Civil Litigation - Defendant - SCJ

The applicant mother brought a motion to change previous orders, primarily seeking continued child support and increased section 7 expenses for her 20-year-old son who graduated high school.

She argued the son was unable to withdraw from parental charge due to an autism spectrum disorder (ASD) and sought an advance ruling for the father's contribution to future post-secondary expenses.

The court found the mother failed to prove the son's inability to withdraw from parental charge due to disability, noting her lack of credible expert evidence and the son's demonstrated independence.

Child support was terminated effective August 31, 2023, and the mother was ordered to repay overpaid support.

Claims for increased section 7 expenses and speculative post-secondary contributions were dismissed.

The mother's request to vacate a permanent restraining order against her was also denied due to her history of non-compliance and vexatious conduct.

The plaintiff, Carmen Ranger, brought an action under the Occupiers' Liability Act for damages sustained from a slip and fall on ice in a pedestrian crosswalk at a shopping mall.

The defendants, including the property owner, property manager (Triovest), and snow removal contractor (Pioneer), were found collectively liable.

The court found that Triovest failed to implement a reasonable winter maintenance system, specifically lacking clear provisions for inspection, monitoring, and response to freezing rain, and failing to prioritize high-traffic areas like the crosswalk.

Pioneer also failed its implied duty to inspect and monitor the property and respond to icy conditions.

The court rejected the defendants' claim of contributory negligence by the plaintiff, finding her actions reasonable.

The plaintiffs brought a motion under Rule 59.06(2)(a) to amend a 2014 default judgment against the defendant Grocery Dayton to make the defendant Wakefern Food Corporation liable for the judgment.

This was the second time the plaintiffs brought this motion; the first was dismissed and upheld by the Court of Appeal.

Wakefern raised a preliminary objection of res judicata.

The court found that the motion sought the same relief as the previous motion and that the new evidence relied upon by the plaintiffs could have been discovered with due diligence or did not constitute an admission.

The court dismissed the motion based on the doctrine of res judicata.

The defendant insurer brought a motion to have the quantum of the plaintiff's property loss claim determined by the appraisal process under the Insurance Act, rather than by the court.

The plaintiff opposed, arguing the request was too late and would improperly bifurcate the trial, as the action also included claims for bad faith and punitive damages.

The court granted the motion in part, holding that the appraisal process is mandatory under the Insurance Act for determining the quantum of loss, regardless of the delay or the presence of other claims in the action.

The claims for recovery under the policy were stayed pending the appraisal.

Following a four‑week civil trial involving wrongful dismissal, oppression claims, and counterclaims for breach of fiduciary duty and misuse of confidential information, the court determined costs.

The plaintiff’s claim for damages exceeding $1 million was dismissed, although he succeeded in establishing that he had been terminated rather than having resigned.

The defendants’ $2 million counterclaim was largely unsuccessful except for minor reimbursement of approximately $300 in expenses.

Applying s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court found success divided but concluded the defendants were the more successful parties overall.

Partial indemnity costs were awarded to the defendants, reduced to reflect divided success, unnecessary litigation steps, and excessive defence costs.

A dispute arose between a second mortgagee and a subsequent mortgagee over entitlement to interest from the proceeds of sale of mortgaged property.

Prior to advancing funds and registering a third mortgage, the subsequent mortgagee received email assurances from the second mortgagee that the second mortgage was in good standing.

In fact, interest payments under the second mortgage had never been made and had been privately waived or deferred between the second mortgagee and the mortgagor.

The court held that the representations created an equitable estoppel preventing the second mortgagee from claiming interest arrears that were inconsistent with those assurances.

The second mortgagee was limited to interest accruing only after the last representation that the mortgage was current.

A commercial trucking company sought indemnity under an automobile insurance policy after its tractor unit was reported stolen.

The insurer denied the claim, alleging the insured provided false particulars and failed to disclose significant unrepaired damage and the true market value of the vehicle during the application process.

The court held the insurance broker acted as the insured’s agent and that the insured was bound by the contents of the signed application and OAF1 form.

Relying on s. 233(1)(a)(i) and (ii) of the Insurance Act, the court found the insured provided false particulars and knowingly failed to disclose material facts, which prejudiced the insurer’s underwriting decision.

The claim was therefore invalid and indemnity forfeited.

The defendants moved for summary judgment dismissing a motor vehicle personal injury action as statute-barred under the Limitations Act, 2002 after the statement of claim was issued 63 days after the two‑year anniversary of the accident.

The plaintiff argued that the claim was not discovered until later medical reports established that her injuries potentially met the serious impairment threshold under s. 267.5(5) of the Insurance Act.

The court held that the discoverability analysis requires knowledge that there is sufficient evidence to establish the statutory threshold, not merely a belief that a claim exists.

Given conflicting evidence about when sufficient medical evidence became available to support the threshold requirement, a genuine issue for trial existed regarding when the limitation period began to run.

The defendants’ summary judgment motion was dismissed and the plaintiff’s cross‑motion to amend the statement of claim to plead discoverability was granted.

The plaintiffs brought a motion seeking a declaration that several Guatemalan defendants were properly served with a fresh statement of claim outside Ontario or, alternatively, an order validating service.

The proceeding alleged a $400 million conspiracy and fraud causing damage in Ontario.

The court considered Rules 17.02 and 17.05(2) of the Rules of Civil Procedure governing service outside Ontario in non‑contracting states under the Hague Service Convention.

The court held that where the foreign jurisdiction is not a contracting state, parties may serve originating process using Ontario service rules rather than the foreign state's service regime.

Personal service on corporate defendants was valid, and service on individual defendants was validated under rule 16.08 because the claim came to their attention despite attempts to evade service.

The defendant brought a motion seeking production of outstanding undertakings from discovery, including employment, insurance, and medical records, production of photographs and Facebook content, and an order requiring the plaintiff to undergo a bone scan as part of an independent medical examination.

The court held that a party who undertakes to obtain records from non-parties must take reasonable follow‑up steps where appropriate.

The court ordered the plaintiff to follow up with certain third parties and to serve a supplementary affidavit of documents disclosing relevant photographs depicting her activities before and after the accident.

However, the request for full access to the plaintiff’s Facebook profile was denied due to lack of evidence that relevant documents had been omitted.

The court further ordered the plaintiff to undergo the bone scan recommended by the defence medical examiner, finding it necessary for trial fairness.

Following a seven‑day civil trial concerning a prescriptive easement and negligent misrepresentation regarding a shared waterline, the successful plaintiff sought costs exceeding $300,000 after obtaining a declaration that no easement existed and damages of $25,500 against one defendant.

The court held that the plaintiff was entitled to costs as the successful party and that her Rule 49 offer justified partial indemnity costs up to the offer date and substantial indemnity costs thereafter.

However, the court found the claimed fees and disbursements excessive and disproportionate to the result achieved, particularly given the plaintiff’s unsuccessful fraud and punitive damages claims and the large damages claim that was not proven.

Exercising discretion under Rule 57, the court reduced the fees by approximately 50% and disallowed certain expert and research disbursements.

Costs were allocated between the defendants in proportion to their responsibility for the issues at trial.

The plaintiffs sought partial indemnity costs following successful motions relating to enforcement proceedings against foreign state defendants.

The motions required complex investigation into assets in Canada and consideration of amendments to the State Immunity Act concerning state support for terrorism.

The court found no reason to depart from the general rule that costs follow the event and accepted that the plaintiffs’ counsel undertook significant investigative and expert consultation work.

The defendants’ conduct, including concealing assets to avoid claims, supported an award of costs.

The court ordered partial indemnity costs, inclusive of taxes and disbursements, payable jointly and severally by the defendants.

Following the dismissal of the plaintiff's motion to certify a class action regarding copyright in land surveyors' plans, the parties could not agree on costs.

The successful defendant sought approximately $496,000, while the plaintiff argued for no costs or a maximum of $80,000, citing the novel point of law and public interest involved.

The court found that while the case raised a novel point of law, it did not involve a matter of public interest.

Applying the principles for fixing costs on a certification motion, the court awarded the defendant $200,000 inclusive of fees, disbursements, and taxes.

The defendants brought a motion seeking a stay of the Ontario action on the basis of forum non conveniens under section 106 of the Courts of Justice Act, arguing that Qatar was the more appropriate forum.

The action arose from allegations that airline employees failed to warn the plaintiff about local laws regarding alcohol consumption by Muslims, leading to the plaintiff’s arrest, imprisonment, and corporal punishment in Qatar after a flight incident.

Applying the principles from Club Resorts Ltd. v. Van Breda, the court held that the moving parties failed to demonstrate that Qatar was clearly a more appropriate forum.

Several factors—including the residence of the plaintiff and his medical witnesses in Ontario, the airline’s business presence in Ontario, and the plaintiff’s contractual connection to Ontario—supported maintaining the proceeding in Ontario.

The motion to stay the action was dismissed.

The defendant employer brought a motion to strike portions of a statement of claim alleging wrongful dismissal, mental distress, defamation, and punitive damages.

The court held that the pleading failed to comply with Rules 25.06 and 25.11 of the Rules of Civil Procedure because it contained unsupported claims for damages and lacked material facts necessary to support allegations of mental distress, punitive damages, and defamation.

The court emphasized that pleadings must include concise statements of material facts rather than bare legal assertions.

Instead of striking only certain paragraphs or ordering particulars, the court struck the entire statement of claim with leave to file a fresh pleading within 14 days.

Following written reasons granting judgment to the applicant, the court determined the appropriate costs award.

The applicant sought substantial indemnity costs, arguing the respondents engaged in oppressive and unfair conduct and failed to respond to settlement overtures or to file costs submissions.

The court found the time spent by counsel and the claimed hourly rates to be reasonable, and accepted the disbursements claimed.

Given the respondents’ conduct and the fact that the application sought to enforce an entitlement already established in prior proceedings, the court concluded that a substantial indemnity award was justified.

Costs of $12,203.43 were fixed against the respondents jointly and severally.

Following a successful motion declaring that a commercial lease had been validly renewed, the receiver of a pharmacy business and the senior secured creditor sought recovery of their legal costs from the landlord.

The court considered objections that counsel time was excessive and that only one counsel should have participated, as well as a challenge to computerized legal research as a recoverable disbursement.

Applying the factors in Rule 57.01 of the Rules of Civil Procedure, the court held that the preparation time and participation of separate counsel were reasonable given the high financial stakes of the litigation.

Computerized legal research was also found to be a proper disbursement.

Costs were fixed at reduced amounts but substantially in favour of the successful parties.

The plaintiff sought to certify a class action against the Bank of Montreal (BMO) arising from a $77 million Ponzi scheme perpetrated by Salim Damji.

The plaintiff alleged that BMO knowingly assisted in Damji's breach of trust, knowingly received fraudulent funds, and was negligent in its receipt of these funds.

The court granted leave to bring the certification motion and found that the plaintiff met the first four criteria for certification under s. 5(1) of the Class Proceedings Act.

However, the court found the representative plaintiff's health issues and deficiencies in the litigation plan rendered the final criterion unsatisfied.

The certification motion was adjourned for 30 days to allow the plaintiff to address these deficiencies.

The plaintiff sought to certify a class action against the Bank of Montreal arising from a $77 million investment fraud perpetrated by Salim Damji.

The plaintiff alleged that BMO knowingly assisted in Damji's breach of trust, knowingly received fraudulent funds, and was negligent in its receipt of these funds.

The court found that the plaintiff satisfied the criteria for certification under s. 5 of the Class Proceedings Act, except for the requirement of a workable litigation plan.

The court adjourned the certification motion to allow the plaintiff to provide an acceptable litigation plan.

The moving party sought to set aside or stay an ex parte order granting summary judgment and specific performance of an agreement of purchase and sale concerning real property.

The court examined whether the order had been properly obtained under Rule 37.14 of the Rules of Civil Procedure after the moving party allegedly failed to file responding materials.

The court found that proper notice of the earlier motion had not been given to the solicitor of record and that the basis for the ex parte summary judgment order did not exist.

Given the procedural irregularities and the absence of a hearing on the merits of the crossclaim, it would be unjust to allow the order to stand.

The ex parte order was therefore set aside, subject to terms allowing the summary judgment motion to be re-scheduled and addressing the status of affidavits filed in the interim.