Civil Litigation - Defendant - SCJ

Following a decision granting judgment in favour of the respondents on an application involving a mortgagee's right to sell property, the respondents sought costs of $270,292.15.

The applicant opposed costs on the basis that the respondents had provided a misleading answer to the court regarding the arm's-length nature of a proposed purchaser, which was subsequently assigned to an entity connected to an investor behind the second mortgage.

The court found the respondents' refusal to answer follow-up questions about the assignment and the relationship between the purchaser and the investor raised serious doubts about the accuracy of representations made during the proceeding.

Exercising its discretion to depart from the general principle that costs follow the event, the court declined to award costs to the successful party as a sanction for non-cooperation with the court.

Costs endorsement following the dismissal of an emergency application.

The applicant in the underlying proceeding had sought to enjoin the respondent city from exercising rights under an easement agreement, which had been confirmed by both the Superior Court and the Court of Appeal.

The court found the application constituted a collateral attack, an abuse of process, and was brought on unreasonably short notice with voluminous materials.

The city sought substantial indemnity costs of $25,150.41, which the court awarded in full, finding the amount proportionate given the unreasonable and ill-advised nature of the proceeding.

The defendants brought a motion for partial summary judgment in a construction lien action, seeking a determination that the Consumer Protection Act (CPA) applied to their residential cost-plus construction contract and that the plaintiff breached the CPA by exceeding budget estimates by more than 10 percent.

The court granted the motion in part, declaring that the CPA applies to the contract and that it is a 'consumer agreement'.

However, the court found genuine issues requiring a trial regarding whether the specific budget line items constituted 'estimates' under the CPA and whether the parties had agreed to amend those estimates during the project.

The plaintiffs brought a motion to amend their medical malpractice Statement of Claim to substitute Dr. Renato Natale for the pseudonym 'Dr. John/Jane Doe Gynecological Attending'.

The motion was brought after the presumptive expiry of the limitation period.

The court applied the 'litigation finger' test and found that a person with knowledge of the facts would be aware of the true identity of the misnamed defendant from reading the pleading.

Finding no undue prejudice to the proposed defendant, the court exercised its discretion to grant the amendment.

The respondent sought partial indemnity costs of $144,054.57 following a successful application.

The applicants argued for no costs, asserting the matter was a case of first impression, or alternatively $30,000.

The court held that costs should follow the cause because the parties were advancing private financial interests rather than a public interest.

Applying the Boucher principles, the court found the respondent's time spent was excessive compared to the applicants' and reduced the requested fees by approximately 40 percent, fixing costs at $75,000 plus HST and disbursements.

The applicant sought a stay of proceedings before a member of the Law Society Appeal Panel, with the decision reserved.

In this case management teleconference, the application against the Attorney General of Ontario was dismissed on consent.

The application against the Law Society was stayed on consent pending the release of the Appeal Panel member's decision on the stay motion.

The applicants brought a motion to compel an expert witness, retained by the respondent SORE, to answer questions refused during cross-examination on his affidavit.

The underlying application sought to quash municipal instruments authorizing Notices of Intention to Designate the applicants' property under the Ontario Heritage Act.

The refused questions related to statements the expert made alleging the applicants engaged in 'demolition by neglect'.

The court granted the motion, finding the questions had a semblance of relevance to the issues in the application and the credibility of the expert's evidence, and did not constitute an abuse of process.

The plaintiffs brought a motion seeking particulars of allegations in the defendant's statement of defence and an extension of time to deliver a reply.

The defendant argued that pleadings were closed and that an affidavit was required to support the demand for particulars.

The court found that a demand for particulars could be made regardless of the status of pleadings and that an affidavit was not required if the allegations were "general and bald." The court ordered the defendant to provide particulars regarding the value of the contract (paragraph 9 of the statement of defence) as it was deemed a material fact and a "general and bald" denial.

However, the court denied the demand for particulars for the remaining ten allegations, finding them sufficiently detailed or within the plaintiffs' knowledge, and that an affidavit was necessary for those.

The plaintiffs were granted an extension to deliver their reply.

The applicant, Kingston Learning Centres Inc. (KLC), brought a motion for an interlocutory injunction seeking the delivery of student and business records from the respondents, 2511541 Ontario Inc. and the Sunny family, and to prevent Meghana Sunny from holding herself out as an officer or director of KLC.

The court found that KLC demonstrated a strong prima facie case for entitlement to the records under a management agreement but failed to provide clear and convincing evidence of irreparable harm for any of the requested relief.

The motion was dismissed, and costs were fixed against KLC, noting that the motion was largely unnecessary due to entrenched positions.

The self-represented defendant emailed the court requesting to reschedule a case management conference set for September 14, 2018, without providing reasons for her unavailability.

The case management judge noted the defendant's repeated failure to follow directions to explain scheduling conflicts, characterizing her conduct as unacceptable passive-aggressive behaviour.

The court ordered the defendant to immediately provide particulars of any prior court commitment or other justification, failing which the conference would proceed as scheduled.

The defendants brought motions for summary judgment to dismiss the plaintiffs' action, the third party actions, and all counterclaims and crossclaims arising from a 2007 motor vehicle accident.

The plaintiffs did not oppose the dismissal of their action.

A third party opposed the dismissal of her counterclaim and crossclaim for contribution and indemnity.

The court held that because the main action was being dismissed, the third party's claims for contribution and indemnity had no basis in law and could not survive.

The motions were granted and all claims were dismissed.

The plaintiff brought a motion for summary judgment in a wrongful dismissal action.

The core issue was the enforceability of a termination clause that the plaintiff argued contracted out of the Employment Standards Act (ESA) by failing to explicitly provide for severance and benefit continuation.

The court found the termination clause unenforceable because it potentially provided less than the ESA minimums.

The plaintiff was awarded 8 months' reasonable notice at common law and compensation for lost bonuses during the notice period, as the bonuses were found to be an integral, non-discretionary part of his compensation.

The claim for lost benefits was dismissed due to a lack of evidence of actual loss.

The plaintiff brought a motion for a further and better affidavit of documents, arguing the defendant omitted documents and failed to sufficiently particularize surveillance reports in Schedule B. The plaintiff also sought to cross-examine the deponent.

The court dismissed the motion, finding no evidence of omitted documents and concluding the defendant provided sufficient particulars of the surveillance reports to allow the plaintiff to challenge the privilege claim after discovery.

The defendant brought a motion for an interlocutory injunction alleging copyright infringement, but later abandoned it after receiving assurances from the plaintiff regarding a revised manuscript.

The plaintiff sought costs of the abandoned motion forthwith under Rule 37.09(3).

The court declined to award costs forthwith, finding that the defendant was justified in bringing the motion initially and that the trial judge would be in the best position to determine costs and assess what efforts were thrown away.

Costs of the abandoned motion were reserved to the trial judge, with no costs awarded for the costs motion itself.

Intact Insurance appealed an arbitrator's decision dismissing its priority dispute against Federated Insurance regarding accident benefits for a claimant injured in a motor vehicle accident.

The arbitrator found that Intact failed to provide notice of the dispute to Federated within the 90-day period required by s. 3(1) of O. Reg. 283/95, and did not meet the test for relief under s. 3(2).

The Superior Court of Justice upheld the arbitrator's decision, finding no error in the determination that Intact had received a completed application by June 7, 2010, had sufficient time to identify Federated, and failed to conduct reasonable investigations within the 90-day period.

The appeal was dismissed.

The plaintiff sought certification of a proposed national class proceeding (excluding Quebec) concerning alleged premature failure of bulbs in certain model televisions, approval of a negotiated settlement under the Class Proceedings Act, 1992, and approval of class counsel fees.

The court held that the certification requirements under s. 5(1) were satisfied in the settlement context and that a class proceeding was the preferable procedure.

Applying the settlement approval framework from Dabbs v. Sun Life Assurance and related authorities, the court found the negotiated settlement fair, reasonable, and in the best interests of class members.

The settlement extended warranties and provided reimbursement for replacement bulbs subject to a claims process.

The court also approved class counsel fees as reasonable given the risks assumed and the results achieved.

Following a successful motion by non-parties to set aside an ex parte Anton Piller order, the court addressed the issue of costs.

The successful non-parties sought substantial indemnity costs, arguing that the order should never have been obtained and that their legal expenses were reasonable given the urgency and intrusiveness of the order.

The applicants opposed substantial indemnity costs and argued that the matter had been overworked and that no misconduct justified enhanced costs.

The court held that although the Anton Piller order had been set aside, there was no intentional or improper conduct in obtaining the ex parte order that would justify substantial indemnity costs.

Costs were therefore awarded on a partial indemnity basis.

The defendant brought a motion to set aside a noting in default and for leave to file a defence in an action for statutory accident benefits.

The defendant argued the plaintiff's claim was premature because mediation at the Financial Services Commission of Ontario (FSCO) had not occurred.

The court found the mediation was deemed failed due to the expiration of the 60-day prescribed time limit, meaning the plaintiff's claim was not premature.

The court dismissed the motion to set aside the noting in default because the defendant provided no explanation for its delay in responding to the statement of claim and no evidence of an intent to defend.

The defendant insurer appealed an order permitting the plaintiff to amend her statement of claim to add a claim for uninsured automobile coverage after the limitation period had expired.

The original pleading alleged damages caused by an underinsured motorist and did not plead material facts establishing an uninsured motorist claim under the Insurance Act.

The court held that the proposed amendment introduced a new cause of action outside the limitation period and that the original statement of claim did not contain sufficient material facts to support an uninsured coverage claim.

The court further found that allowing the amendment would cause uncompensable prejudice to the insurer, including the inability to pursue third-party claims against the alleged tortfeasors.

The Master’s order permitting the amendment was therefore set aside.

Two competing groups of plaintiffs brought carriage and stay motions regarding proposed class actions against Zimmer for allegedly defective hip implants.

The court considered the problematic of multiple class actions across Canada, including the differences between opt-in and opt-out regimes.

The court granted carriage to the McSherry action, which was coordinated with a certified British Columbia class action, and stayed the competing Mets, D'Anna, and Ducharme actions, finding this to be in the best interests of the class members.