Civil Litigation - Plaintiff - SCJ

The applicant, YMCA of Greater Toronto, sought to extend and amend a Norwich Order previously granted against several banks to investigate an alleged $2.2 million fraud involving the Canada-Ontario Job Grant program.

The applicant also sought to extend the time for service of its Statement of Claim against the alleged fraudsters to avoid tipping them off before the investigation was complete.

The court granted the extension of the Norwich Order and amended it to include accounts that transferred funds to or from the known accounts.

The court also granted the extension of time to serve the Statement of Claim, finding it in the interests of justice.

The representative plaintiff, a Tim Hortons franchisee, and the defendant franchisor sought approval of a settlement agreement in two companion class actions concerning the use of an Ad Fund and the formation of a franchisee association.

The motion also sought approval of class counsel fees and litigation funding agreement amounts.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class, despite one objector's concerns.

The settlement included monetary payments for marketing initiatives, legal costs, and significant non-monetary benefits such as enhanced transparency, audit rights, and freedom for franchisees to negotiate contracts.

The court also approved the requested fees for the litigation funder and class counsel, deeming them reasonable given the overall settlement value.

The plaintiff brought a refusals motion to compel the defendant, Hockey Canada, to answer questions and produce documents related to its insurance policy and claims history.

The plaintiff, a former high-performance athlete, suffered quadriplegia and alleged Hockey Canada breached its duty to procure adequate insurance.

The court ordered Hockey Canada to produce un-redacted claims bordereaux and other reports, finding they were not protected by litigation or settlement privilege and that post-incident information could be relevant as remedial conduct.

However, the court required the plaintiff to serve notice on non-parties if seeking disclosure of their personal health information.

The plaintiff brought an action for wrongful dismissal and human rights violations after her employment was terminated while on maternity leave.

The defendant moved to strike a paragraph in the statement of claim alleging that the defendant had a history of terminating pregnant women under the guise of restructuring, citing a specific similar incident.

The court dismissed the motion, finding that the similar fact evidence was properly pleaded, had significant probative value regarding the claims for human rights violations and punitive damages, and was not scandalous, frivolous, or vexatious.

The defendants moved to amend their statement of defence and for an order requiring the plaintiff to post further security for costs.

The plaintiff, who claimed to be impecunious, had previously been ordered to post a modest amount of security.

The defendants discovered that the plaintiff had entered into an assignment agreement with a paralegal corporation to fund the litigation in exchange for 15% of any recovery.

The court allowed the amendments to the statement of defence.

The court also found that the plaintiff failed to disclose the funding agreement on the initial motion, breaching the duty of candour required when pleading impecuniosity.

Applying the principle of proportionality, the court ordered the plaintiff to post further security for costs in staged amounts.

The moving party sought leave to amend its pleading in a construction deficiencies action arising from a condominium conversion project, including adding a structural engineering firm as a new defendant and pleading economic loss based on dangerous defects.

The court held that, even assuming a Bird-type pure economic loss claim was available, the proposed claim against the new defendant was discoverable at least by the time the original statement of claim was issued, and was therefore barred by the two-year limitation period under the Limitations Act, 2002.

The later expert report did not postpone discoverability, as certainty and a comprehensive understanding of the claim were not required.

Leave to add the proposed defendant was refused, while other unopposed or consented amendments were allowed.

Wal-Mart Canada Corp. sought a declaration that Intact Insurance Company had a duty to defend and indemnify it in a negligence action.

The underlying tort action involved a plaintiff tripping over cracked pavement in Wal-Mart's parking lot.

Intact argued that its policy, which named Wal-Mart as an additional insured under a contract with C.L. & Sons Property Maintenance, did not cover the claim as C.L. & Sons was only contracted for litter pick-up, not pavement repair.

The court found that the maintenance agreement's scope of work included reporting deficiencies affecting pedestrian safety, and the insurer's own description of C.L. & Sons' business operations included "Maintenance and inspection." Therefore, the court declared that Intact had a duty to defend Wal-Mart.

However, Wal-Mart's request to appoint its own counsel due to a potential conflict of interest was dismissed, with the court directing standard insurer procedures for separate counsel and adjusters for Wal-Mart and C.L. & Sons.

Costs were awarded to Wal-Mart.

The plaintiffs brought a motion to compel the defendant insurer to deliver an Affidavit of Documents and submit to an Examination for Discovery in an action seeking indemnity under section 258 of the Insurance Act.

The underlying tort action, in which the infant plaintiff obtained a judgment against his father, was under appeal.

The Master dismissed the motion, finding it premature because the tort judgment was stayed pending appeal and the requested discovery amounted to a fishing expedition that went beyond the current pleadings.

The defendants in a construction contract dispute brought a motion to amend their Statement of Defence and Counterclaim to add four sub-trades as parties and to claim aggravated and punitive damages against the plaintiff homebuilder.

The court denied the request to add the sub-trades, finding it would create an unwieldy and cumbersome litigation file with no privity of contract between the defendants and the sub-trades.

However, the court allowed the amendments to the pleadings regarding the damages claims, noting that while the defendants' case appeared weak, it was not for a Master to determine the merits at this stage.

Costs of $4,500 were awarded to the plaintiff.

The plaintiff sought leave to enforce a consent judgment obtained following a settlement agreement arising from a large employee fraud.

The moving party argued that the defendant had materially breached the settlement agreement by failing to disclose assets, gifts, and financial transactions and by failing to account for significant proceeds obtained from resale of goods purchased through the fraud.

The court held that the consent judgment was contractually linked to the settlement agreement and therefore subject to conditions restricting enforcement against the defendant’s residence unless a material breach occurred.

The court found multiple material breaches, including undisclosed loans, gifts, assets, and evasive disclosure regarding hundreds of thousands of dollars in proceeds.

The breaches removed the contractual protection against execution.

Leave was granted nunc pro tunc for issuance of a writ of seizure and sale.

The defendant James Vezina sought costs of $4,171.65 from the co-defendant Economical Mutual Insurance Company after a motion for summary judgment was resolved by late consent.

Although the court noted that an award of $1,000 might have been fair and reasonable given the late consent, the court declined to award any costs.

The court based this decision on the moving party's choice to pursue costs from only one of the consenting parties and the improper disclosure of a prohibited statement made during a pre-trial conference.

The moving defendants sought an order declaring a 2001 commercial action deemed dismissed under Rule 48.15(6), or alternatively dismissed for delay under Rule 24.01.

The court held that, because a notice of intent to defend had been filed, the action was not effectively deemed dismissed as abandoned, following the existing interpretation of the transition provision for undefended actions.

On the delay motion, the court accepted that lengthy inactivity was plausibly explained by extended settlement efforts between the principal parties and found the moving defendants had not demonstrated actual prejudice or a substantial risk to a fair trial in what was largely a document-driven promissory note dispute.

The motion was dismissed, limitations issues were left for another day, and the court imposed an expedited timetable under the new Rule 48.14 framework.

The plaintiff moved to set aside a registrar’s dismissal of his multi-party action for delay under Rule 37.14.

Applying the contextual approach and the Reid factors, the court held that the plaintiff had shown sufficient inadvertence, ongoing intention to pursue the claim, and absence of significant prejudice to the defendants, despite delay and the expiry of a limitation period.

The court also found uncontradicted evidence that the status notice may not have been received and emphasized the preference for deciding civil cases on their merits rather than procedural defaults.

The dismissal was set aside, directions were given for any summary judgment motion and for setting the matter down for trial, and no costs were ordered.

On a production motion in a tort action, the moving defendants sought the plaintiff's complete long-term disability file from RBC, including particularized schedules of produced and withheld documents.

The responding plaintiffs argued that entitlement to deduct disability benefits was a trial issue and that settlement-related materials were protected by settlement privilege.

The court held that the deductibility issue need not be decided on the motion and that relevant underlying documents in the LTD file were producible notwithstanding the privilege claim.

Settlement negotiation communications and any documents subject to ongoing privilege remained protected.

Following a successful commercial application for the return of a deposit, the applicant sought costs on a substantial indemnity basis relying on a pre‑litigation letter requesting the return of the deposit.

The respondents opposed costs, arguing the case was uncertain, settlement options had been offered, and the application procedure was unusual.

The court held that the applicant was entirely successful and that the June 30, 2014 letter constituted a valid offer to settle within the meaning of Rule 49 of the Rules of Civil Procedure.

Because the judgment obtained was more favourable than the offer, the cost consequences of Rule 49.10 applied.

Substantial indemnity costs were awarded but reduced from the amount claimed to reflect that Rule 49 provides substantial indemnity, not full recovery.

Following a trial regarding a construction contract dispute, the parties made written submissions on costs.

The court found that the Ministry of Transportation of Ontario (MTO) engaged in reprehensible and unconscionable conduct by manipulating expert evidence and withholding information.

As a result, the court awarded full indemnity costs to Leveque.

Bruell was awarded mixed partial and substantial indemnity costs based on a Rule 49 offer to settle.

The court also granted a Sanderson Order, directing MTO to directly pay the partial indemnity costs of the successful defendant, AECOM, because MTO's defence strategy made it necessary for AECOM to remain in the litigation.

The moving party sought to set aside a Master's report and withdraw an admission regarding the date of a mortgage advance relevant to lien priority under the Construction Lien Act.

The admission established that funds were advanced on November 19, 2009, giving the lien claimant priority over the mortgage advance.

The court held the moving party failed to satisfy the leave test required to bring the interlocutory motion and withdraw the admission.

The evidence showed the admission resulted from litigation strategy and failure to obtain available documents rather than inadvertence or mistaken instructions.

The motion was dismissed and the Master's report left undisturbed.

The plaintiffs commenced an action for professional negligence and breach of contract arising from a commercial real estate transaction.

After two years, a status notice was issued, and the plaintiffs requested a status hearing to prevent the action from being dismissed for delay.

The defendants opposed the continuation of the action, arguing the plaintiffs failed to adequately explain the delay or demonstrate an absence of prejudice.

The Master reviewed the conflicting jurisprudence on status hearings and concluded that, while the delay was problematic, the plaintiffs provided a sufficient explanation and the defendants suffered no non-compensable prejudice.

The action was allowed to proceed subject to a strict timetable.

The defendant auditor brought motions to compel answers to written discovery questions, to compel production of the plaintiff's expert files, and to increase the quantum of security for costs.

The court dismissed the motion to compel discovery answers, finding the requests for summaries of evidence and lists of documents to be relied upon at trial were overly broad and disproportionate.

The court ordered reciprocal production of prior expert report drafts but otherwise upheld litigation privilege over the experts' files.

The court granted the motion to increase security for costs, adding $577,995 to the previous order due to an extended trial estimate and the plaintiff's new litigation financing arrangement.

A housing co‑operative applied under s. 171.13 of the Co‑operative Corporations Act for termination of a member’s membership and occupancy rights, a writ of possession, arrears, and costs.

The respondent member had a lengthy history of housing charge arrears, repeated late payments, and insufficient‑funds payments, and failed to attend the board meeting considering termination.

The court held that eviction decisions of democratically governed housing co‑operatives attract judicial deference and are reviewed on a standard of reasonableness.

Finding the board’s process fair and its decision reasonable, and no exceptional equitable circumstances warranting relief under the Act, the court granted the application.