders.

The defendant, self-represented, asserted a lack of understanding but failed to demonstrate any reasonable efforts to investigate or comply with his obligations.

The court found the defendant's non-compliance deliberate and unexcused, and granted the motion, striking the defence with prejudice.

The defendants brought a motion to examine the plaintiff's former solicitor for discovery and for production of documents from her former law firm to support a Limitations Act defence.

The defendants sought to prove the plaintiff knew of his entitlement under his grandfather's will before February 28, 2016.

The court dismissed the motion as premature, finding that the defendants had not first made a diligent effort to obtain the targeted information from TD Canada Trust, the entity that administered the trust funds, as required by Rule 31.10(2) of the Rules of Civil Procedure.

The defendants were successful in having the plaintiff's Statement of Claim struck without leave to amend.

The two groups of defendants sought costs totaling over $41,000.

The court found that the plaintiff could not reasonably have anticipated such a high costs award at the pleadings stage.

The court declined to award substantial indemnity costs, finding no conduct by the plaintiff to justify it.

The court fixed partial indemnity costs at $10,000 for each group of defendants, for a total of $20,000.

Following the death of their mother, two sisters engaged in protracted and acrimonious estate litigation involving allegations of fraud and undue influence.

The parties eventually settled all substantive issues at mediation, agreeing to divide the estate equally, but left the issue of costs to be determined by the court.

The court found that the plaintiff had unreasonably escalated the litigation and ignored reasonable settlement offers.

Finding exceptional circumstances that justified a costs award despite the settlement, the court ordered the plaintiff to pay $75,000 in costs to the defendant.

The plaintiff employee was terminated without cause after 8.5 months of employment.

The defendant employer argued that a termination clause in the employment agreement limited the plaintiff's entitlements to the statutory minimums under the Employment Standards Act.

On cross-motions for summary judgment, the court found the termination clause ambiguous as it merely stated the employer would comply with the legislation without explicitly displacing common law rights.

Applying the principle of contra proferentem, the court interpreted the clause against the employer and awarded the plaintiff 4 months' pay in lieu of reasonable notice, plus one month of pension contributions.

Following a finding of oppression, the court determined the appropriate process and parameters for valuing the respondent's shares in a real estate development corporation to effect a buyout by the applicant.

The court declined to appoint separate valuators, instead directing a reference to a master to determine the share price.

The court set the valuation date as the date of the oppression decision, rather than an earlier date proposed by the applicant, and provided guidance on specific adjustments including equalization of costs and the treatment of the property's lapsed site plan approval.

The applicants, unit owners in a condominium, challenged the corporation's decision to enter into a new bulk services agreement for television and internet.

They argued the corporation lacked jurisdiction to charge the costs as common expenses without an opt-out, failed to comply with notice and approval requirements under s. 97 of the Condominium Act, and acted oppressively by ignoring a requisition for an owners' meeting.

The court dismissed the application, finding the corporation had jurisdiction under its declaration and by-laws, the incremental cost of the new internet service did not trigger the s. 97 thresholds, and the applicants failed to prove oppressive conduct.

The defendant brought a motion for security for costs against the foreign corporate plaintiffs.

The plaintiffs conceded entitlement to security for costs, leaving only the quantum in dispute.

The court considered the parties' conduct, the merits of the claim, and the applicable tariff rates, ultimately ordering the plaintiffs to post $33,000 as security for costs up to and including mediation.

Following a jury verdict, the plaintiff brought a motion for judgment to determine the pre-judgment interest (PJI) rate applicable to general non-pecuniary damages.

The plaintiff argued for a 5% PJI rate, asserting that amendments to the Insurance Act effective January 1, 2015, were not retroactive as PJI is a matter of substantive law, relying on the Divisional Court's decision in Carr v. Modi.

The defendant conceded the court was bound by Carr, despite believing the case law was wrongly decided, given a pending Court of Appeal decision in El-Khodr v. Lackie.

The parties agreed to issue judgment with a 5% PJI rate, with a mechanism to revisit the calculation if the El-Khodr appeal decision impacted it.

The court ordered judgment for the plaintiff in the agreed amount.

The applicant sought child and spousal support, and interim disbursements for legal fees and a business valuator, while the respondent cross-motioned for access and Office of the Children's Lawyer involvement.

The court imputed an annual income of $150,000 to the respondent for support purposes, finding a pattern of non-disclosure, lavish lifestyle, and complex financial arrangements.

The court ordered retroactive child and spousal support, and interim disbursements for the applicant.

The respondent's motions for access and OCL involvement were dismissed due to serious concerns about his mental health, violent history, and lack of insight.

The moving defendant sought to set aside an undefended trial judgment in a malicious prosecution action under Rule 52.01(3), asserting inadvertence, a viable defence, and lack of prejudice.

The court held that the defendant had actual or effective notice of the trial through repeated mailings and personal service, and that he deliberately chose not to open or respond to documents from opposing counsel.

The court rejected late-filed evidence intended to undermine personal service and gave little weight to a physician's note tendered to explain the defendant's psychological state.

Finding deliberate non-attendance, uncompensable prejudice, and an abuse of process, the court declined to exercise its discretion to set aside the judgment.

Following a jury trial in a motor vehicle personal injury action where the plaintiff recovered no damages and the action was dismissed, the court determined the defendants’ entitlement to costs.

The defendants sought significant costs awards, including substantial indemnity costs based on an unaccepted settlement offer.

The court held that Rule 49.10 did not apply because the plaintiff obtained no judgment.

Applying s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court confirmed that successful parties are generally entitled to costs but emphasized that awards must be fair and reasonable.

The requested amounts were found excessive, and the court fixed reduced partial indemnity costs payable by the plaintiff to each defendant.

Following a jury verdict in a defamation and intrusion upon seclusion action, the plaintiffs brought a motion seeking a Sanderson order requiring the unsuccessful defendant to pay the costs previously awarded to two successful co-defendants who had been dismissed on summary judgment.

The court considered the governing test from Moore (Litigation Guardian of) v. Wienecke and found the threshold requirement was not met because the plaintiffs had no evidentiary basis to join the successful defendants when the action was commenced.

The court further held that even if the threshold were met, a Sanderson order would not be appropriate given the risk that the unsuccessful defendant lacked the means to satisfy the costs award.

However, relying on prior findings that the unsuccessful defendant had ensnared the successful defendants in the litigation, the court granted a Bullock order permitting the plaintiffs to recover from that defendant the costs previously awarded to the successful defendants.

Costs of the motion were awarded against the plaintiffs.

Following success on a summary judgment motion in a fraudulent conveyance action, the self-represented plaintiff sought costs for the litigation.

The court reviewed principles governing costs awards to self-represented litigants, noting that such parties are not compensated as though they retained counsel but may recover a reasonable allowance for proven loss of opportunity cost.

Evidence demonstrated that the plaintiff’s professional income declined due to time spent conducting the litigation.

Applying fairness and proportionality principles, the court awarded a reduced allowance for the plaintiff’s time plus supported disbursements.

The plaintiff brought a defamation action arising from an internet article that repeated and endorsed allegations originally published in a national newspaper accusing the plaintiff of fabricating racist material to support human rights complaints.

The defendant republished the article on a website and added commentary portraying the plaintiff as corrupt and engaged in “phony-racism.” The court found the publication clearly defamatory and rejected the defences of fair comment, qualified privilege, and responsible communication, holding that the article primarily asserted defamatory facts and that internet publication to the world was not an occasion of privilege.

The defendant had relied on a previously retracted newspaper article without conducting further verification.

General damages of $10,000 were awarded, and the defendant’s posted retraction and apology were found inadequate to reduce the damages.

The defendants moved to strike two paragraphs of a statement of claim in an action seeking Charter damages arising from an alleged unreasonable strip search following arrest.

The plaintiff alleged the impugned paragraphs were material to a s. 15 equality claim because they connected her individual treatment to broader allegedly disproportionate strip-search practices affecting Aboriginal persons.

The court held that the paragraphs pleaded relevant material facts, did not constitute an improper disguised class action, and were not scandalous, frivolous, or vexatious.

The motion was dismissed, with costs submissions deferred if not agreed.

Three secured lenders brought competing applications to determine mortgage priorities after a first mortgage was fraudulently discharged from title and later mortgages were advanced in reliance on the register.

The court found the homeowners were responsible for the fraudulent discharge and concealed the prior debt while continuing payments to the original lender to avoid detection.

Applying the deferred indefeasibility framework under the Land Titles Act and the Court of Appeal's decision in Lawrence, the court held the later mortgagees took from fraudsters and were intermediate encumbrancers.

The original mortgage retained first priority, the later bank mortgage ranked second, and the subsequent private mortgage ranked third.

The register was ordered rectified and no costs were awarded.

The plaintiff moved to restore an action to the trial list after it had been struck due to outstanding undertakings and incomplete trial readiness requirements.

The court applied the test requiring a reasonable explanation for delay and absence of non-compensable prejudice to the defendant.

Although some delay involved difficulties obtaining documents and funding an expert report, the court found the delay largely attributable to the plaintiff and not reasonably explained.

The court also accepted that the long passage of time since the underlying events raised concerns about fading witness recollection.

The motion to restore the action to the trial list was dismissed and costs were awarded to the defendant.

Following a nine-day trial where the defendants to the counterclaim successfully defended against allegations of exacerbating flooding on the plaintiffs to the counterclaim's property, the successful parties sought costs.

The court found that the plaintiffs to the counterclaim had unreasonably protracted the litigation and failed to accept a formal offer to settle.

Applying Rule 49, the court awarded the successful parties their costs on a partial indemnity basis up to the date of the offer and on a substantial indemnity basis thereafter, totaling $269,025.59.

A defendant brought a motion under Rule 21.01(3)(d) of the Rules of Civil Procedure seeking dismissal of a claim as frivolous, vexatious, or an abuse of process arising from allegations of a fraudulent conveyance.

The motion was brought nearly seven years after the defendant was added to the action and after other parties had settled.

The court held that such relief should only be granted in the clearest of cases and that a Rule 21 motion is not a substitute for summary judgment.

Given the existence of significant factual and legal disputes regarding the alleged fraudulent transfer and consideration for the property, the court found the claim was not plainly without merit.

The motion was dismissed.