Civil Litigation - Plaintiff - SCJ

The plaintiff brought a motion for default judgment against several defendants who were noted in default in an action for mortgage fraud.

The plaintiff alleged that one defendant impersonated his brother to obtain a mortgage loan, facilitated by the other defendants acting as mortgage brokers.

The court dismissed the motion, finding that the facts deemed admitted and the evidence provided did not establish the necessary connection between the proceeds of the fraud and the defendants noted in default, as there was no evidence regarding who negotiated the bank drafts from the lawyer's trust account.

The plaintiff sued his disability insurer for long-term disability benefits.

The insurer brought a motion for summary judgment to dismiss the action, arguing that a $314,843 settlement the plaintiff received from his former employer upon termination was fully deductible from his LTD benefits under the policy.

The court dismissed the motion, finding that the nature and component parts of the settlement package were unclear from the documentary record.

The court concluded there was a genuine issue requiring a trial to determine whether the settlement funds constituted income replacement or disability payments subject to deduction.

The plaintiff was injured when she fell on a public transit bus.

At trial, the jury awarded $35,000 in general damages and $5,000 for past housekeeping.

On post-trial motions, the court held that while the defendant employer was vicariously liable for the driver's negligence, its liability was limited by the Insurance Act to the amount the driver would be liable for.

Applying the statutory deductible reduced the general damages to zero.

Furthermore, the court found the plaintiff did not meet the statutory threshold for permanent serious impairment.

The housekeeping award was also reduced to zero due to collateral benefits received from the plaintiff's own insurer.

The plaintiffs brought an action for the release of two tranches of escrow funds held pursuant to a share purchase agreement.

The defendant moved to stay the action in favour of arbitration, arguing its claims for equitable set-off fell under the agreement's arbitration clause.

The plaintiffs moved for summary judgment.

The court dismissed the motion for a stay, finding the claim for the first tranche was a proper matter for summary judgment and fell within the statutory exception to mandatory arbitration.

The court granted partial summary judgment for the first tranche, holding that the defendant's unliquidated claims for equitable set-off could not be used to withhold the escrow funds.

However, the court found a genuine issue requiring a trial regarding the accounting adjustments for the second tranche and ordered a mini-trial.

The defendant Tanya Lemcke brought a motion for summary judgment to dismiss the action against her, arguing that the plaintiffs' claim was statute-barred by the two-year limitation period.

The plaintiffs, Louis Sirois and Chandra Martens, alleged that Ms. Lemcke, their real estate agent, failed to disclose plans for a solar farm on an adjacent property, which they became aware of in early 2010.

The court found that the plaintiffs discovered their cause of action by February 2010, as they knew they had suffered damage, even if the full extent was unknown.

Consequently, the two-year limitation period expired in February 2012, prior to Ms. Lemcke being added as a defendant in November 2013.

The motion for summary judgment was granted, dismissing the action against Ms. Lemcke.

The plaintiff sought a declaration under the Fraudulent Conveyances Act that the transfer of a residential property by his spouse to her mother was void as a fraudulent conveyance intended to defeat his potential claims arising from matrimonial proceedings.

The court examined badges of fraud including lack of consideration, secrecy of the transfer, and the close relationship between transferor and transferee.

After reviewing credibility issues and conflicting evidence, the court found the spouse was the true owner of the property and transferred it during a troubled marriage to prevent its inclusion in equalization calculations under the Family Law Act.

The court held that the plaintiff qualified as a creditor within the meaning of the statute.

The conveyance was declared null and void.

Following successful summary judgment motions dismissing a motor vehicle accident action as statute‑barred, the defendants sought costs of the action.

The plaintiff had commenced the claim approximately eleven years after the accident and the court previously found she had not exercised due diligence under the discoverability principles governing limitation periods.

In this costs decision, the court applied s. 131 of the Courts of Justice Act and Rules 57.01 and 57.03 of the Rules of Civil Procedure.

Finding no misconduct or exceptional circumstances justifying a departure from the default rule that costs follow the event, the court declined to award substantial indemnity but fixed costs on a partial indemnity basis.

The defendants were awarded their requested partial indemnity costs as fair and reasonable in the circumstances.

The defendant bank brought a motion to strike the plaintiff’s statement of claim for failing to disclose a reasonable cause of action.

The self‑represented plaintiff alleged fraud, deceit, emotional distress, and sought substantial punitive damages arising from NSF charges and monthly account fees imposed by the bank.

The court held that the pleading contained no material facts capable of supporting claims of fraud or intentional infliction of mental suffering and consisted largely of unsupported conclusions and allegations.

Applying the principles governing scandalous, frivolous, or vexatious pleadings, the court found it plain and obvious the action had no merit.

The statement of claim was struck without leave to amend and the action dismissed.

The representative plaintiff in a class proceeding sought costs following a motion to add additional common issues and to determine the method of giving notice to potential class members.

The plaintiff requested costs on a complete indemnity basis, alleging delay and obfuscation by the defendant regarding the number of class members.

The court found that success on the motion was divided but that the plaintiff was substantially successful, particularly on the primary issue relating to the appropriate remedy and the method of providing notice to class members.

Although the defendant’s conduct contributed to the need for newspaper publication notice, the court held it was not sufficiently blameworthy to justify substantial or complete indemnity costs.

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

A solicitor sought leave to appeal a costs order requiring him to personally pay costs on the basis that he engaged in “sharp practice” contrary to the Rules of Professional Conduct.

The motion judge held that although a master may examine a lawyer’s conduct when determining costs under Rule 57.07(2) of the Rules of Civil Procedure, making an actual finding that the lawyer breached the Rules of Professional Conduct exceeds a master’s jurisdiction.

Such findings are reserved for Law Society discipline proceedings with full procedural protections.

Given the seriousness of a professional misconduct determination and the procedural context of the costs motion, the matter raised a legal issue warranting appellate review.

Leave to appeal was granted.

Family members disputed entitlement to proceeds from a winning “CHEO Dream of a Lifetime Lottery” ticket and the ownership of jointly held real property.

The applicants alleged an agreement to equally share any lottery winnings or, alternatively, that the respondent made a valid gift of equal shares to his parents.

The respondent denied the existence of any enforceable agreement or completed gift and argued the applicants had no legal or equitable entitlement to the proceeds held in court.

The court found that material facts and credibility issues were in dispute and directed that the application proceed as an action with pleadings, discovery, and mediation.

Separately, the court granted partition and sale of jointly owned property under the Partition Act, finding no evidence that the applicant’s request for sale was vexatious, malicious, or oppressive.

The plaintiffs sought an interlocutory injunction requiring the franchisor to reinstate them in control of a pharmacy during a contractual management period following notice that the franchise relationship would not be renewed.

The dispute arose under an associate agreement governed by the Arthur Wishart Act and included interpretation of provisions allowing the franchisor to assume management control during the final 60 days before expiry.

The court held the requested relief was a mandatory injunction requiring the plaintiffs to demonstrate a strong prima facie case.

The plaintiffs failed to establish even a serious issue to be tried, as the agreement clearly permitted the franchisor to assume management upon expiry by effluxion of time.

Claims of irreparable harm were speculative and the balance of convenience favoured the franchisor.

The moving party sought an order requiring the judge to recuse himself on the basis of a reasonable apprehension of bias and to set aside a prior endorsement.

The motion relied on comments made in earlier reasons, the refusal of an adjournment at a case conference, directions regarding document production, and alleged comments about a prior registrar’s order.

Applying the objective test for reasonable apprehension of bias articulated in Wewaykum Indian Band v. Canada and R. v. S. (R.D.), the court held that none of the alleged circumstances would lead an informed and reasonable person to conclude that the judge would not decide the matter fairly.

The court emphasized that adverse findings, scheduling decisions, and case management directions do not establish bias when grounded in the evidence and procedural context.

The motion for recusal and to set aside the earlier endorsement was dismissed.

The appellants appealed a Master’s order refusing to dismiss most aspects of a counterclaim on a summary judgment motion in a mortgage enforcement action.

The counterclaim alleged vandalism, burglary, trespass, breach of contract, conspiracy, and repayment of fees deducted from the mortgage advance.

The appellants argued that the Master misapprehended the evidence and improperly shifted the burden by requiring them to disprove the respondents’ allegations.

The court held that the appellants failed to adduce evidence specifically addressing several pleaded claims or linking their evidence to the alleged causes of action.

The Master applied the correct legal principles and committed no palpable and overriding error.

Following the dismissal of the defendant municipality’s motion for summary judgment, the plaintiff sought substantial indemnity costs.

The plaintiff argued that the municipality advanced unfounded allegations that the plaintiff corporation was a “sham” created to circumvent the Fairness is a Two-Way Street Act (Construction Labour Mobility), 1999.

The court held that although fraud was not ultimately pursued, the allegations effectively challenged the plaintiff’s honesty and business integrity, justifying substantial indemnity costs.

However, the court found the time spent preparing the motion response excessive and reduced the amount claimed.

Costs were awarded on a substantial indemnity basis in the reduced amount plus disbursements.

The court determined costs following a motion involving multiple forms of relief, including leave to amend the statement of claim, settlement of a master's order, contempt, a case management timetable, and refusals and undertakings.

The moving party was largely unsuccessful on several issues, including a contempt motion that the court found premature and without merit.

The court held that contempt is a serious allegation and failure on such a claim may justify substantial indemnity costs.

Although there was divided success on some discovery-related issues, the defendants were overall the successful parties.

Costs were fixed in favour of the defendants.

Costs were determined following a successful motion removing the plaintiffs’ solicitors due to a conflict of interest arising from the hiring of a lawyer who previously acted for the defendant and the deceased in related matters.

The court found that the lawyer possessed confidential and privileged information and had disclosed it to the firm representing the plaintiffs, and that the firm failed to implement effective screening measures.

The defendant and a supporting third party sought substantial or full indemnity costs.

The court concluded that the conduct of the plaintiffs’ counsel was sufficiently egregious to warrant full indemnity costs.

Costs were awarded to both the moving defendant and the third party, with a portion ordered to be paid personally by the solicitors under Rule 57.07 of the Rules of Civil Procedure.

During a civil jury trial arising from a motor vehicle accident, the plaintiffs sought to exclude the testimony of a defence neuropsychologist regarding neuropsychological testing and symptom validity assessment.

The court applied the admissibility framework for expert evidence from R. v. Mohan and the two‑step reliability analysis from R. v. Abbey.

While the expert’s methodology raised concerns regarding cultural and linguistic validity of standardized tests and the absence of normative data for the plaintiff’s background, the court concluded the opinion met the threshold reliability for admissibility.

To preserve fairness and avoid improper commentary on credibility, the court permitted the expert to testify on testing methodology, behavioural observations, and differential diagnosis but prohibited opinions implying deceit, malingering, or general credibility.

The evidence was therefore admitted subject to strict limits and jury instructions.

In a motor vehicle accident action involving an uninsured driver, the OPCF 44‑R insurer brought a motion for summary judgment seeking a declaration that the insured driver was at least one percent at fault, which would remove the insurer from liability under the Negligence Act.

The court held that credibility issues and conflicting testimony regarding the circumstances of the collision required a trial, applying the “full appreciation test” articulated in Combined Air Mechanical Inc. v. Flesch.

The written record and cross‑examinations created genuine issues requiring trial, particularly regarding the drivers’ credibility and the sequence of events at the intersection.

The summary judgment motion was dismissed.

The insurer was awarded costs of an abandoned motion brought by another defendant and obtained a contingent declaration concerning the priority of insurance coverage for damages exceeding $200,000.

Following earlier reasons granting relief in a dispute involving charitable corporations and trust‑like obligations over charitable assets, the successful applicants sought substantial indemnity costs against the respondent foundation.

The court considered allegations that the respondent had advanced reckless and unfounded accusations of dishonesty, breach of trust, and misappropriation during the proceedings.

It also reviewed the applicants’ unaccepted Rule 49 offer to settle and the complexity and importance of the litigation concerning charitable corporations, fiduciary duties, and the Charities Accounting Act.

The court concluded that the respondent’s conduct, including unsupported allegations and misrepresentations of fact, justified an award of substantial indemnity costs.

Costs of $454,686.19 were awarded to the applicants, and additional costs were awarded to the Public Guardian and Trustee.