Civil Litigation - Defendant - SCJ

This decision provides supplementary reasons following a motion for a certificate of pending litigation.

The court addresses an improper communication from the unsuccessful parties' counsel questioning the evidentiary basis of the prior decision, specifically regarding a mortgage on the subject property.

The court clarifies that direct communication with the court without prior consent or direction is a breach of Rule 1.09 of the Rules of Civil Procedure.

The court also confirms that the title abstract showing the mortgage was part of the evidentiary record and that its presence or absence does not alter the original assessment of equities or the decision.

The defendants brought a motion to discharge a Certificate of Pending Litigation (CPL) and for a writ of possession after the plaintiffs failed to comply with a prior court order requiring them to pay funds into court and pay interim occupancy rent.

The plaintiffs sought an adjournment, which was denied due to a lack of reasonable explanation and prejudice to the defendants.

The court granted the defendants' motion, discharging the CPL, issuing a writ of possession, and ordering the plaintiffs to pay outstanding occupancy costs and $1,000 in costs.

This decision addresses interest and costs following a trial concerning a defunct joint venture.

The plaintiffs were largely successful at trial, establishing misappropriation of funds by the defendants and lifting the corporate veil.

The court awarded pre-judgment interest at 8% (non-compounded) from January 1, 2012, to November 2, 2021, with an exclusion period for plaintiff's delay.

Post-judgment interest was set at the Courts of Justice Act rates.

The court awarded substantial indemnity costs to the plaintiffs, reduced from the claimed amount due to some divided success and costs incurred by defendants from mid-trial document production.

The court found the defendants' conduct, including meritless allegations of dishonesty and introducing new unpleaded theories at trial, justified the substantial indemnity costs.

The court issued procedural directions in a dispute between the parties, granting the respondent leave to file a rebuttal affidavit.

The parties were directed to meet to discuss a potential consent sale of the home, participate in mediation, and a hearing date was scheduled for the application.

The plaintiffs sought damages for negligence related to a soil bearing capacity report.

The defendants moved for summary judgment, arguing the claim was statute-barred under the Limitations Act, 2002.

The court found that the plaintiffs had discovered the material facts giving rise to their claim by October 2016, more than two years before commencing the action in January 2019.

The court rejected arguments that expert reports or ongoing discussions with the defendants and their insurer postponed the discoverability date, emphasizing that certainty of causation is not required and settlement negotiations do not extend limitation periods.

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

The Plaintiff sought substantial indemnity costs after successfully proving copyright infringement and being awarded statutory damages.

The Defendants argued for no costs or their own costs due to the Plaintiff's limited success and failure to accept their settlement offer.

The court awarded the Plaintiff partial indemnity costs of $30,000, finding that neither party's settlement offer triggered Rule 49.10 consequences and adjusting the Plaintiff's claimed costs for reasonableness and proportionality.

This decision addresses costs arising from a successful interlocutory injunction motion brought by Wayne and Liana Gendron against the City of Kawartha Lakes.

The Gendrons sought substantial indemnity costs, while TD Bank, a non-party, also requested costs.

The City opposed both requests.

The court awarded partial indemnity costs to the Gendrons, finding the City's opposition to the underlying injunction motion to be without merit.

TD Bank's request for costs was denied, as it was a non-party with a mere "watching brief" whose counsel's attendance added nothing to the argument.

The court determined costs following two anti-SLAPP motions under s. 137.1 of the Courts of Justice Act.

The defendant broadcaster, having successfully dismissed the defamation claim against it, was awarded costs on a full indemnity basis, though the requested amount was reduced to $500,000 plus disbursements due to the motion's excessive complexity.

The plaintiff, having successfully defeated the defendant university's novel anti-SLAPP motion regarding a negligence claim, was awarded partial indemnity costs of $222,000, as the university's motion lacked the characteristics of a true SLAPP suit.

The defendants brought a mid-trial motion to determine the admissibility of two reply expert reports (Prof. Shane O’Mara and Dr. Stephen Xenakis) served by the plaintiffs just before trial.

The defendants argued the reports were late and constituted impermissible case splitting.

The plaintiffs contended the lateness was due to unforeseen circumstances and that the evidence would assist the court.

The court found that the issues addressed by the reply reports were foreseeable and had already been covered by the plaintiffs' initial experts, thus constituting new evidence rather than proper reply.

The court dismissed the motion, ruling the reports inadmissible to avoid prejudice to the defendants and further trial delays, emphasizing the importance of adhering to trial schedules in a long-standing action.

The plaintiffs sought leave under s. 12 of the Evidence Act to call four additional expert witnesses (three occupational therapists and one life care planner) in a personal injury action, beyond the three medical experts and one accountant already intended.

The defendants opposed, arguing duplication and unnecessary expense.

The court granted leave for two of the four additional experts: Ms. Schmidt (occupational therapist) and Mr. Smit (life care planner), but limited Mr. Smit's evidence to costs.

The court denied leave for Mr. Campbell and Mr. Tyrer, finding their evidence duplicative as both were occupational therapists and vocational assessors co-authoring reports on employability.

The plaintiff brought a motion to find the defendants, Marcel and Jean-Georges Bisson, in civil contempt for deliberately refusing to sign Full and Final Releases as ordered by a previous judgment.

Applying the three-part test from Carey v. Laiken, the court found beyond a reasonable doubt that the order was clear, the defendants had actual knowledge of it, and they intentionally failed to comply.

The defendants were found in contempt, fined $20,000, and the releases were deemed signed by court order.

Costs were awarded to the plaintiff on a full indemnity basis.

The plaintiff, Zheng Lou, brought a two-branched motion: (1) for court approval of a settlement reached with defendant Baomin Yi, and (2) to convert her individual action against London Life Insurance Company into a class action.

The court dismissed the motion for settlement approval, finding no jurisdiction to approve settlements in regular actions.

The court also dismissed the motion to convert the action into a class proceeding, holding that an additional threshold test beyond Rule 26 of the Rules of Civil Procedure must be met for such conversions.

This threshold was not satisfied due to serious limitation period issues, problems with the proposed class definition, common issues, preferable procedure criteria, and the suitability of the plaintiff as a representative.

The plaintiff commenced an action seeking damages for slander.

The defendant brought a motion to strike the statement of claim under the Protection of Public Participation Act, 2015 (anti-SLAPP legislation).

The parties could not agree on a timetable leading up to the motion, particularly because the defendant failed to attend her scheduled examination for discovery due to medical reasons.

The court fixed a timetable for the delivery of materials, completion of discoveries, cross-examinations, and factums leading up to the scheduled motion date.

The defendants brought a motion to transfer a simplified rules action from Toronto to Thunder Bay.

The plaintiff's action claimed damages for malicious prosecution and negligent investigation arising from an arrest in Thunder Bay.

The court applied the holistic balancing test under Rule 13.1.02(2) of the Rules of Civil Procedure.

Finding that the events occurred in Thunder Bay, the community interest favoured Thunder Bay, and the convenience of parties and witnesses favoured Thunder Bay, the court granted the motion and ordered the transfer.

The individual defendants brought a motion for summary judgment to dismiss the plaintiff's breach of trust claim under the Construction Lien Act, arguing the claim was statute-barred.

The plaintiff had agreed to extend the time for payment of outstanding invoices after the corporate defendant requested forbearance.

The court found that the forbearance agreement was supported by consideration and was therefore enforceable.

Furthermore, the court held that the limitation period for a breach of trust claim does not automatically commence when payment is due, but is governed by the discoverability principle under the Limitations Act, 2002.

The motion for summary judgment was dismissed.

Following a trial where the plaintiff obtained judgment on a promissory note and successfully defended a counterclaim alleging fraud, the court determined costs.

The plaintiff and its principal were awarded substantial indemnity costs of $115,530.26 because the plaintiff beat its Rule 49 offer to settle and the defendants made unfounded, seriously prejudicial allegations of fraud.

The third-party real estate broker and his brokerage, who also successfully defended the counterclaim, were awarded partial indemnity costs of $60,047.28, as there was no clear finding of reprehensible conduct against them to justify elevated costs.

Following a six‑day civil fraud trial in which the plaintiff recovered damages exceeding $150,000, the court determined the appropriate costs award.

The plaintiff sought substantial indemnity costs, relying on findings that the defendants engaged in deceitful and exploitative conduct and pointing to litigation conduct during trial.

Applying Rules 1.04 and 57.01 of the Rules of Civil Procedure and relevant appellate guidance, the court held that substantial indemnity costs are reserved for rare and exceptional cases involving reprehensible conduct.

The court found that the conduct of one individual defendant and the corporate defendant warranted substantial indemnity costs, while another defendant’s lesser culpability justified only partial indemnity costs.

Costs were fixed at $50,000 on a substantial indemnity scale and $32,500 on a partial indemnity scale, with joint and several responsibility apportioned among the defendants.

Following a trial involving competing defences, the court addressed costs where each side experienced partial success.

The defendants succeeded on a late‑amended secondary defence but failed on their primary defence alleging deliberate misrepresentation by the plaintiff.

Most pre‑trial costs related to the unsuccessful fraud allegation, while only a small portion of the trial addressed the successful defence.

Applying Rule 57.01(2) of the Rules of Civil Procedure and considering the timing of the amendment and the nature of the allegations, the court ordered that the plaintiff recover costs incurred prior to the amendment while each party bear its own trial costs.

Homeowners sued a property management company for breach of contract and negligence after tenants placed by the manager operated a methamphetamine lab that caused an explosion and rendered the property uninhabitable.

The court found the manager misrepresented that the management contract was identical to a sample contract, which altered a liability clause from negligence to gross negligence.

Applying principles from cases including Tilden Rent-A-Car v. Clendenning and Crocker v. Sundance Northwest Resorts Ltd., the court held the defendant was estopped from relying on the altered limitation clause.

The manager breached its contractual obligations and the standard of care by failing to conduct promised tenant screening, failing to disclose deficiencies in the screening process, and failing to pursue eviction when arrears and warning signs emerged.

These failures caused the plaintiffs’ loss.

In an application concerning a dispute over the beneficial ownership of a condominium allegedly funded by a loan, the applicant sought leave under Rule 39.02(2) of the Rules of Civil Procedure to file a supplementary affidavit after cross-examinations had been conducted.

The proposed affidavit asserted that payments previously identified by the respondent as repayment of the condominium loan were actually repayment of a different loan.

The court applied the governing factors for leave to file additional affidavit evidence after cross-examination, including relevance, responsiveness to cross-examination, prejudice, and the explanation for failing to introduce the evidence earlier.

Although the respondent made strong submissions opposing the request, the court accepted counsel’s explanation that the omission was due to oversight and found any prejudice could be compensated through costs and procedural directions.

Leave was granted on strict terms including a timetable for responding evidence and costs payable to the respondent.