Civil Litigation - Defendant - SCJ

The court dismissed summary judgment motions brought by the defendants in a personal injury action arising from an assault during a recreational hockey tournament.

The plaintiffs alleged negligence and statutory liability against the arena owner, tournament organizer, and bar operator, following an assault by a player who had been drinking.

The court found that genuine issues requiring a trial remained, particularly regarding foreseeability, standard of care, and the state of the evidentiary record.

The decision reviews the legal principles for summary judgment, the duties of commercial hosts and organizers, and the need for a full trial to resolve disputed facts and credibility.

The defendant law firm, Addelman Baum Gilbert Robinson LLP, brought a motion to set aside a noting in default entered by the self-represented plaintiff, Deirdre Moore.

The plaintiff had sued two law firms for $1.75 million in damages.

The court found that the 20-day delay in filing a statement of defence by Addelman was not extensive and had a "real excuse" (counsel awaiting client file, Joseph Addelman on vacation).

The court criticized the plaintiff's "sharp practice" in noting default without providing the requested two weeks' notice, emphasizing that self-represented litigants are not exempt from professional courtesies.

Finding no prejudice to the plaintiff and significant prejudice to the defendant if not allowed to defend serious allegations, the court granted the motion to set aside the noting in default and allowed Addelman to deliver a statement of defence.

No costs were awarded due to the conduct of both parties.

The self-represented plaintiff in a medical malpractice action brought motions to strike the defendant physician's Statement of Defence, compel answers to a third set of written discovery questions, and examine non-party witnesses.

The defendant brought a cross-motion to dismiss the plaintiff's motions as frivolous and vexatious under Rule 2.1.02.

The court dismissed the motion to strike the defence, finding the defendant had adequately answered nearly 300 questions and fulfilled his production obligations.

The court ordered the defendant to answer two specific questions relevant to the pleadings but otherwise dismissed the request for further answers.

The cross-motion and the motion to examine non-parties were also dismissed or adjourned.

The defendant property owner moved under Rule 45.02 for an order requiring her co-defendant, a second mortgagee who sold the property under a power of sale, to pay a portion of the sale proceeds into court.

The moving party alleged the mortgagee breached its duties by selling the property at an improvident price.

The court dismissed the motion, finding that while the moving party claimed a right to a specific fund, she failed to establish a serious issue to be tried regarding the mortgagee's conduct, and the balance of convenience favoured the mortgagee given the undisputed mortgage debt.

The applicant requested permission to bring a motion in writing to re-open evidence on four motions for judgment while decisions were under reserve.

The court denied the request, noting that court operations were suspended due to COVID-19 and only urgent matters were being heard.

The court further noted that the applicant failed to follow previous case management directions requiring her to schedule a case management conference and provide a detailed agenda before bringing any motions.

Karen Deer initiated an action against RBC Dominion Securities Inc. and others, alleging unauthorized margin account activity.

She issued a Notice of Action but failed to file a Statement of Claim within the prescribed 30 days, leading to the presumptive expiry of a limitation period under the Securities Act.

Deer moved to extend the time for filing her Statement of Claim and validate its service.

RBC opposed, arguing non-compensable prejudice due to the loss of a limitations defence.

The court granted Deer's motion, finding a reasonable explanation for the delay and no actual prejudice to RBC, emphasizing the policy of adjudicating cases on their merits over strict adherence to procedural rules when no substantive prejudice exists.

The plaintiff was severely injured in a recreational hockey game when the defendant delivered a blindside hit to his head.

The plaintiff suffered a concussion, broken teeth, and facial cuts, leading to long-term cognitive and functional limitations that impacted his ability to work as a personal trainer.

The defendant argued the collision was accidental and that the plaintiff was contributorily negligent due to his choice of facial protection and chronic cannabis use.

The court found the defendant fully liable, concluding the hit was intentional or reckless and outside the bounds of fair play.

The court awarded the plaintiff $702,551 in damages, including general damages and past and future income loss.

The plaintiff brought a motion for a status hearing to show cause why its action, arising from condominium construction defects, should not be dismissed for delay under Rule 48.14.

The court found the plaintiff failed to provide an acceptable explanation for over three years of delay and failed to rebut the presumption of prejudice, as it did not provide evidence that all relevant documents and key engineering and contracting witnesses were available.

The action was dismissed for delay.

This endorsement addresses case management issues in a long-standing action arising from a farm visit in 2005, particularly concerning the minor plaintiff Samuel Simpson who suffered significant cognitive and physical issues.

The court convened a case conference to establish a timetable for the delivery of expert reports, emphasizing the unacceptable delays in the case.

The judge ordered expedited efforts to obtain an MRI for the minor plaintiff and set specific deadlines for the service of expert reports on damages and liability for all plaintiffs and the defence.

The court also raised concerns about the minor plaintiff's representation after he turns 18 and directed counsel to make inquiries regarding a future litigation guardian.

The Plaintiffs brought a motion to exclude the report and viva voce evidence of the defence expert, Dr. Revie, or alternatively, to limit his evidence to the four corners of his report.

The Plaintiffs argued that Dr. Revie's report constituted oath helping, was merely a critique, failed to comply with Rule 53.03(2.1), and did not meet the common law test for expert evidence admissibility.

The court dismissed the motion, finding that the report, despite some unfortunate wording, did not amount to oath helping in this context, went beyond mere critique, and met the common law admissibility requirements under *Mohan* and *White Burgess*.

The request to limit Dr. Revie's evidence was declined for a pre-trial ruling.

Following a successful application involving a breach of fiduciary duty and disputed signatures, the applicant sought costs on a substantial indemnity basis.

The court declined to award substantial indemnity costs, finding the respondents' conduct was not reprehensible, scandalous, or outrageous.

The court awarded costs to the applicant on a partial indemnity basis, fixing the quantum at $87,100 inclusive of HST and disbursements, after making minor deductions for unissued claims and certain disbursements.

This addendum to reasons for summary judgment addressed the disposition of a $50,000 US gift intended for a property for pilgrims in Poland.

The court found that the funds were misappropriated by an associate of the Plaintiff for personal use (car purchase and condominium down payment).

Despite a clear moral obligation for the Plaintiff or its associate to repay the funds, the court determined that any legal claim for their return was time-barred by the Limitations Act, 2002, as the donor was aware of the misuse in 2014.

The court also found the Plaintiff's allegations of impropriety against the defendant to be false and awarded costs to the defendants.

The defendants brought a motion under Rules 21 and 25.11 of the Rules of Civil Procedure to strike out the plaintiffs' Amended Statement of Claim, arguing it failed to disclose a reasonable cause of action and lacked sufficient detail.

The plaintiffs' claim alleged breach of contract, oppression, breach of good faith, misrepresentation, and unjust enrichment arising from a joint venture departure agreement and an alleged sham termination of a management contract.

The court dismissed the motion, finding that the claims were pleaded with sufficient particularity and it was not plain and obvious that they would fail.

The applicant sought a declaration that an agreement of purchase and sale for a residential property remained in full force and effect.

The respondent argued that the agreement, which was tied to a lease, had been terminated due to chronically late rental payments and other alleged breaches, relying on the principle that full performance was a condition precedent to exercising the option to purchase.

The court found that the principles of fundamental and anticipatory breach applied, rather than strict condition precedent.

The court concluded that the respondent failed to properly terminate the agreement within a reasonable time and granted the declaration that the purchase and sale agreement remained valid.

The plaintiffs, a precast concrete manufacturer and its sales agent, sued an engineering company and its principal for breach of contract and negligence arising from delayed and error-filled engineering drawings for a parking garage project.

The court found the defendants liable in both contract and tort for pure economic loss.

The court admitted subcontractor invoices as business records under the principled approach to hearsay to prove damages.

The defendants' third-party claim against their insurers was partially allowed, with the court allocating damages between covered errors and excluded delays.

The plaintiffs, owners of a long-standing apple farm and retail market, sought an interlocutory injunction to prevent the defendants from constructing berms on lands adjacent to a nearby landfill.

They argued the berms would eliminate buffer lands, violate environmental approvals, and cause nuisance by creating stigma that would harm their retail business.

The court applied the test for interlocutory injunctions from RJR MacDonald Inc. v. Canada (Attorney General) and found that while there was a serious issue to be tried, primarily in nuisance, the plaintiffs failed to establish irreparable harm.

Evidence showed the market had achieved record sales after initial berm construction and any potential losses could be compensated by damages.

The balance of convenience also favoured the defendants due to delay in bringing the motion and the impact an injunction would have on the defendants’ construction plans.

A former law firm partner brought an application disputing liability for goodwill payments and accounting fees following his withdrawal from the partnership.

The central issue was whether the goodwill buy‑in constituted a fixed obligation payable over five years or annual payments contingent on continued partnership membership.

The court held that the parties had not expressly addressed early departure and that the available documentation and surrounding circumstances supported the interpretation that goodwill payments were contingent on partnership earnings during each year.

As the applicant left the partnership after two years, he was not liable for the remaining goodwill payments.

The court also held that accounting services incurred to resolve disputes regarding the firm's records were firm expenses, not the applicant’s personal liability.

The representative plaintiff in a certified class proceeding sought court approval of a settlement and approval of class counsel fees under the Class Proceedings Act, 1992 following a cyber‑attack on the defendants’ PlayStation Network and related online services that allegedly compromised personal information and interrupted access.

The settlement provided cash payments for unused account balances, online service benefits, and reimbursement of up to $2,500 for proven identity theft losses.

Notice of certification and settlement was distributed to millions of account holders and resulted in minimal opt-outs and no objections.

The court considered the applicable factors for settlement approval in class proceedings and concluded the agreement was fair, reasonable, and in the best interests of the class.

The requested class counsel fee of $265,000 was also approved as reasonable in light of the risk and work undertaken.

On a motion for directions in an application concerning settlement agreements related to the Ambassador Bridge between Windsor and Detroit, the moving parties sought broad documentary production from the federal government.

The court addressed disputes over the scope of relevance and proportionality in documentary disclosure within an application proceeding.

The court held that production must be limited to documents relevant and probative to interpreting the settlement agreements and their alleged ongoing obligations, rejecting requests for expansive historical government policy and legislative background materials.

The court provided guidance on specific document categories, directed the parties to exchange lists of litigation records from prior Canadian and U.S. proceedings, and required further review of settlement negotiation materials.

Directions were also given to narrow issues, schedule cross-examinations, and coordinate related proceedings.

Following a successful motion striking the statement of claim against a corporate director, the individual defendant sought costs.

The underlying motion held that directing corporate acts leading to breach of contract is insufficient to establish personal liability unless the director acted without bona fides and outside authority.

The court rejected the plaintiffs’ argument that the result was mixed because leave to amend had been granted.

Costs were awarded on a partial indemnity scale as the moving parties were the successful parties and the amount sought was reasonable.