Civil Litigation - Defendant - SCJ

A negligence action arising from a fall suffered by an 80-year-old patient hospitalized at London Health Sciences Centre.

The patient was admitted with confusion secondary to a urinary tract infection and subsequently fell on August 15, 2015, resulting in discovery of an acute-on-chronic subdural hematoma requiring neurosurgery.

The patient never recovered her prior cognitive function and died in April 2021.

The court found that the defendant nurses breached the standard of care by failing to complete a Fall Risk Assessment and Intervention Flowsheet and failing to implement a documented toileting routine responsive to the patient's frequent urination needs.

However, the court dismissed the action because the plaintiffs failed to prove on a balance of probabilities that the fall caused the acute portion of the subdural hematoma, and failed to prove that the acute bleed changed the patient's treatment or clinical outcomes.

In a medical malpractice action, the defendant physicians brought a motion under Rule 7 of the Rules of Civil Procedure to declare the self-represented plaintiff a party under a disability and to appoint the Office of the Public Guardian and Trustee (OPGT) as his litigation guardian.

The court reviewed the plaintiff's conduct, including his failure to attend a court-ordered capacity assessment, his attempts to manipulate other capacity assessments, his lack of understanding of the civil litigation process, and his communications suggesting delusions.

The court found the plaintiff to be a party under a disability and appointed the OPGT as his litigation guardian.

Intact Insurance Company brought a motion to set aside a noting in default and for leave to deliver a statement of defence and counterclaim.

The plaintiffs had noted Intact in default without prior notice, despite Intact's counsel having served a notice of intent to defend and requested an indulgence.

The court found the plaintiffs' conduct inappropriate, the delay (if any) inconsequential, and no prejudice to the plaintiffs.

The motion was granted, the noting in default set aside, and Intact was given 30 days to file its defence.

Costs were awarded against the self-represented plaintiff, James McNair, due to his conduct.

The non-party Gore Mutual Insurance Company brought a motion under Rule 37.14(1) to vary a previous production order (the "Doi Order"), arguing that its failure to appear at the original motion was due to accident or mistake.

The plaintiff opposed the motion.

The court dismissed Gore Mutual's motion, finding that it failed to establish that its non-appearance was due to accident or mistake, but rather due to carelessness and lack of diligence in processing court documents.

The court also found that Gore Mutual failed to bring its motion forthwith and that the general claim of prejudice lacked merit, especially given the implied undertaking rule.

Following a successful motion for summary judgment, the plaintiff sought full indemnity costs of $101,516.82 against the self-represented defendant, relying on a contractual guarantee and the defendant's aggressive litigation conduct.

The defendant argued the amount was disproportionate and sought to limit costs to $26,376.91 on a partial indemnity basis.

The court found the defendant's conduct, while aggressive, was not reprehensible, scandalous, or outrageous, and the guarantee did not specify the scale of costs.

The court awarded the plaintiff partial indemnity costs fixed at $68,527.11.

The applicant condominium corporation sought declarations, injunctions, and compliance orders requiring the respondent unit owners to wear masks in the common elements, alleging their refusal constituted a dangerous activity under s. 117 of the Condominium Act.

The respondents claimed medical exemptions under provincial regulations and municipal by-laws, which did not require proof of exemption.

The court balanced the competing rights, finding that while the respondents could transit through common elements for ingress and egress without a mask due to their claimed exemptions, wandering or exercising on other floors without a mask constituted a dangerous activity.

The court issued a compliance order and permanent injunction restricting the respondents' unmasked movement to direct ingress and egress.

The defendant brought a motion to discharge a certificate of pending litigation (CPL) granted ex parte to the plaintiffs over a condominium redevelopment property.

The defendant argued the plaintiffs failed to make full and fair disclosure by omitting a standard form agreement of purchase and sale and relevant emails.

The court found the plaintiffs complied with their disclosure obligations, as the inclusion of the standard agreement was a triable issue rather than a deliberate omission.

The court also found the property was unique to the plaintiffs under the Dhunna factors.

The motion to discharge the CPL was dismissed.

The self-represented plaintiff brought a motion to set aside a previous order that dismissed her motion to transfer a Small Claims Court action to the Superior Court.

The previous motion was dismissed because the plaintiff failed to appear when called, having been directed to the wrong courtroom.

The court held that Rule 37.14, rather than Rule 38.11, applied because the dismissed motion was interlocutory.

Emphasizing the principles of access to justice and the liberal interpretation of the Rules, the court set aside the dismissal order and permitted the plaintiff to reschedule her transfer motion.

The defendant, Toronto Transit Commission (TTC), brought a motion to enforce an alleged settlement agreement reached via email after two mediations.

The plaintiffs denied a binding settlement, arguing that HST was not included in the agreed-upon amount.

The court found that the defendant's email constituted a new offer, which the plaintiffs unconditionally accepted, and that the settlement amount was inclusive of HST.

The court enforced the settlement, finding no compelling circumstances or evidence of mistake to justify declining enforcement.

The client, a lawyer himself, brought a motion to set aside a registrar's order for the assessment of his former law firm's account.

The client argued that the assessment officer lacked jurisdiction under section 3 of the Solicitors Act because the retainer was disputed, as he had been quoted a flat fee but was billed on an hourly basis after his real estate transaction became complicated.

The court dismissed the motion, finding that the client did not dispute the existence of the retainer or that the work was authorized and performed satisfactorily.

The court held that the disagreement was solely over the quantum of the fees, which falls squarely within the jurisdiction of the assessment officer.

The plaintiff moved for directions to pre-emptively dismiss or stay the defendant Dr. Shah's motion for summary judgment and to prevent cross-examination of the plaintiff's expert witnesses.

The plaintiff argued the case was complex, the defendant had no realistic prospect of success, and the process was burdensome and raised access to justice concerns.

The court dismissed the plaintiff's motion, finding that the summary judgment motion was not an abuse of process and that the defendant had the right to complete the evidentiary record, including cross-examining experts.

The court imposed terms to ensure the summary judgment motion proceeded as scheduled.

The court fixed partial indemnity costs following successful summary judgment motions.

The defendant's motion was unsuccessful, while the plaintiff's was successful, with findings that the defendant's words were untrue, unwithdrawn, and demonstrated malice.

The plaintiff sought elevated costs, citing the defendant's unreasonable conduct and bad faith, and more favourable settlement offers.

The court found no unreasonableness or bad faith in the defendant's cross-motion or delay, and the plaintiff's settlement offers were not Rule 49 compliant.

However, considering the defendant's demonstrated malice and failure to apologize, the court awarded reasonably generous partial indemnity costs to the plaintiff.

An application to approve a settlement for a plaintiff under disability, injured in a motor vehicle accident, was adjourned by the Ontario Superior Court of Justice.

The court found the submitted affidavits from the litigation guardian and solicitor to be inadequate, lacking sufficient detail regarding the plaintiff's injuries, their current status, and the justification for the proposed legal fees, particularly concerning any contingent fee arrangement.

The court emphasized its responsibility to ensure the settlement is in the best interests of the party under disability and that legal rights are not compromised without proper compensation, and that fees are justified.

Further affidavits were directed to address these deficiencies.

The moving party police association brought a motion seeking dismissal of a civil action against it on the basis that the claims were statute‑barred, disclosed no reasonable cause of action, and were frivolous and vexatious.

The self‑represented plaintiff had sued numerous defendants, including police, government officials, and agencies, alleging false arrest, malicious prosecution, conspiracy, Charter breaches, and related torts over a lengthy period.

The court held that most allegations against the association were barred by the two‑year limitation period under the Limitations Act, 2002.

The remaining allegations failed to disclose material facts capable of establishing any recognized cause of action against the association.

The pleadings were struck and leave to amend was denied.

The defendant brought a motion to dismiss a breach of contract action on the basis that the plaintiff lacked legal capacity because he was an undischarged bankrupt.

The court considered the effect of s. 71 of the Bankruptcy and Insolvency Act and the principle that property and causes of action vest in the trustee upon bankruptcy.

The plaintiff argued that the claim related to after-acquired property and could therefore be pursued personally.

The court rejected this argument, holding that an undischarged bankrupt cannot commence or maintain an action concerning property interests vested in the trustee, subject only to narrow statutory exceptions not applicable here.

The action was declared a nullity and dismissed as an abuse of process, prior orders obtained without notice were set aside, and substantial indemnity costs were awarded.

Following the resolution of an application challenging a regulation after the respondents agreed to amend it, the court determined the appropriate quantum of costs payable to the applicants.

The applicants sought costs on a substantial indemnity basis, arguing the litigation involved costs thrown away and abusive conduct by the respondents.

The court rejected both arguments, holding the matter resembled a typical settlement scenario and that the respondents had not acted unreasonably.

The court also rejected requests to exclude negotiation time and expert-related costs from the applicants’ bill of costs, but found the total amount claimed excessive.

Applying the factors under Rule 57.01(1) of the Rules of Civil Procedure, the court awarded reduced costs on a partial indemnity basis.

Following jurisdictional motions that resulted in a stay of the action against several foreign defendants, the court determined the appropriate costs payable by the unsuccessful plaintiffs.

The defendants sought substantial partial indemnity costs reflecting extensive counsel time for both preliminary litigation steps and the jurisdictional motions.

Applying s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court emphasized that costs must be fair and reasonable for the unsuccessful party to pay, rather than matching the successful party’s actual expenditures.

The court reduced certain pre‑motion time allocations and adjusted hourly rates but allowed full time claimed for the jurisdictional motions due to their complexity and importance.

Costs were awarded to the moving defendants in specified amounts inclusive of fees, HST, and disbursements.

An Ontario plaintiff injured while visiting New York commenced an Ontario action against the New York driver and her own insurer under the OPCF 44R underinsured motorist coverage.

The insurer asserted a cross‑claim for indemnity against the driver.

The driver moved to permanently stay the claim and cross‑claim for lack of jurisdiction simpliciter and alternatively on forum non conveniens grounds.

Applying the framework in Club Resorts Ltd. v. Van Breda, the court held that none of the recognized presumptive connecting factors for tort jurisdiction were present, as the defendant resided in New York, carried on no business in Ontario, and the accident occurred in New York.

The insurer’s argument that the driver was a necessary party to its cross‑claim did not create a presumptive connecting factor.

The Ontario action and cross‑claim were permanently stayed.

Following a long-running dispute concerning compliance with a prior court order, the matter returned to the court after cross-motions and prior contempt proceedings.

The plaintiffs sought enforcement of an earlier judgment while the defendants attempted to negotiate a compromise regarding implementation.

Although the court facilitated judicial ADR in hopes the parties’ engineers could reach a practical solution, no agreement was reached until the defendants ultimately accepted the plaintiffs’ engineer’s proposal.

The court held that the plaintiffs’ preparation to enforce the prior order was necessary in the circumstances.

Partial indemnity costs of $4,800 were awarded to the plaintiffs.

Following reasons granting summary judgment and dismissing the action, the court determined the issue of costs.

The successful defendant sought $5,000 in partial indemnity costs despite incurring substantially higher expenses in defending the action and bringing the summary judgment motion.

The self-represented plaintiff sought $65,000 in costs despite losing the motion and the action.

The court reiterated that costs generally follow the event and serve an indemnity function while encouraging settlement.

The court fixed costs payable to the defendant at $5,000.