Civil Litigation - Plaintiff - SCJ

The moving defendants sought an order requiring the plaintiff to post security for costs under Rule 56.01(1)(b) and (e) of the Rules of Civil Procedure, arguing that the plaintiff had another proceeding for the same relief pending in Ontario and that the action was frivolous and vexatious with insufficient assets to pay costs.

The court found that the plaintiff currently had sufficient assets to satisfy any costs award and dismissed the motion for security for costs.

The court also declined to consider the plaintiff’s cross-motion to strike portions of the affidavits and made no order as to costs.

The moving party, Onespace Unlimited Inc., brought a motion to strike portions of a reply affidavit sworn by the responding party's principal witness in advance of a summary trial.

The moving party argued the impugned statements contained improper argument, opinion evidence from a lay witness, and legal conclusions.

The court granted the motion in part, striking statements that constituted improper argument or unqualified expert opinion, while retaining statements that were factual observations or inextricably tied to the witness's overall impressions.

The plaintiff security company brought a Simplified Procedure action against the defendants for unpaid standby security services provided during a potential labour strike at the Sheraton hotel.

The court found that a contract was formed based on email exchanges between the parties and that the plaintiff performed the standby services.

The court awarded the plaintiff $32,950.80 in damages for the unpaid invoice.

However, the court dismissed the plaintiff's claims for punitive damages, personal liability against the individual defendant, and the tort of deceit, finding insufficient evidence of dishonesty or an independent actionable wrong.

The appellants appealed an arbitration award, arguing the arbitrator lacked jurisdiction and erred by proceeding in their absence after they refused to execute the arbitration agreement and did not attend the hearing.

The Superior Court of Justice dismissed the appeal, finding that the arbitrator correctly proceeded under section 27(3) of the Arbitration Act.

The court held that any jurisdictional objection must be raised before the arbitrator at the beginning of the hearing, which the appellants failed to do.

The applicants sought a declaration of ownership over a portion of the respondent's neighbouring property by way of adverse possession.

The respondent brought a cross-application for a declaration of trespass and an order to remove a fence built by the applicants on the disputed lands.

The court dismissed the adverse possession claim, finding that the applicants' predecessors in title did not have continuous, peaceful, or exclusive possession for the requisite 10-year period prior to the lands being converted to the Land Titles system in 1996.

Consequently, the court granted the respondent's application, declaring the fence a continuing trespass and issuing a mandatory injunction for its removal.

The plaintiff in a wrongful dismissal action brought a motion for production of the defendant's financial records, alleging the defendant fabricated cause for termination as a cost-saving measure during the COVID-19 pandemic.

The defendant brought a cross-motion for production of the plaintiff's employment insurance records to respond to her claim of financial distress.

The court dismissed the plaintiff's motion, finding the financial records were not relevant to proving the defendant's alleged bad faith agenda.

The court granted the defendant's cross-motion, holding that because the plaintiff put her financial pressure in issue, her income sources, including employment insurance, were relevant.

The plaintiffs in four related fraud actions brought motions seeking various procedural relief against the defendant, an undischarged bankrupt, including validation of service, authorization for future email service, and the fixing of a timetable.

The court dispensed with mandatory mediation on consent but declined to issue a blanket order for email service or to fix a timetable, finding such relief premature.

Service of the statements of claim on the defendant was validated effective the date of the motion hearing.

Relief regarding a co-defendant was dismissed due to insufficient evidence of attempted service.

The moving party sought an interlocutory injunction restraining the mortgagee respondents from listing a mortgaged property for sale following default and disputed redemption amounts.

Applying the RJR-MacDonald framework, the court held that no irreparable harm was established because the accounting issues could be addressed after sale and compensated in damages, and the property was not shown to be unique.

The court further held that the balance of convenience favoured the mortgagees, given admitted arrears, tax liens, evidence that the property was vacant and in disrepair, and the mortgagees' contractual enforcement rights.

The motion was dismissed, with costs payable to the respondents, though the court granted leave to bring an urgent application concerning payment into court to discharge the mortgage.

The plaintiff's former solicitors brought a motion to be removed from the record after the solicitor-client relationship broke down.

Before the motion was sworn, new counsel undertook to place herself on the record, rendering the motion moot.

Despite this, the former solicitors proceeded with the motion and sought $5,000 in costs.

The court dismissed the costs claim, finding the motion was unnecessary, foreseeably moot, and vastly disproportionate to the issues and amounts in question.

Following a trial where the plaintiff was awarded $41,900, the parties made written submissions on costs.

The plaintiff sought substantial indemnity costs of $47,711.63, while the defendant suggested partial indemnity costs of up to $25,181.

The court awarded partial indemnity costs of $30,434.14, noting that neither party's offer to settle triggered Rule 49 consequences.

The court reduced the plaintiff's costs due to a non-compliant expert report under Rule 53 and the failure to disclose acceptance of the defendant's expert quantification prior to trial.

The applicant applied to the Ontario Superior Court to recognize a summons issued by a Quebec provincial court for Ontario witnesses to testify via video-link in a Quebec securities trial.

The applicant relied on s. 152(4) of the Ontario Securities Act, the Interprovincial Summonses Act (ISA), and inherent jurisdiction.

The court dismissed the application, finding that s. 152(4) applies to administrative tribunals, not courts.

Furthermore, the ISA prohibits recognizing a summons from a province that lacks an absolute immunity provision, which Quebec does not have.

The court declined to exercise inherent jurisdiction to bypass the statutory immunity requirement.

The defendants brought a motion to compel answers to undertakings and refusals arising from the plaintiff's examination for discovery, and for re-attendance.

The parties resolved many issues by consent.

The primary contested issue was whether the defendants were required to pay the cost of obtaining records before they were produced.

The Master held that, absent an agreement, the defendants were not required to bear the cost of production at this stage, leaving the issue to the trial judge's discretion.

The Master also ordered the plaintiff to re-attend discovery if necessary, with parties bearing their own costs in the normal course.

Costs of the motion were awarded to the defendants in the cause.

The defendants brought a motion by way of a special case to determine whether their corporate representative was required to answer questions on discovery based on personal knowledge acquired outside his capacity as an officer or employee of the defendants.

The representative had previously worked for a related non-party corporation.

The court held that the representative is not required to answer questions based on personal knowledge acquired in another capacity, as doing so would effectively allow discovery of a non-party without leave.

However, if the representative possesses personal knowledge that the corporate defendant would be required to disclose anyway, he should provide it for efficiency.

The applicants sought leave to appeal an arbitration award that ordered them to pay $275,431 in damages and costs for breach of a real estate development agreement.

The respondent brought a cross-application to enforce the award.

The court dismissed the application for leave to appeal, finding that the arbitrator made no errors of law and that the issues raised regarding the Real Property Limitations Act and the assessment of damages were questions of mixed fact and law entitled to deference.

The court granted the respondent's application to enforce the award.

A carriage motion was brought to determine which of two competing groups of class action firms should conduct a proposed securities class proceeding against a mining company and its executives arising from alleged misrepresentations about a Chilean mining project.

One action advanced a single claim based on environmental misrepresentations, while the competing action advanced multiple claims including environmental, capital expenditure, accounting misrepresentation, conspiracy, and limitation‑related doctrines.

The court held that on a carriage motion the judge should not determine which claim is most likely to succeed but should assess whether claims are viable and free of obvious defects.

The competing action advancing multiple viable claims and demonstrating a substantially higher level of preparation was found to better serve the interests of the class.

Carriage was therefore granted to the more comprehensive and better prepared action.

The plaintiff condominium corporation brought a motion seeking substituted service of its statement of claim and leave to amend the statement of claim to correct drafting errors and add an architect to the title of proceedings.

The court considered whether the omission of the architect from the title constituted a misnomer.

Although the master found the misnomer test articulated by the Court of Appeal could be satisfied because the intended defendant was clearly identified within the body of the pleading, he held that a prior Superior Court decision limited the doctrine to cases where a party was misnamed rather than omitted from the title.

Instead, the court permitted the amendment as a correction of a technical irregularity because the allegations of negligence against the architect were sufficiently particularized in the pleading.

Leave to amend was granted and the time for service was extended.

Following an application seeking a declaration that a franchise agreement was of no force or effect and claiming damages, the court determined that credibility issues prevented resolution on an application record and converted the proceeding into an action.

The respondents sought costs on the basis that they were the successful parties on the application.

The applicant argued that the proceeding resolved no substantive issues and that costs should be determined by the trial judge.

The court held that neither party achieved success on the application and that the merits remained to be determined at trial.

Costs were therefore left to the discretion of the trial judge.

The plaintiff sought leave to maintain an action and amend its statement of claim after commencing proceedings while non-compliant with registration requirements under the Business Names Act and the Corporations Information Act.

The defendant moved to dismiss or permanently stay the action on the basis that the expired business name registration rendered the action a nullity.

The court held that proceedings commenced while non-compliant are not necessarily nullities and may continue if leave is granted under the statutes.

Applying a “gentle” interpretation of the legislation and finding that the non-compliance had been rectified and caused no prejudice or deception, the court exercised its discretion to grant leave and permit amendment of the claim.

The defendant’s motion to dismiss or stay the action was refused.

The plaintiffs brought a motion to set aside a registrar’s order dismissing their personal injury action as abandoned under rule 48.15(1) of the Rules of Civil Procedure.

The action had been commenced within the limitation period but was dismissed after the plaintiffs’ solicitor failed to serve the defendant, mistakenly assuming the insurer would accept service.

The solicitor also delayed more than two years before bringing the motion due to significant personal and professional difficulties.

Applying the contextual approach articulated by the Court of Appeal, the court weighed the explanation for delay, inadvertence, promptness, and prejudice.

Finding the delay was not deliberate and that the defendant suffered no prejudice, the court set aside the dismissal and extended the time for service.

Following a liability determination in favour of the plaintiff contractor, the court addressed a motion and cross‑motion concerning undertakings, refusals, and production relevant to the upcoming damages phase of trial.

The court limited relevance to matters affecting damages.

Several undertakings were ordered answered and certain disclosure ordered, including financial statements and notes referencing the litigation.

Some questions were declined as unnecessary or premature, and counsel were directed to attempt agreement on the scope of further production.

The moving municipality was largely successful and awarded partial indemnity costs.