Civil Litigation - Defendant - SCJ

This decision addresses the costs of a dismissed motion brought by the plaintiff, United Mennonite Home for the Aged, to amend its pleadings to name Dan Gordon in his personal capacity.

The defendant, Dan Gordon, was entirely successful in opposing the motion and sought partial indemnity costs.

The court awarded partial indemnity costs to the defendant, reducing the claimed amount by $1,000 due to the defendant's conduct unnecessarily lengthening the proceeding.

The court affirmed that success is a presumptive factor in costs awards and that a charitable organization's limited ability to pay is irrelevant when they initiated the motion.

Following the dismissal of the plaintiff's motion for injunctive relief, the successful defendants sought costs on a substantial indemnity basis.

The plaintiff argued that the defendants' costs were excessive and that their conduct warranted a denial of costs.

The court found that while the plaintiff's motion was ill-conceived, its conduct was not reprehensible enough to justify elevated costs.

Applying the factors under Rule 57.01, the court awarded the defendants partial indemnity costs in the amount of $50,995.12.

Following the settlement of an urgent application for relief from forfeiture arising from a commercial lease dispute during the COVID-19 pandemic, the court determined the entitlement to costs.

The landlord sought to rely on a lease provision granting it substantial indemnity costs for tenant defaults.

The court declined to enforce the contractual costs provision, finding the landlord acted precipitously in attempting to lock out the tenant who had sought accommodation for pandemic-related financial strain.

The applicant tenant was awarded partial indemnity costs of $43,049.10, to be set off against deferred rent payments.

The plaintiffs entered into an Agreement of Purchase and Sale with the defendant seller and provided a deposit to the defendant real estate brokerage.

The seller repudiated the agreement but refused to consent to the return of the deposit, forcing the plaintiffs to commence an action and bring a motion for summary judgment.

The seller eventually consented to the return of the deposit after the motion record was served.

The court awarded the plaintiffs substantial indemnity costs against the seller due to his unreasonable conduct, but awarded no costs against the brokerage.

Following a previous ruling referring their dispute over a failed new home purchase to arbitration, the parties were unable to agree on an arbitrator.

The moving parties brought a motion in writing to have the court appoint their preferred candidate, Mr. Richler, citing his lower fees and capped costs.

The responding party failed to respond to the motion.

The court exercised its power under section 10 of the Arbitration Act to appoint Mr. Richler, conditional on his continued willingness to accept the appointment.

At a pre-trial for a motor vehicle accident case, the parties sought direction on how to proceed given the defendant had delivered a jury notice prior to the January 1, 2020 amendments to Rule 76.

The Master held that the new Rule 76 and section 108 of the Courts of Justice Act prohibit jury trials in simplified procedure actions.

Consequently, actions with pre-2020 jury notices must be converted to the ordinary procedure to preserve the right to a jury trial.

The defendant law firm in a certified class action brought a motion to compel the representative plaintiff to answer questions refused during his examination for discovery.

The plaintiff argued the questions related only to individual issues, not common issues.

The court granted the motion, holding that the representative plaintiff is subject to the same discovery obligations as any plaintiff in a normal proceeding and must answer questions relevant to his own individual issues, even if he can refuse questions relevant only to other class members' discrete individual issues.

The applicant unit owner commenced a proceeding against the respondent condominium corporation for damages arising from disruptive repair work to the common elements.

The parties settled the underlying dispute but left the issue of costs for the court to determine.

The applicant sought costs of $21,419.81, while the respondent sought costs of $40,069.05 based on an earlier settlement offer.

The court declined to award costs to either party, finding that the dispute could have been settled earlier but that penalizing the applicant for not accepting a withdrawn offer would disincentivize cooperative settlements.

Each party was ordered to bear their own costs.

The plaintiff, Byron Gracey, brought a motion on consent for certification of a class action under the Class Proceedings Act, 1992.

The action sought compensation for persons who contracted Giardiasis from the Ramada Beacon Harbourside Hotel pool between September 2012 and January 2013, including derivative claims under the Family Law Act.

The defendant, 1093823 Ontario Limited, and third parties, Regional Municipality of Niagara and Margaret Parks Swimming Schools Limited, consented to certification.

The court found that all criteria for certification under s. 5(1) of the Class Proceedings Act, 1992 were satisfied, and the motion for certification was granted.

The plaintiffs brought a motion seeking approval of an infant settlement in a motor vehicle accident case.

The requested relief included dispensing with service of supporting affidavits, approval of a contingency fee retainer agreement (CFRA) for the infant plaintiffs, and approval of the settlement dismissing the infant claims without costs.

The court granted the order to dispense with service of affidavits and approved the infant settlement, finding it reasonable and in the infants' best interests.

However, the court declined to approve the CFRA, questioning its validity as it was entered into after the settlement had been reached.

The balance of the action was dismissed without costs.

The defendant, a former tenant, brought a motion for summary judgment to dismiss the plaintiffs' action for damages caused by a fire in his apartment.

The defendant argued that a letter from the plaintiffs, combined with an agreement to terminate his tenancy, constituted a release from liability for the fire.

The plaintiffs contended that the letter was not a release or was only a partial release, preserving their right to pursue a subrogated claim through their insurer.

The court found that the letter and termination agreement, read as an integrated whole, plainly released the defendant from liability for the fire, interpreting the phrase "damages will be dealt with between the insurance companies" to mean without the defendant's involvement.

The motion for summary judgment was granted, and the plaintiffs' action was dismissed with costs.

The defendant brought a motion for security for costs against the plaintiffs in a breach of contract action regarding broadcasting airtime.

The court found that the corporate plaintiff had insufficient assets in Ontario and that the individual plaintiff's claim was frivolous and vexatious as he had no personal contract with the defendant.

The plaintiffs failed to establish impecuniosity due to inadequate financial disclosure and suspicious property transfers.

The court ordered the plaintiffs to post $75,000 in security for costs in installments.

The plaintiff sought leave to amend the statement of claim in an action against a condominium corporation arising from water infiltration into a condominium unit.

The proposed amendments expanded the claim from a single water event to ongoing infiltration issues and added claims for breach of fiduciary duty and oppression under the Condominium Act.

The defendant opposed the amendments on limitation, pleading sufficiency, and abuse of process grounds.

The court applied Rule 26.01 of the Rules of Civil Procedure and held that any prejudice could be compensated through costs or adjournment.

Leave to amend was granted, with terms allowing the defendant to file a fresh defence and conduct further discovery.

A contractor commenced a $205 million action against a public transit authority arising from a major subway expansion contract.

The authority moved under Rule 21.01(1)(a) for determination of a contractual clause prohibiting litigation until the contractor’s final invoice had been processed, and sought a stay under s. 106 of the Courts of Justice Act.

The court held that interpretation of the clause was a pure question of contractual interpretation suitable for determination on a Rule 21 motion.

The provision was enforceable between sophisticated commercial parties and clearly prohibited commencing an action before the contractual triggering event.

As the triggering event had not yet occurred, the action was stayed pending its occurrence.

The defendants brought a motion to strike the plaintiffs' statement of claim, arguing it disclosed no reasonable cause of action and was an abuse of process due to a prior default judgment.

The court declined to strike the entire action, finding the prior action involved a sublease while the current action involved the purchase and sale of a business.

However, the court struck several claims, including inducing breach of contract against a corporate director without leave to amend, and claims for unjust enrichment and conspiracy with leave to amend.

The moving parties were awarded partial indemnity costs.

The plaintiffs sought damages for alleged breach of an agreement of purchase and sale requiring the vendor to remove all existing structures, including foundations and the concrete slab on grade, from a commercial property.

After a trial focused largely on credibility and proof of loss, the court found the vendor had completed the demolition work, including removal of the slab and footings, and rejected the plaintiffs' factual allegations to the contrary.

The court also found that any alleged delay tied to a vendor's lien resulted from the plaintiffs' own inaction and that no actual out-of-pocket losses were proven.

The action was dismissed, and judgment on the defendant's crossclaim directed payment out of the $65,000 holdback plus accrued interest.

The plaintiff brought a motion for an interim interlocutory injunction requiring that past and future revenues from certain taxi plates be paid into court pending trial of an ownership dispute between family members.

The plaintiff also sought preservation of the alleged fund under Rule 45.02 of the Rules of Civil Procedure and an accounting.

Applying the tripartite test for injunctive relief from RJR‑MacDonald, the court found there was a serious issue to be tried regarding ownership of the taxi plates but held that the plaintiff failed to demonstrate irreparable harm or that the balance of convenience favoured granting the injunction.

The court also declined to order preservation of funds under Rule 45.02 because no identifiable existing fund had been established and anticipated future revenues do not constitute a specific fund.

The motion and request for an accounting were dismissed.

The plaintiffs sought leave to appeal orders removing their solicitor of record and awarding costs.

The motion judge considered the test under Rule 62.02(4) of the Rules of Civil Procedure for granting leave to appeal.

The underlying orders were based on a conflict of interest arising from a solicitor’s prior solicitor-client relationship and the potential use of confidential information, applying the principles from Martin v. MacDonald Estate (Gray).

The court found no good reason to doubt the correctness of the original decision removing counsel and awarding costs.

Leave to appeal was refused and the parties were ordered to bear their own costs of the motion.

The moving party brought an application seeking dismissal of the respondent’s action concerning leasehold property.

At the hearing, counsel for the respondent requested an adjournment citing prolonged illness and medical incapacity.

The court reviewed the procedural history, noting repeated adjournments, failure to comply with filing deadlines, and unpaid costs previously ordered against the respondent.

Despite expressing significant concern about counsel’s conduct and lack of diligence, the court granted the adjournment due to the medical circumstances.

The adjournment was subject to strict conditions including substantial indemnity costs, compliance with a new timetable, production of updated medical documentation, and a requirement that alternate counsel be retained if counsel remained unable to proceed.

The defendant brought a motion under Rule 25.11(c) of the Rules of Civil Procedure to strike portions of a statement of claim as an abuse of process following a prior order that barred the plaintiff’s wrongful dismissal and long‑term disability claims due to delay.

The plaintiff issued a revised statement of claim that removed certain paragraphs but retained factual allegations the defendant argued were tied to the barred claims.

The court held that pleadings must contain material facts rather than evidence and should avoid irrelevant allegations that would delay a fair trial.

While most of the pleading was permitted to stand, the court found certain portions were not germane to the remaining causes of action and would unnecessarily complicate the proceeding.

The court ordered limited portions of the pleading struck while otherwise allowing the claim to proceed.