Civil Litigation - Plaintiff - SCJ

The moving party, a terminated project manager, brought motions to dismiss or stay claims advanced against it in two related construction actions on grounds of abuse of process and multiplicity of proceedings.

The responding parties had advanced identical counterclaims for deficiencies and delay across multiple proceedings arising from the same construction project.

The court found the counterclaim in the simplified procedure action was duplicative and an abuse of process, but accepted the responding parties' discontinuance of that claim.

The court declined to dismiss the separate balcony deficiency action, finding the issues sufficiently distinct and the parties not identical, but ordered that it be heard together with or immediately after the lien action in the interests of judicial economy.

Following the successful dismissal of the plaintiff's defamation claim under the anti-SLAPP provisions of the Courts of Justice Act, the defendant sought full indemnity costs of approximately $29,500.

The plaintiff argued that full indemnity costs were inappropriate because the claim had some merit and the defendant's statements were demonstrably false and reckless.

The court agreed with the plaintiff, finding that the lawsuit was not a traditional SLAPP and was driven by the defendant's recklessness.

The court rebutted the presumption of full indemnity costs and awarded the defendant partial indemnity costs fixed at $20,000.

The applicant sought an order to register and enforce a Certificate of Costs issued by the Supreme Court of British Columbia against the respondents.

The underlying British Columbia action involved a dispute over the management of a company, resulting in a judgment and an award of special costs against the respondents due to reprehensible conduct.

The Ontario Superior Court of Justice found that the British Columbia court had a real and substantial connection to the litigation and properly exercised jurisdiction.

As the respondents established no applicable defences, the court granted the order to register and enter the Certificate of Costs in Ontario.

The applicant lawyer brought an application seeking a declaration of coverage under a professional liability policy after being sued by a former client.

At a case conference, the court granted a sealing order on consent, noting that the insurer's position in the coverage dispute could affect the applicant's defence in the underlying action.

The court also established a timetable for the application and scheduled a one-day hearing.

The plaintiffs brought a motion pursuant to Rule 7.08 for approval of a settlement of the claims brought by the minor plaintiffs arising from a motor vehicle accident where the stepfather/father was struck by a vehicle while crossing a pedestrian crosswalk.

The proposed settlement was for $150,000, with $2,500 allocated to each minor plaintiff.

The court considered the liability risks, including the likelihood of contributory negligence and the application of the Family Law Act deductible.

The court found the settlement to be fair, reasonable, and in the best interests of the minor plaintiffs, and approved the settlement.

The defendants in a complex defamation action brought motions for the production of documents related to 'Project Maple Tree', an operation undertaken by foreign investigative agents (including Black Cube) retained by the plaintiffs.

The plaintiffs asserted solicitor-client and litigation privilege over the documents.

The court held that it had jurisdiction to hear the motions despite the stay provision in s. 137.1(5) of the Courts of Justice Act.

The court rejected the claims of solicitor-client privilege, finding the third-party investigators were not essential to the solicitor-client relationship.

The court also rejected the claims of litigation privilege for the vast majority of the documents, finding their dominant purpose was not legitimate litigation and that the 'Blank exception' applied because the agents engaged in improper conduct, including pretext stings on a former judge and opposing party employees.

The defendant in a medical malpractice action brought a motion to compel the plaintiffs to re-attend examinations for discovery to answer questions they previously refused.

The questions related to when the deceased and the plaintiffs first retained counsel and requested medical records, which the defendant argued was relevant to their limitation period defence.

The court granted the motion, finding that facts regarding the date a cause of action arises and when counsel was retained are relevant to discoverability and are not protected by solicitor-client privilege.

The plaintiffs were ordered to re-attend at their own expense.

The plaintiffs brought medical negligence claims against numerous physicians and a hospital following the death of a patient from an acute aortic dissection.

Seven of the defendant physicians moved for summary judgment, arguing the plaintiffs failed to produce expert evidence establishing the applicable standard of care, breach, and causation.

The court granted the summary judgment motions, finding that the plaintiffs' expert reports did not establish the essential elements of negligence against the moving defendants, and that this was not a clear case where expert evidence could be dispensed with.

The court also granted the plaintiffs' counter-motion to consolidate the actions and serve a jury notice, but dismissed their request for production of original hospital records, as those records had been destroyed in accordance with hospital policy after being digitized.

Following a successful motion by the plaintiff to amend her statement of claim, the parties made written submissions on costs.

The defendants argued they should receive costs based on an offer to settle or the principle that a party seeking to amend should pay the responding party's costs.

The court rejected the defendants' arguments, noting the plaintiff beat the offer to settle and the amendment was sought well in advance of trial, unlike the precedent cited by the defendants.

Costs were awarded to the successful plaintiff on a partial indemnity basis.

Following a 16-day jury trial where the plaintiff's claim against the police defendants was dismissed, the parties made written submissions on costs.

The defendants sought substantial indemnity costs of $296,602.70 based on an offer to settle and allegations of intentional torts against an officer.

The court declined to award substantial indemnity costs, finding the offer did not trigger such consequences and the allegations did not warrant them.

Costs were awarded to the defendants on a partial indemnity basis, fixed at $127,000 all-inclusive, after deductions for travel time and a second counsel.

This motion addressed whether the mother of an unborn child, whose father died due to negligence, could pursue a claim for pecuniary losses under section 61 of the Family Law Act (FLA) as a 'spouse.' The defendant sought summary judgment to dismiss the mother's claim, arguing that the definition of 'child' and 'spouse' in the FLA did not extend to an unborn child for the mother's benefit.

The court dismissed the defendant's motion, finding that the mother was entitled to pursue her claim under section 61 of the FLA, consistent with the Act's remedial nature and the legal fiction of a child *en ventre sa mère*.

Multiple purchasers of commercial condominium units alleged misrepresentation and overcharging by the developer and sought interlocutory relief preventing the developer from disposing of its remaining assets pending trial.

The moving parties argued the developer had limited assets and that dissipation would frustrate recovery of any judgment.

The court held that pre‑judgment restraint of assets is an extraordinary remedy requiring a strong prima facie case, evidence of asset dissipation outside the ordinary course of business, and proof of irreparable harm.

The evidence did not establish that the developer was disposing of assets improperly or that irreparable harm would result.

The motion to restrain disposition of assets was dismissed.

During a civil jury trial for defamation arising from a televised investigative documentary, the media defendants sought a ruling that the plaintiff’s claim for invasion of privacy should not be put to the jury.

The defendants argued that the Personal Information Protection and Electronic Documents Act constituted a complete legislative scheme precluding a common law privacy claim and that the tort of intrusion upon seclusion did not apply to journalistic publication.

The court held that PIPEDA does not oust the development of common law privacy claims and that media defendants are not categorically immune from liability for intrusion upon seclusion.

However, the scope of such claims is limited where journalistic activity engages freedom of expression and established defamation defences.

The court concluded that a properly instructed jury could potentially find an unlawful intrusion and therefore allowed the privacy claim to proceed to the jury with limiting instructions.

In a defamation trial arising from a televised investigative report, the plaintiff moved to prevent the defendants from relying on the defences of fair comment and responsible communication before the jury.

The court considered the governing principles from the Supreme Court of Canada in WIC Radio Ltd. v. Simpson and Grant v. Torstar Corp., as well as the gatekeeping role of the trial judge when determining whether a defence should be left to the jury.

Applying the evidentiary threshold described in Boland v. The Globe and Mail, the court held that the question is whether there is any evidence upon which a jury could find the defence established.

The court found that there was ample evidence supporting both defences and that disputes about credibility and weight were matters for the jury.

Accordingly, the plaintiff’s request to remove those defences from the jury’s consideration was dismissed.

During a defamation trial arising from a documentary alleging scientific fraud, the defendants sought to introduce written interrogatories from a separate civil proceeding in Newfoundland and Labrador involving the plaintiff and a former research nurse.

The plaintiff objected, arguing that admission would violate the implied undertaking rule governing discovery materials from other litigation.

The court held that the defendants were not parties bound by the undertaking in the Newfoundland action and that, in any event, the common law general inclusionary rule favours admission of relevant evidence even if improperly obtained.

The interrogatories were found potentially relevant to credibility and to the defendants’ defences of fair comment and responsible journalism.

The court therefore admitted the interrogatories into evidence.

The plaintiffs sought damages for breach of contract and unjust enrichment arising from development credits issued by a municipality after road construction on land previously owned by the plaintiffs.

The land was sold multiple times, and the ultimate purchaser obtained a building permit and received the development credits.

The court applied the Supreme Court of Canada’s three‑part test for unjust enrichment and found that although the defendant received a benefit and the plaintiffs suffered a corresponding deprivation, recovery should be denied.

The court concluded that the reasonable expectations of the parties defeated the claim because the defendant paid a premium for the land reflecting the credits and had no knowledge that the credits were intended for the plaintiffs.

Two related actions arising from a motor vehicle accident involved disputes over defence medical examinations.

In the tort action, the defendant’s insurer sought a psychiatric defence medical examination, while in the separate action against the plaintiff’s own insurer the plaintiff sought an order that the same examination would serve both defendants.

The court held that the insurers were adverse in interest because each could attribute the plaintiff’s ongoing psychological condition to the other’s conduct, particularly in light of allegations that the insurer’s handling of accident benefits exacerbated the plaintiff’s injuries.

The court further held that adversity between co‑defendants is not a necessary precondition to separate defence medical examinations; the governing consideration is fairness in the adversarial process.

The third party insurer was permitted to conduct the psychiatric examination and the plaintiff’s motion to bind the other insurer to that examination was dismissed.

Following the granting of summary judgment enforcing minutes of settlement and dismissal of a motion to amend pleadings, the successful party sought substantial indemnity costs exceeding $317,000, alternatively partial indemnity costs of approximately $205,000.

The opposing parties argued that substantial indemnity costs were inappropriate and that the fees claimed were excessive.

The court held that substantial indemnity costs were not justified but awarded costs on a partial indemnity basis.

Significant reductions were applied to the bill of costs due to duplication of effort among multiple counsel, excessive hours, and unreasonable expectations for certain attendances.

The court ultimately assessed partial indemnity costs at $145,258.54 plus HST and disbursements.

Ontario-resident plaintiffs sued a London hotel in Ontario after a slip and fall in a hotel bathroom during a vacation in the United Kingdom.

The defendant hotel moved to dismiss the action for lack of jurisdiction.

Applying the presumptive connecting factors set out in Club Resorts Ltd. v. Van Breda, the court held there was no real and substantial connection between Ontario and the dispute.

The hotel had no office, employees, or targeted marketing in Ontario, and the mere fact that the hotel could be booked through a Canadian travel rewards website did not establish that it carried on business in the province.

The court also found that no contract connected with the dispute was formed in Ontario.

Following dismissal of the defendants' summary judgment motion, the court determined the plaintiff's entitlement to costs.

The court applied rule 57.01 of the Rules of Civil Procedure and assessed objections to the plaintiff's bill of costs, including pre-motion entries, client communications, clerical work, and factum preparation time.

The court rejected a substantial indemnity award but found the claimed partial indemnity fees and disbursements were within the range the unsuccessful moving parties should reasonably have expected.

Costs were awarded to the plaintiff on a partial indemnity scale in the amount of $36,330 plus disbursements of $2,567.21, inclusive of applicable taxes.