Civil Litigation - Defendant - SCJ

The defendants (other than Johnson Controls) brought a motion to stay the action based on alleged failure by the plaintiff and Johnson Controls to immediately disclose a settlement agreement (the Pro Rata Agreement) that they claimed changed the litigation landscape.

The court dismissed the motion, finding that timely disclosure was made in the context of this particular case and that the agreement did not change the litigation landscape because the action had been effectively stayed and the dispute was being pursued in arbitration.

The court also addressed the application of new Rule 49.14 regarding partial settlement disclosure and fashioned appropriate remedies.

The defendant insurer brought a motion for summary judgment to dismiss the plaintiff's claim based on contractual releases and statutory limitations periods.

The plaintiff, self-represented, claimed damages for inadequate insurance coverage, contractor negligence, lost income, and emotional distress arising from a water loss claim.

The court found that while portions of the claim were covered by the releases or barred by limitations, other aspects concerning alleged damage caused by the insurer's retained contractor were not.

The court declined to grant partial summary judgment, finding it inappropriate to bifurcate the issues and determining that all matters should be resolved together at trial.

The applicant mother and respondent father, a common-law couple with one child, separated in 2015.

This trial addressed remaining issues after nine years of litigation, including income imputation for the applicant, child support, division of section 7 expenses, and therapy for the child and family.

The court imputed an income of $72,072 to the applicant, determined child support based on a set-off method, ordered section 7 expenses to be shared proportionate to individual incomes, and mandated family therapy to improve co-parenting and support the child.

The applicant's abandoned relocation claim was formally dismissed.

The Plaintiffs brought a motion to correct misnomers and add several corporate entities as defendants in an action stemming from a fire.

The motion sought to correct the name of "Cooper Lighting Internacional, S. de R.L. de C.V." to "Cooper Lighting de Mexico S. de R.L. de C.V." and to add "Cooper Lighting LLC", "Cooper Lighting Canada Limited", "SLP Lighting LLC", "Koller Enterprises", and "David Koller".

Applying the principles of misnomer from Loy-English, the court found that the "litigation finger" pointed at the Cooper Lighting entities and SLP Lighting LLC, allowing their addition/correction despite delays.

However, the requests to add Koller Enterprises and David Koller were dismissed due to insufficient evidence of their direct involvement as manufacturers or distributors.

The court exercised its discretion to grant the amendments, noting the lack of non-compensable prejudice to the proposed defendants and shared responsibility for litigation delays.

This decision addresses the costs arising from the dismissal of Mr. Fiorini's application, which sought an interest in a property but was found to be devoid of credible evidence.

The respondents sought substantial indemnity costs, arguing the application was meritless, abusive, and retaliatory.

The court agreed, finding Mr. Fiorini's conduct reprehensible and deserving of sanction, including harassment and unnecessarily lengthening proceedings.

While the respondents requested $80,000, the court awarded $70,000 on a substantial indemnity basis, adjusting for an element of "over-lawyering" by the respondents in having two lawyers attend certain proceedings.

This case involved a construction lien action and counterclaim concerning renovation work at York University.

Monalt Environmental Inc. (subcontractor) sued BDA Inc. (contractor) for unpaid work, while BDA counterclaimed for completion costs, alleging Monalt failed to complete the full scope of demolition work, specifically stairs and a ceiling slab.

The court found that Monalt's contractual scope of work did include the disputed demolition.

Monalt breached the contract by refusing to complete this work and suspending operations without a contractual basis for demanding payment.

BDA was justified in withholding payment.

The court assessed BDA's proven damages for completion costs and set them off entirely against Monalt's claim for unpaid amounts, resulting in no net amount owing to Monalt and no judgment for either party on their respective claims.

The plaintiff brought a motion to prohibit Dr. John Bohnen from testifying as an expert for the defence, alleging issues with his expert reports (unsigned, invalid contact information) and potential bias due to his past relationship with a defendant and frequent retention by the defence law firm.

The court applied the two-stage test for expert admissibility from *White Burgess* and *Mohan*.

The judge found that the initial failure to sign a report was not a material omission, the contact information provided was valid, and the expert's professional relationships did not demonstrate a lack of independence sufficient to disqualify him.

The motion was dismissed, with the court concluding that the issues raised by the plaintiff pertained to the weight of the expert's evidence rather than its admissibility.

The applicant father initiated a parenting review seeking joint parental decision-making, week-about equal parenting time for their 13-year-old son J.K., J.K.'s enrollment in a Brampton high school, international travel permission, and modification of a restraining order.

The respondent mother opposed these requests, seeking to preserve her exclusive decision-making authority, maintain the current parenting schedule, and enroll J.K. in a Toronto school.

The court, conducting a fresh inquiry into J.K.'s best interests under the Divorce Act, found the father had made efforts to address past family violence and parental alienation but still exhibited problematic behaviors undermining the mother's parenting.

The court increased the father's parenting time incrementally but denied his request for joint decision-making and J.K.'s transfer to a Brampton school, citing the need for stability and the mother's demonstrated child-focused decision-making.

Travel restrictions were partially lifted for the father (within Ontario) and fully for the mother.

The Respondent Mother brought an urgent motion in response to the Durham Children’s Aid Society's decision to suspend all face-to-face access at its Supervised Access Centre due to the COVID-19 crisis.

The court found the matter urgent, emphasizing the need to balance child protection with maintaining parental relationships during the pandemic, and ordered a teleconference to establish an appropriate access regimen.

The plaintiff, Crescent Hotels and Resorts Canada Company, brought a motion for summary judgment against the defendant owner for an early termination fee and outstanding expenses under a Hotel Management Agreement (HMA).

The owner alleged termination for cause due to various acts of mismanagement and breaches by the plaintiff.

The court found no evidentiary support for the owner's allegations of cause and determined that the owner failed to provide proper notice of any alleged defaults as required by the HMA.

Consequently, the court granted summary judgment to the plaintiff for the early termination fee and all outstanding expenses, totaling $1,026,652.44 plus pre-judgment interest and costs.

The plaintiff contractor, RPC Construction Ltd., claimed a construction lien and damages for breach of contract against the defendant owners, Zhiyi Zhou and Li Na Wu, for renovation work on their property.

The defendants denied the claim and counterclaimed for set-off and damages.

The court found that the defendants improperly terminated the contract, entitling RPC to the remainder of the contract price and unpaid extras.

The court dismissed the defendants' counterclaim, largely due to issues of credibility, lack of corroboration, and the doctrine preventing owners from back-charging for deficiencies when they wrongfully terminate a contract and deprive the contractor of the opportunity to correct them.

The defendant George Pappas moved to set aside a default judgment obtained by the plaintiff Lucy Romero, arguing irregularity in the judgment and offering an explanation for default.

The court found a clear irregularity as the judgment ordered Pappas to pay a sum not requested in the statement of claim against him.

The court also considered the test for setting aside default judgment, finding Pappas's explanation plausible and an arguable defence, with no prejudice to the plaintiff.

The motion to set aside the default judgment against Pappas was granted, and all enforcement proceedings against him were stayed.

This decision addresses the issue of costs following a successful summary judgment motion by the defendant Williams-Litigation Lawyers.

The defendant sought costs on a substantial or partial indemnity basis, while the plaintiffs proposed a lower partial indemnity amount.

The court awarded costs to Williams-Litigation Lawyers on a partial indemnity basis, considering factors such as the defendant's success, the significant damages claimed by the plaintiffs, the narrow but important legal issue, counsel's experience, and efforts to resolve the dispute without costs.

The court found the hours claimed by the defendant's counsel to be higher than what the plaintiffs ought to have expected given the non-complex nature of the proceedings.

The plaintiffs brought a motion seeking leave to compel production of information from an insurance broker and to examine a representative for discovery, in anticipation of a summary judgment motion concerning insurance coverage.

The motion was brought after the trial record had been delivered, necessitating leave of the court under Rule 48.

The court reviewed the conflicting judicial interpretations of the test for granting such leave, ultimately reaffirming the "substantial or unexpected change in circumstances" test, where a refusal would be "manifestly unjust," and rejecting the broader "interests of justice" test as a separate ground.

Given the plaintiffs' long-standing knowledge of the insurance coverage issues, the significant delay in bringing the motion, and the absence of insurance coverage issues in the third party's pleadings, the court found no substantial or unexpected change in circumstances.

Consequently, leave was denied, and the plaintiffs' motion was dismissed.

The appellant sought to appeal a decision dismissing her claim against multiple respondents as frivolous, vexatious, and an abuse of process.

The court, on its own initiative under Rule 2.1.01(3), considered dismissing the appeal on the same grounds.

The appellant's claim was for an amount exceeding the Divisional Court's jurisdiction, and she had been advised of this lack of jurisdiction but continued to pursue the appeal in the wrong forum.

The court found the appeal to be an abuse of process and dismissed it without an order as to costs.

The Aubrey Dan Family Trust (ADFT) brought a summary judgment motion to allow its income tax appeal for the 2007 taxation year and vacate a reassessment issued by the Minister of Finance.

The motion focused on whether the reassessment was issued outside the statutory limitation period and, if so, whether the limitation period was properly waived.

The court found that the original notice of assessment triggered the normal reassessment period, which expired before the reassessment was issued.

However, the court also found that the T2029 waiver form signed by ADFT was valid under the Ontario Income Tax Act, deeming it a prescribed form and thus effectively waiving the limitation period.

Consequently, ADFT's motion for summary judgment was dismissed.

The plaintiff framing contractor brought three construction lien actions against the defendants arising from a joint venture to purchase, sever, and redevelop residential lots.

The court found that the plaintiff was not an 'owner' under the Construction Lien Act and was owed $70,400 for its contract scope of work plus $21,824.43 for conceded extras.

However, the court dismissed the plaintiff's claims for site supervision and other extras, finding they were part of the plaintiff's principal's obligations to the joint venture.

The court also held that the plaintiff's lien rights had expired before registration, as the work allegedly done within the 45-day period was not performed by the plaintiff.

The claims for lien were discharged and judgment was granted for breach of contract.

The applicant corporation sought the return of funds seized from its bank account by a secured creditor, arguing that the seizure was invalid under a General Security Agreement and the Personal Property Security Act.

The applicant alleged that the wrong security agreement had initially been served, that the GSA was ambiguous and unenforceable, that it was not in default, that notice requirements under the PPSA were breached, and that the warrant authorized seizure of the account rather than the funds.

The court rejected each argument, holding that the GSA was valid and enforceable, the applicant was in default through its guarantee of the borrower’s indebtedness, and the secured creditor’s enforcement complied with the PPSA.

The court also held that funds in the account constituted proceeds that could be directly seized under the statute.

The application for return of the seized monies was dismissed.

The defendant sought costs following success on motions heard December 23, 2011.

The court found the plaintiff had brought a meritless contempt motion and failed to diligently advance the litigation.

Given the defendant’s complete success and the conduct of the moving party, the court awarded costs on a substantial-indemnity basis.

Costs were fixed in the amount of $15,377.41 all-inclusive.

Following a successful trial in which the plaintiff established that a property transfer between a debtor and her parents constituted a fraudulent conveyance designed to defeat a creditor, the plaintiff sought costs on a substantial indemnity basis.

The court held that the defendant’s litigation conduct, including implausible testimony denying the fraudulent nature of the conveyance, justified elevated costs.

The court also considered whether costs could be awarded against non-parties who had funded and effectively controlled the litigation.

Applying principles governing non‑party costs liability, the court found that the parents were the real parties behind the defence and that it was just to hold them responsible.

Costs of $60,000 inclusive of disbursements and HST were awarded against the defendant and the non‑party parents.