Civil Litigation - Defendant - SCJ

The plaintiff, Wayne Safety Inc., brought an urgent ex parte motion seeking Mareva, Anton Piller, and Norwich injunctions, along with certificates of pending litigation (CPLs) and an order to amend the Notice of Action, against its former bookkeeper, Diana Gendelman, her husband Natan Gendelman, and associated numbered companies.

The plaintiff alleged a significant and ongoing fraud, estimated at over $5.2 million, involving the diversion of company funds to accounts controlled by the defendants and the purchase of properties.

The court found a strong prima facie case of fraud and conspiracy, a risk of asset dissipation, and a need to preserve evidence.

All requested relief was granted.

The estate trustee for the deceased respondent brought a motion seeking to represent the estate in her personal capacity without legal counsel.

The court held that an estate trustee acts in a representative capacity and is therefore required by Rule 15.01(1) of the Rules of Civil Procedure to be represented by a lawyer.

The motion was dismissed, and the estate trustee was ordered to retain counsel.

The plaintiff and defendants brought cross-motions regarding the sufficiency of answers to undertakings and refusals from examinations for discovery in a construction lien action.

The court ordered the defendants to provide further and better answers to several undertakings, finding their previous responses incomplete or non-responsive.

The court declined to order the production of the defendants' general ledgers and bank statements at this stage.

The defendants' motion to compel further answers from the plaintiff was dismissed, as the court found the plaintiff had either answered the undertakings or the defendants' follow-up questions exceeded the scope of the original undertakings.

The defendant moving party brought a motion to discharge a Certificate of Pending Litigation (CPL) registered against a 700-acre property.

The property was sold to the moving party under a power of sale while concurrently being sold by the owner to the plaintiffs.

The court found that there were triable issues regarding the validity of the power of sale and whether the moving party was a bona fide purchaser for value without notice.

The court concluded that the equities favoured maintaining the CPL to prevent the property from being encumbered or sold before trial, and found no material non-disclosure by the plaintiffs when they initially obtained the CPL ex parte.

The motion to discharge the CPL was dismissed.

The defendant estate moved for summary judgment in a motor vehicle accident claim, arguing that the deceased owner could not have been driving the offending vehicle and had not consented to anyone else possessing it.

The plaintiff's insurer opposed the motion, presenting hearsay evidence that the owner's son had previously driven the car and may have had implied consent.

The court dismissed the motion, finding that a trial was necessary to assess the credibility of witnesses and determine whether the driver had possession of the vehicle with the owner's consent.

The plaintiffs, owners of a 50-acre parcel and an adjacent 200-acre parcel, sought declaratory and injunctive relief regarding a right-of-way over the defendant's farm.

The plaintiffs intended to develop the property and sought declarations permitting them to alter the right-of-way for year-round vehicular access, remove gates, and access the 200-acre parcel.

The court dismissed the action, finding that the proposed development lacked municipal approval, making the requested declarations hypothetical.

The court also held that the plaintiffs could not use the right-of-way to access the 200-acre parcel, which was not the dominant tenement.

The plaintiff, a former franchisee, brought a motion for summary judgment against the franchisor and its principal, alleging deficiencies in disclosure documents, fraud, and forgery, and seeking damages over $2,000,000.

The defendants opposed the motion, arguing numerous factual disputes and credibility issues.

The court dismissed the motion for summary judgment, finding that the case involved too many disputed issues of fact, including allegations of fraud and forgery, which required an assessment of credibility that could not be resolved on a paper record.

The court also noted that a complex legal issue regarding the effect of a notice of rescission required a full appreciation of the factual matrix, best achieved at trial.

The court issued trial management directions and an endorsement, adjourning a bifurcated liability trial scheduled to commence on May 21, 2019.

The adjournment was necessitated by the parties' lack of trial readiness, specifically concerning the plaintiff's uncertainty regarding witness identities (over 20 potential witnesses, some unnamed) and the failure to finalize an agreed statement of facts.

Additionally, the plaintiff's last-minute motion to add another foreign defendant, Eli Lilly S.A., introduced unresolved jurisdictional issues that would further complicate and extend the trial.

The court emphasized the importance of efficient trial management and the fair allocation of judicial resources, concluding that proceeding with the trial under these circumstances would risk exceeding the allotted time and prejudice other litigants.

The self-represented plaintiff commenced two civil actions against police officers and their employer, seeking over $1 million in damages following his conviction for impaired driving.

He alleged the officers' conduct caused him to hire incompetent counsel, leading to his conviction.

The defendants moved to strike the claims.

The court granted the motions, finding the claims were a collateral attack on the plaintiff's criminal conviction, which had already been upheld on appeal.

The court held the pleadings disclosed no reasonable cause of action and constituted an abuse of process, striking them out without leave to amend.

The moving parties sought to set aside a registrar's dismissal order made for delay under the Rules of Civil Procedure in an action alleging police misconduct, bad faith investigation, and Charter breaches arising from events tied to a prior criminal prosecution.

Applying the established four-factor framework, the court held the moving parties failed to adequately explain the litigation delay, failed to show inadvertence in missing the deadline, and failed to bring the motion promptly.

The court further found a presumption of prejudice arising from the passage of time, held that presumption was not rebutted, and found actual prejudice to the police defendants due to unavailable witnesses and faded memories.

In a contextual assessment, the court also accepted that there was no valid cause of action against the provincial Crown on the pleaded facts.

The motion to set aside the dismissal was dismissed, with no costs sought.

The appellant appealed an assessment officer’s decision approving a solicitor’s fees of $75,000 plus $5,000 in assessment costs.

The appellant argued the award was unreasonably high and alleged several errors in principle, including failure to consider certain emails, improper consideration of pleadings, abusive conduct by the lawyer, and inability to pay.

The court held that the assessment officer considered the relevant evidence, applied the correct burden of proof, and made no palpable and overriding errors of fact.

The appellant failed to identify any error in principle in the assessment decision.

The appeal was therefore dismissed and costs were awarded against the appellant.

The defendants brought a motion under Rule 25(11)(a) of the Rules of Civil Procedure to strike several paragraphs of the statement of claim alleging prior misconduct and knowledge of risk relating to an alleged assault against a minor in a hotel room, or alternatively sought particulars under Rule 25.10.

The court held that the plaintiffs were entitled at the pleading stage to make allegations relevant to negligence and vicarious liability, particularly where the defendants would possess the relevant knowledge regarding prior conduct.

The court declined to strike most of the impugned pleadings but found that certain paragraphs were duplicative or improperly framed as submissions rather than allegations.

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

Following two attendances related to applications concerning a limitation issue under the Real Property Limitations Act, the court determined that the matters would require viva voce evidence and should be heard with a related action.

The parties were invited to make written submissions on costs for the attendances.

Applying the discretionary principles governing costs under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court considered the conduct of the parties and the proportionality principle.

As the applications did not proceed on their merits and all parties contributed to the adjournments, the court concluded that no party should recover costs.

Each party was ordered to bear its own costs for the two appearances.

The applicant sought reimbursement of defence costs and a declaration that the respondent insurers owed a duty to defend an underlying action alleging damages from an oil spill at a residence.

The dispute turned on the interpretation of a contractors’ pollution liability policy requiring that covered operations commence on or after the retroactive date to trigger coverage.

The court held that the policy language unambiguously tied coverage to the timing of the insured’s operations rather than the pollution incident.

Because the alleged operations occurred before the retroactive date, the insured failed to establish that the claim fell within the grant of coverage.

The application was dismissed and the insurers were found to have no duty to defend.

Following a trial under the Construction Lien Act, the successful contractor sought substantial indemnity costs after obtaining judgment for unpaid construction work and successfully defending a counterclaim.

The court considered factors under Rules 49 and 57.01 of the Rules of Civil Procedure, including settlement offers, proportionality, the complexity of the proceeding, and litigation conduct.

The contractor did not achieve a result better than its Rule 49 offer to settle and therefore was not entitled to substantial indemnity costs.

The court nevertheless found the contractor overwhelmingly successful and awarded costs on a partial indemnity scale.

Costs were fixed at $108,943.67 inclusive of fees, disbursements, and HST.

The plaintiff brought a motion under Rule 36 of the Rules of Civil Procedure seeking leave to examine a former defendant and corporate executive before trial.

The witness had relocated outside Canada and the plaintiff argued the examination was necessary to preserve potentially crucial evidence regarding the hiring of a defendant.

The defendants opposed the motion, arguing that witnesses should generally testify at trial, particularly before a jury, and that alternative mechanisms such as letters rogatory were available.

The court held that Rule 36 was designed for circumstances where a witness may be outside the jurisdiction and could possess important evidence.

Leave was granted to conduct a pre‑trial examination of the witness, with the examination to be videotaped and undertakings completed beforehand.

Following a successful civil trial, the plaintiffs sought costs after beating their Rule 49 offer to settle.

The court considered Rule 49.10 of the Rules of Civil Procedure and the discretionary factors under Rule 57.01 and s. 131 of the Courts of Justice Act.

The plaintiffs were entitled to partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

The court emphasized that costs awards must be fair and reasonable to the unsuccessful party and are not a precise calculation of actual legal fees.

Costs were fixed globally at $75,000 inclusive of disbursements and taxes.

The plaintiff landlord brought a motion under Rule 5.04 to add a newly incorporated company as a defendant, alleging it received assets, business opportunities, and benefits through fraudulent conveyances after the tenant abandoned leased premises.

The proposed defendant argued that the claim was barred by the two‑year limitation period under the Limitations Act, 2002.

The court held that the presumption of discovery under s. 5(2) was rebutted because the proposed defendant corporation did not exist at the time of the underlying events.

Given uncertainty regarding when transfers occurred and when the plaintiff could reasonably have discovered the claim, the court found a triable issue of discoverability.

Leave was therefore granted to add the corporation as a defendant with permission to plead a limitations defence.

Following a successful summary judgment motion dismissing the plaintiff’s action, the defendant sought costs on a solicitor‑client or substantial indemnity basis relying on a provision in a release.

The plaintiff conceded entitlement to costs but argued that the provision applied only to third‑party proceedings and that the usual partial indemnity scale should apply.

The court held that the release provision did not apply to the litigation and that no misconduct justified elevated costs.

Applying Rule 57.01 factors, the court found the defendant’s partial indemnity claim reasonable and awarded costs accordingly.

Following earlier reasons dismissing competing motions relating to enforcement of an alleged settlement agreement and interlocutory relief in a corporate dispute, the court was asked to determine costs.

The moving party sought substantial costs relying on a prior offer to settle and alleged litigation conduct by another respondent.

The court held that neither side achieved meaningful success because the substantive dispute, including enforceability of the settlement agreement, would be determined at trial after the proceeding was converted into an action.

Given the largely technical successes and the likelihood that ultimate success would only be determined at trial, the court ordered that costs of the motions be costs in the cause.

No costs were awarded with respect to the parties’ competing claims for costs.