Civil Litigation - Defendant - SCJ

The applicants sought the appointment of a new arbitrator for a second arbitration concerning franchise agreements, while the respondents sought to re-appoint the arbitrator from the first arbitration.

The applicants objected on the basis of a reasonable apprehension of bias, as the arbitrator had made adverse credibility findings against them in the first proceeding.

The respondents argued the original arbitrator was best positioned to determine if the new claims were res judicata.

The court declined to appoint the original arbitrator, finding that relying on his private notes from the first arbitration would violate deliberative secrecy and that the interpretation of his prior award must be done objectively by a new decision-maker.

The court appointed a retired judge as the new arbitrator.

A case conference was held to manage multiple related actions.

The court noted that Commercial List matters were being traversed to the regular Civil list.

Directions were given for the filing of outstanding pleadings, setting aside defaults by consent, and establishing a mutually convenient discovery schedule with a target completion date of December 31, 2022.

The court also provided instructions for scheduling anticipated motions, including a potential Mareva injunction and a motion to join the trials.

The applicants, limited partners in a real estate development project, brought an application to compel the general partner to proceed to arbitration regarding the distribution of sale proceeds.

The respondents resisted, arguing that preliminary issues such as corporate authority and the enforceability of a release must be decided by the court first.

The court granted the application, ordering the parties to arbitration and holding that the broad arbitration clause and the competence-competence principle allowed the arbitrator to determine the preliminary issues.

The court also ordered that the sale proceeds remain in trust pending the arbitration.

The defendant, having been successful in the underlying action regarding its right to rebroadcast a 1984 interview, sought partial indemnity costs.

The plaintiff argued the defendant should be deprived of costs due to morally offensive conduct in rebroadcasting the program, which posed a safety risk to the plaintiff.

The court found no morally offensive behaviour, noting the defendant acted responsibly by removing the interview once alerted to the plaintiff's concerns.

The court awarded the defendant partial indemnity costs of $9,042.04, holding that sympathy for the plaintiff's situation is not a basis to refuse costs.

The plaintiff brought a motion seeking leave to issue a writ of seizure and sale and a notice of garnishment to enforce a 2010 summary judgment against the defendant for a mortgage shortfall.

The original writ had expired in 2016.

The defendant opposed the motion, arguing prejudice due to the plaintiff's nine-year delay in enforcement.

The court granted leave to issue the writ but, exercising its discretion to prevent injustice from the plaintiff's inaction, capped the accrual of interest to three years post-judgment.

Following the dismissal of the applicant's motion for reconsideration of a Rule 49 application, the respondent law firm sought costs.

The applicant argued that as a self-represented law firm, the respondent was not entitled to costs without proving lost opportunity costs.

The court agreed there was no evidence of lost opportunity costs, precluding a partial indemnity award.

However, exercising its general discretion under section 131(1) of the Courts of Justice Act, the court awarded nominal costs of $750 to the respondent to discourage inappropriate litigation behavior.

Following the dismissal of the defendants' motion on the basis of forum non conveniens, the Litigation Trust and the Class sought costs.

The court awarded the Class $6,000 on a partial indemnity basis for maintaining a watching brief.

The court awarded the Litigation Trust full indemnity costs of $208,590.73, finding that the defendants' motion was captured by the Standstill Agreement between the parties, which provided for full indemnity costs in the event of a breach.

In a class action settlement regarding Volkswagen diesel vehicles, the plaintiffs brought a motion seeking production of data relating to VW's investigation of post-repair lag and surge issues, and an extension of the claims deadline.

The plaintiffs argued that the Settlement Agreement required disclosure of this data to allow class members to make informed decisions.

The court dismissed the motion, finding that the lag/surge issue was a safety concern outside the ambit of the Settlement Agreement's provisions on reduced performance.

Consequently, the court held it had no jurisdiction under the settlement to order production of the data or to extend the claims deadline.

Following a summary judgment in favour of the plaintiffs regarding a residential condominium property dispute, the court determined the appropriate costs award.

The plaintiffs sought full indemnity costs of $200,000, while the defendant argued for no costs or a nominal amount due to credibility findings.

The court found the matter complex but not vexatious, rejecting full indemnity.

Costs were awarded to the plaintiffs on a partial indemnity scale in the amount of $110,908.00.

The plaintiff real estate brokerage brought a motion for summary judgment seeking $187,500 in commission from the defendant for an alleged breach of a Buyer Representation Agreement.

The defendant opposed the motion and maintained a counterclaim for damages, alleging the agreement was incomplete when signed and backdated.

The court found significant contradictory evidence regarding the execution and terms of the agreement, concluding there were genuine issues requiring a trial.

The motion for summary judgment was dismissed, as the use of enhanced fact-finding powers would not be in the interests of justice.

This decision addresses the costs of a dismissed application where the applicants, Victor Vetro and Linda Montanari, sought to remove Marilyn Gail Barbour as trustee of a property and transfer it to Ms. Montanari.

The application was dismissed by consent after Mr. Vetro's bankruptcy trustee intervened and settled a related application.

Ms. Barbour sought substantial indemnity costs, while the applicants argued for no costs.

The court awarded Ms. Barbour partial indemnity costs of $16,500, finding her to be the successful party on the costs issue, but not entitled to substantial indemnity based on the record before the court.

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.

The applicants sought to maintain an interlocutory injunction enjoining a former employee and his new company from soliciting clients.

The court found that the applicants continued to be at risk of irreparable harm from the loss of goodwill and business.

The injunction was maintained but amended to prohibit direct solicitation for a one-year period while allowing the respondents to accept unsolicited work from the applicants' clients.

During a jury trial for a slip and fall in a parking lot, the defendants (the property owner and the winter maintenance contractor) conditionally settled their crossclaims.

The plaintiff sought disclosure of the settlement agreement.

The court ordered the agreement disclosed to the court and then to the plaintiff, finding that it altered the adversarial landscape.

Consequently, the court ruled that the defendants were no longer adverse in interest and prohibited defence counsel from asking leading questions during the cross-examination of each other's witnesses, except on narrow issues where adversity remained.

A group of farmers brought an application seeking a declaration that a Crown corporation administering agricultural support programs was bound by the two‑year basic limitation period under the Limitations Act, 2002 when attempting to recover program overpayments.

The applicants argued that, as a Crown agent rather than the Crown itself, the corporation could not rely on the statutory exemption from limitation periods applicable to Crown claims related to economic programs.

The court held that references to the Crown in s. 16(1)(j)(i) of the Act include Crown agents acting within the scope of their statutory authority.

As the debt claims arose from government economic programs administered by the corporation as a Crown agent, the exemption applied and the two‑year limitation period did not bar recovery proceedings.

The application was dismissed with costs.

The applicants and respondent are neighbours involved in a boundary dispute over a shared driveway and a triangular piece of land.

The respondent claimed possessory title to the triangle through adverse possession, while the applicants sought a declaration of ownership and the removal of fences and interlocking brick installed by the respondent on their property.

The court found that the respondent's adverse possession claim failed because the previous registered owner had interrupted the exclusive possession by entering the land to cut down trees before the 10-year statutory period expired and prior to the property's conversion to the Land Titles system.

The court granted the applicants' request for a declaration of ownership and ordered the respondent to remove the trespassing structures.

The plaintiff employer sought an interlocutory injunction against former employees and their new company alleging misappropriation of confidential information, breach of fiduciary duty, and breach of non‑solicitation clauses in employment agreements.

The court considered the test for interlocutory injunctions under RJR‑MacDonald and whether stronger proof was required in employment and restrictive covenant contexts.

The motion failed because the alleged confidential information consisted largely of generic consulting practices and there was no credible evidence that proprietary information had been taken or misused.

The alleged client and employee solicitations were disputed, unclear under the wording of the agreements, and occurred more than a year earlier, with no evidence of ongoing harm.

As the plaintiff failed to demonstrate irreparable harm or a clear breach of enforceable covenants, injunctive relief was denied.

A commissioned sales employee sued his employer alleging negligence after management failed to renew a federal National Standing Offer that enabled sales to a major customer, causing a temporary loss of commissions.

The court considered whether an employer owes a tort duty of care to an employee to maintain profitability or preserve sales opportunities that generate commission income.

The court held that the employment contract did not guarantee sales levels and the employer’s administrative oversight in failing to renew the standing offer did not create a recognized duty of care in tort.

Even if such a duty existed, the plaintiff failed to prove damages because he produced no tax records or reliable evidence of actual income loss during the relevant period.

The claim for lost commissions was therefore dismissed.

The co-defendants brought a motion for summary judgment dismissing a personal injury action arising from a rear-end motor vehicle collision.

The plaintiff alleged negligence by the drivers of two vehicles ahead of him, asserting that their actions in slowing and stopping after police intervention caused the collision.

The court reviewed police reports, discovery transcripts, and documentary evidence and held that the plaintiff failed to rebut the presumption of negligence that applies to a driver who rear-ends another vehicle.

The evidence established that the plaintiff was following too closely and failed to maintain proper vigilance and control.

The court concluded that there was no genuine issue requiring a trial and dismissed the plaintiff’s claims and cross-claims.

The defendants brought a motion to stay the plaintiffs' personal action for fraudulent misrepresentation and oppression, arguing it was barred by res judicata and issue estoppel due to a prior ruling denying leave to commence a derivative action.

The court dismissed the motion to stay under the Rules of Civil Procedure, finding the prior ruling did not determine personal rights or make binding findings of fact.

However, the court granted a stay under section 106 of the Courts of Justice Act pending the plaintiffs' appeal of the derivative action ruling, to prevent duplication of resources and inconsistent results.