Civil Litigation - Defendant - SCJ

The defendants brought a motion under Rule 5 of the Rules of Civil Procedure to remove all defendants except Diamond & Diamond Lawyers LLP from the action, or alternatively to stay the action against those defendants.

The court dismissed the motion, finding that the plaintiffs’ pleadings provided a basis for claims against the individual and professional corporation defendants, and that joinder was permissible under Rule 5.02(2)(c) due to doubt as to the proper party from whom relief may be obtained.

The court also found that the inclusion of these parties would not unduly complicate or delay the proceedings or cause undue prejudice.

The defendants brought a motion to vacate a certificate of pending litigation (CPL) registered against their property, arguing the plaintiff failed to prosecute the action with reasonable diligence.

The underlying action involved a claim of fraudulent conveyance to avoid a foreign judgment.

The court dismissed the motion, finding that the plaintiff had satisfactorily explained any litigation delay, had set the action down for trial, and that discharging the CPL would severely prejudice the plaintiff while the defendants showed no evidence of prejudice.

The plaintiffs moved for summary judgment seeking specific performance of an Agreement of Purchase and Sale for a cottage property.

The defendants failed to close the transaction, arguing the agreement was void due to unfulfilled conditions regarding severance under the Planning Act and uncertainty over rights of way.

The court found the agreement valid and binding, noting the defendants could not rely on their own failure to obtain the necessary severances to terminate the contract.

Finding the property uniquely suited to the plaintiffs' needs, the court granted summary judgment and ordered specific performance.

Following a partial judgment in a trial regarding the return of vehicles and parts, the court directed a reference to determine the plaintiff's remaining claims for monetary damages.

The parties agreed to appoint a specific referee.

The court rejected the parties' draft consent order as it improperly delegated judicial authority and failed to address referee remuneration and reporting procedures.

The court issued its own order directing the reference pursuant to Rule 54 of the Rules of Civil Procedure, outlining the specific issues to be determined, including damages for unreturned or damaged vehicles, and potential credits for improvements made by the defendant.

The applicant sought a declaration of a prescriptive easement over a passageway on the respondent's adjoining property and damages for the pruning of an overhanging tree limb.

The court found that the historical use of the passageway by the applicant's predecessors was permissive and neighbourly, not 'as of right', and thus no prescriptive easement was established.

The court also dismissed the claim for damages, holding that the respondent was legally entitled at common law to prune the overhanging branches of the applicant's tree that intruded onto her property.

The plaintiff in a wrongful dismissal action brought a motion to remove the defendant corporation's counsel of record, who was also the sole officer and director of the corporation and a key participant in the employment negotiations at issue.

The defendant brought a cross-motion to strike the plaintiff's exhibits based on settlement privilege and to allow the counsel to act as an agent if removed.

The court dismissed the cross-motion, finding that any privilege had been waived.

The court granted the motion to remove counsel, holding that while his status as a potential witness alone did not disqualify him, his demonstrated personal attachment to the litigation compromised his impartiality as an advocate.

The court also denied leave for him to act as an agent for the corporation.

The applicant moved to strike portions of an affidavit filed by the respondent Attorney General.

The underlying application involves a Charter challenge to the application of FIPPA to certain quasi-judicial tribunals.

The parties had previously agreed to limit the scope of the application to 16 specific tribunals.

The impugned affidavit evidence detailed the procedures of the Social Benefits Tribunal, which was not one of the 16 listed tribunals.

The court granted the motion, finding that the evidence improperly expanded the scope of the application contrary to a prior case management endorsement.

The plaintiffs were involved in a motor vehicle accident caused by a pothole.

They initially sued the City of Toronto and 'John Doe Maintenance Company'.

After the limitation period expired, the plaintiffs successfully moved before a Master to substitute the Region of York and Brennan Paving as defendants, relying on the doctrine of misnomer.

The defendants appealed.

The Superior Court of Justice granted the appeal, finding that the Master erred in law by extending the doctrine of misnomer too far.

The court held that the 'litigating finger' did not clearly point to the proposed defendants, as the Statement of Claim identified the accident location in a different municipality, and it was unreasonable to expect the proposed defendants to connect the claim to a notice letter sent nearly two years earlier.

The defendants brought a motion to vary a Mareva injunction to permit payments for legal fees and living expenses out of frozen funds.

The plaintiffs opposed the motion, arguing the defendants failed to demonstrate they lacked access to other assets.

The court dismissed the motion, finding the moving parties failed to discharge their onus because they did not provide evidence explaining why related corporate defendants (Incryptex and ApexDX) could not fund the litigation, nor did they provide sufficient details of their living expenses or account for other funds.

The plaintiff sought leave to appeal an order dismissing its motion for partial summary judgment, where the motion judge found insufficient evidence to precisely identify the intellectual property sought to be protected.

Applying the strict test for leave to appeal under Rule 62.02(4), the court found no conflicting decision on principle and no good reason to doubt the correctness of the order, despite minor issues with the motion judge's articulation of legal tests.

The court also determined that the matter did not raise questions of general or public importance.

The motion for leave to appeal was dismissed, and costs were awarded to the respondent.

Following a train derailment that damaged the plaintiffs' property, the plaintiffs' insurer paid a portion of the losses but failed to commence a subrogated action within the limitation period.

The plaintiffs sued the defendants for their uninsured losses only.

The insurer brought a motion for leave to intervene and to compel the plaintiffs to amend their statement of claim to include the subrogated claim.

The court dismissed the motion, finding that where the insured's loss exceeds the insurance proceeds, the insured is not obligated to maintain an action on behalf of the insurer, and the insurer cannot correct its missed limitation period by compelling the plaintiffs to prosecute the claim.

The defendant requested that the court dismiss the action under Rule 2.1.01 of the Rules of Civil Procedure as clearly frivolous, vexatious, and an abuse of process.

The statement of claim alleged that hospital staff assisted the military in interrogating the plaintiff using implanted brainwashing devices and insects.

The court held that Rule 2.1 provides a mechanism to summarily dismiss the clearest cases of abuse without full submissions.

Finding the allegations incapable of supporting a viable legal claim and concluding that nothing the plaintiff could submit would permit the action to proceed, the court dismissed the action without costs.

The plaintiff subcontractor moved for summary judgment for unpaid contract and extra work totaling $131,919.97 under a construction contract.

The defendant contractor asserted deficiencies and attempted to rely on claims arising from a separate construction project to assert set-off.

The court found the plaintiff’s claim was fully proven and largely undisputed, except for a limited deficiency claim forming part of a counterclaim.

The court held that statutory set-off under s. 17(3) of the Construction Lien Act did not apply because the separate project involved different parties and lacked contractual privity, and equitable set-off was also unavailable due to insufficient connection between the projects.

Summary judgment was granted for the plaintiff with enforcement partially stayed pending trial of the lien claim and reduced counterclaim.

The plaintiffs brought a motion seeking to compel the defendants to fulfill outstanding undertakings and answer numerous refusals arising from examinations for discovery in a commercial dispute involving alleged breach of contract and trademark infringement related to restaurant businesses.

The court reviewed whether undertakings had been adequately fulfilled and whether refusals were proper under the Rules of Civil Procedure governing relevance and proportionality.

Most undertakings were found to have been adequately answered and most refusals were upheld as proper because the requested information was irrelevant, duplicative, disproportionate, or related to events after the parties’ business relationship ended in September 2011.

The court ordered compliance with only two undertakings and several limited refusals concerning investors and accounts tied to a key restaurant entity before September 2011.

The plaintiffs’ motion was otherwise dismissed and costs were awarded to the defendants.

The plaintiffs brought a $10 million solicitor negligence action against their former lawyers arising from legal services provided during a shareholder dispute and mediation leading to a buyout of the plaintiffs’ interest in a shoe business.

They alleged the lawyers forced them into a sale, misrepresented valuation implications, failed to protect a purported 50% ownership interest, and negligently advised bringing an unsuccessful motion to set aside a mediated agreement.

The court rejected the allegations, finding the plaintiff was a sophisticated businessperson who actively participated in negotiations, reviewed drafts, and instructed counsel throughout.

The evidence showed the mediated agreement was knowingly entered into as a binding agreement with a reasonable valuation date and arbitration mechanism.

The court held the defendants met the standard of care of a reasonably competent lawyer and that any strategic decisions fell within a reasonable range of professional judgment.

The representative plaintiff in a proposed class proceeding sought leave to discontinue the action under s. 29(1) of the Class Proceedings Act, 1992.

The claim concerned retiree health benefits allegedly promised to spouses of employees who accepted an early retirement program.

The representative plaintiff ceased to have a personal cause of action after his spouse predeceased him and he was unable to find another class member willing to assume the representative role.

The court held that, given the small class size, lack of interest among potential class members, and the marginal economics of the litigation, discontinuance was appropriate.

Leave to discontinue was granted subject to notice being provided to potential class members.

The plaintiff contractor brought an action under the Construction Lien Act against the defendant owners for unpaid invoices relating to masonry work on a remote island cottage.

The defendants argued the plaintiff over-billed, delayed the project, and performed deficient work.

The court found the parties had a time and materials contract, the plaintiff's billings were largely accurate, and the defendants' complaints about deficiencies were unfounded or related to work outside the plaintiff's scope.

The court awarded the plaintiff $117,554.43, including interest and late charges, and declared a lien on the property.

A Quebec law firm sought a declaration in Ontario recognizing and enforcing a Quebec judgment for unpaid legal fees under rule 14.05(3)(h) of the Rules of Civil Procedure.

The court held that a foreign judgment from a non‑reciprocating jurisdiction creates a debt based on an implied promise to pay, which must be enforced through a new action rather than an application for declaratory relief.

The court rejected prior authorities suggesting that an application was available under rule 14.05(3)(h).

Because the amount claimed fell within the monetary jurisdiction of the Small Claims Court, the proper forum for any enforcement proceeding was that court rather than the Superior Court of Justice.

The application was therefore dismissed.

In a personal injury action arising from a skiing accident allegedly causing traumatic brain injury, the defendants sought an order compelling the plaintiff to undergo a vocational assessment by a non‑medical practitioner.

The plaintiff argued the court lacked jurisdiction under the Courts of Justice Act and the Rules of Civil Procedure to order such an assessment because the proposed assessor was not a "health practitioner" within the statutory definition.

The court held that, regardless of the statutory framework, the court may order a non‑medical vocational assessment where it is reasonably required and necessary to ensure fairness in the litigation.

Given the substantial claim for past and future income loss and the importance of assessing residual earning capacity, the requested assessment was found appropriate and not unfairly intrusive.

The motion was granted and the plaintiff was ordered to attend the vocational assessment.

The parties appealed a master’s decision concerning defence medical examinations in a personal injury action involving a minor who sustained serious injuries after falling from an apartment window.

The master granted leave for a second motion and ordered the plaintiff to attend a defence neuropsychological assessment, with the plaintiff’s mother required to participate by questionnaire and interview.

The master refused to order an in‑home future care cost assessment by a nurse practitioner.

On appeal, the court held the master made no reviewable error, finding the neuropsychological assessment was justified to respond to the plaintiff’s expert evidence and that the second motion was not barred by res judicata or abuse of process.

The refusal to order the in‑home assessment was upheld because the proposed assessor was not a statutory “health practitioner” and the evidence did not demonstrate necessity.