Civil Litigation - Defendant - SCJ

The respondent father moved to change child support orders from 2007, seeking recalculation and retroactive reduction based on changed circumstances and alleged double-dipping by FRO.

The applicant mother opposed the motion.

The court dismissed the father's motion, finding he failed to provide admissible evidence of a material change in circumstances or new evidence, and that his claims of physical limitations and misrepresentation of income were unsubstantiated and not properly before the court.

The court emphasized the payor's burden to prove a material change and the inadmissibility of unsworn evidence.

The defendants brought a motion to strike the claim of a corporate plaintiff, Lake View Town Development Inc., alleging incorrect identification and lack of proper authorization.

The plaintiffs argued the motion was abandoned due to the defendants' failure to properly confirm it under Rule 37.10.1.

The court found that the defendants' counsel failed to confer with opposing counsel, falsely represented in Form 37B that they had, and failed to amend their motion materials as previously directed.

Consequently, the motion was deemed abandoned, and the plaintiffs were awarded costs.

The defendants moved for summary judgment to dismiss the plaintiff condominium corporation's action, which included claims for unpaid common fees, an underfunded reserve fund, and breach of an oral contract regarding legal fees.

The court granted summary judgment dismissing the claims for unpaid common fees (due to being statute-barred under the Limitations Act) and the oral contract for legal fees (finding no binding agreement due to lack of consensus and consideration).

However, the motion for summary judgment was dismissed for the claim regarding the underfunded reserve fund, as the court found a genuine issue requiring a trial and confirmed the condominium corporation's standing to pursue this claim on behalf of unit-owners.

The plaintiffs brought a motion seeking reconsideration and amendment of a prior endorsement that approved a minor's settlement in a tort action.

The motion sought to clarify or correct findings regarding the settlement quantum, structured settlements for minors, and the enforceability of contingency fee and referral fee agreements.

The court dismissed the motion for reconsideration, except for a minor accidental slip, reaffirming the narrow scope for judicial reconsideration of decisions before formal judgment entry, emphasizing that such motions are generally not a substitute for appeal.

The plaintiffs brought a motion to approve a settlement for a minor plaintiff's personal injury claim.

The court dismissed the motion, citing two primary concerns: the minor's litigation guardian (his father) was also acting as counsel for the plaintiffs, violating Rules 7.05(3) and 15.01, which require a litigation guardian to be represented by a lawyer.

Additionally, the litigation guardian was also an FLA claimant, creating a potential conflict of interest as he had a personal stake in the settlement allocation, which was not adequately explained.

The court emphasized the necessity of independent legal representation and a dispassionate assessment to protect the minor's best interests.

Following a motion for further document production where the defendant was largely successful, both parties sought costs.

The defendant claimed approximately $16,000 on a partial indemnity basis, while the plaintiff argued for a portion of his costs.

The court found the defendant's claimed costs grossly excessive for a simple production motion and fixed costs at $3,000 payable by the plaintiff, with an extended time to pay due to the COVID-19 pandemic.

Following a motion to compel answers to undertakings and refusals from examinations for discovery, both parties sought costs.

The defendants had breached a consent timetable order by failing to answer undertakings for over 17 months, only providing answers in their responding materials.

The Master awarded the plaintiff $2,000 in costs, noting the motion was necessary to compel the undertakings and the defendants provided no satisfactory explanation for their delay.

This costs endorsement followed a successful motion by the defendants to transfer an action from Perth to Oshawa.

The court found the defendants' requested costs of over $12,000 to be excessive for a straightforward, in-writing motion within a Simplified Procedure action.

The court awarded all-inclusive costs of $2,500, payable by the plaintiff to the defendants.

The applicant sought a declaration of invalidity for the testator's 2007 will on grounds of lack of testamentary capacity and undue influence.

The court found suspicious circumstances regarding the 2007 will, shifting the burden of proof to the respondents.

It was determined that the testator lacked testamentary capacity when executing the 2007 will, leading to its invalidation.

The 2006 will was consequently restored as the true last will and testament.

The claim of undue influence was not established.

The Canadian Hearing Society (CHS) brought a motion seeking to dismiss the application of the corporate applicant, The Campaign for the Inclusion of People who are Deaf and Hard of Hearing (the "Campaign"), for lack of standing, and to stay the application of the individual applicants, Ian Silver and Keith Golem, pending arbitration.

The court found that the Campaign was not a "complainant" under the Canada Not-for-Profit Corporations Act as it lacked a private right and reasonable expectation, and its representative authority was questionable.

The court also determined that the individual applicants' oppression claims were subject to arbitration clauses in the CHS by-laws.

Consequently, the Campaign's application was dismissed, and the Individual Applicants' application was stayed pending arbitration.

Costs were awarded to the CHS.

Alfrida Gina Trezzi sought a declaration that she was a 50% owner of Across Canada Construction Ltd. (ACC) shares.

Albert Trezzi opposed, arguing her claim was statute-barred and that she was not a shareholder.

The court dismissed the limitation period argument.

However, the court found no evidence that ACC ever issued shares to Gina, despite unexecuted organizational documents suggesting a 50/50 split with Peter Trezzi.

The court rejected the application of statutory presumptions under the Business Corporations Act and Securities Transfer Act, concluding Gina failed to prove her ownership claim.

Albert's cross-application for a declaration that Peter's estate owned all shares was also declined as the hearing only addressed Gina's alleged ownership.

Alectra Utilities Corporation sought to set aside an arbitration award of $12.3 million in favour of Solar Power Network Inc. (SPN), while SPN sought to enforce it.

The arbitration arose from a dispute over the termination of a Fee-In Tariff Programme agreement (PAMA) by Alectra's predecessor, PowerStream, which the arbitrator found to be in bad faith.

The court upheld the arbitrator's jurisdiction to consider bad faith in the exercise of a contractual right, finding that the PAMA's "sole discretion" and "not subject to dispute" clauses did not insulate bad faith termination.

However, the court found the arbitrator exceeded his jurisdiction by awarding damages for loss of profits, as the PAMA explicitly excluded such damages for breaches of covenant, and SPN's claim was deemed a breach of an implied covenant of good faith.

Alectra's application to set aside the award regarding damages for loss of profits was granted, and SPN's application to enforce the award was denied.

The applicants sought a declaration that the respondent's proposed mandatory conversion of outstanding convertible preferred shares would contravene its Articles of Continuance.

The central issue was the interpretation of the "Liquidity Condition" within the Mandatory Conversion Provision, specifically whether the average daily trading volume should be restricted to the Toronto Stock Exchange (TSX) alone or include all trading reported in the TSX Composite index (which aggregates trading from TSX and alternative trading platforms).

The court, applying principles of statutory and contractual interpretation, found that the Liquidity Condition should include all transactions reported in the TSX Composite, thereby dismissing the applicants' request for a declaration and their related oppression claim.

The Applicants, ICP and JCP, each sought the appointment of an arbitrator under the Arbitrations Act, 1991, for disputes arising from a share offer and acceptance.

The court addressed whether the arbitrations should be consolidated, the appropriate size of the arbitration panel (single vs. three arbitrators), and the composition of the panel, including issues of res judicata regarding a prior ruling on panel size and reasonable apprehension of bias concerning a nominated arbitrator.

The court determined that separate arbitrations were required for QSA and PSA disputes, that a three-member panel was intended by the QSA, and appointed Mr. Ferrier and Mr. Scott to the QSA panel, rejecting Mr. Cunningham due to apprehension of bias.

A law firm sought orders permitting enforcement of two Certificates of Proof of Claim obtained under the former Creditors’ Relief Act by issuing writs of seizure and sale against a former client for unpaid legal accounts arising from matrimonial litigation.

The debtor argued the certificates were invalid due to breaches of the Solicitors Act, including commencing recovery proceedings while accounts were under assessment and bringing a claim within one month of delivering a bill.

The court held that proceedings under the Creditors’ Relief Act constituted an “action” for the purposes of the Solicitors Act.

As a result, the first certificate was a nullity due to breach of s. 6(4), while the second certificate was partially unenforceable because part of the claim violated s. 2(1).

The sheriff was directed to enforce the second certificate only for the reduced amount calculated by the court.

The plaintiffs brought a motion to compel production of a medical report following a defence medical examination conducted by a paediatric neurologist.

The defendant refused to produce the report on the basis that the examination was incomplete and that the expert could not provide a fair and objective opinion due to the circumstances of the assessment and subsequent interview.

The court considered Rule 33.06 of the Rules of Civil Procedure, which requires an examining health practitioner to prepare and provide a written report after conducting an examination.

The court held that once the examination occurred, the rule imposed a mandatory obligation to produce a report, regardless of concerns about completeness.

The expert could qualify the report and explain limitations, but production remained required.

The court heard a motion by defendants to dismiss a property ownership action and an application to declare the opposing litigant a vexatious litigant under the Courts of Justice Act.

The action attempted to re‑litigate ownership of a Toronto property that had been definitively resolved in earlier proceedings dating back to 1998.

The court held the claims were barred by issue estoppel, abuse of process, missed court‑ordered deadlines, and expired limitation periods under the Limitations Act, 2002.

Given the litigant’s extensive history of repeatedly initiating unsuccessful and duplicative proceedings over decades, the court also found the statutory criteria for a vexatious litigant designation were satisfied.

The action was dismissed and the respondent was declared a vexatious litigant.

The plaintiff contractor challenged the rejection of its bid in a public tender for a highway construction project, alleging breach of the tendering process and seeking lost profits after the contract was awarded to a higher bidder.

The owner investigated the bid following a complaint and determined that the bidder had understated the declared value of imported steel, a factor used to calculate the adjusted tender price.

The court held that the owner was entitled to investigate compliance beyond the face of the bid and that the inaccurate declaration constituted a material non-compliance with the tender requirements, preventing formation of Contract A under the tendering framework.

The court further held that even if there had been a breach, the claim would have been barred by an exclusion clause in the tender documents.

The action was dismissed.

The defendant law society brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike a statement of claim without leave to amend on the basis that it disclosed no reasonable cause of action.

The plaintiff sought declarations challenging the law society’s regulatory authority over paralegals, alleging anti‑competitive conduct contrary to the Competition Act, bad faith regulation, and a violation of a constitutional right to access affordable justice.

The court held that the Competition Act does not apply to the actions of a provincial regulatory body acting within its statutory mandate and that compliance with validly enacted provincial legislation is presumed to be in the public interest.

The court further relied on Supreme Court of Canada authority confirming there is no broad constitutional right to access legal services.

The statement of claim was struck in its entirety without leave to amend.

The defendants brought a motion seeking an order compelling the plaintiff to undergo an in-home occupational therapy assessment in a personal injury action involving a substantial claim for future care costs.

The plaintiff opposed the motion, arguing that occupational therapists are not “health practitioners” under s. 105(1) of the Courts of Justice Act and that the proposed assessment was not required for diagnostic purposes.

The court reviewed conflicting authorities regarding whether non-medical expert assessments may be ordered only as diagnostic aids or under the court’s inherent jurisdiction in the interests of fairness.

Relying on Divisional Court authority recognizing the court’s inherent jurisdiction, the judge held that the assessment was appropriate to permit an independent evaluation of the plaintiff’s limitations and future care needs.

The motion was granted and the plaintiff was ordered to attend the in-home occupational therapy assessment.