Civil Litigation - Plaintiff - SCJ

The applicants sought an order for adverse possession of a parcel of city-owned parkland that had been enclosed in their backyard by a chain-link fence for decades.

The City acknowledged the traditional test for adverse possession was met but argued the lands were immune as public property.

The court found that the lands were originally expropriated for a high public interest purpose and that private individuals cannot acquire title by fencing off public lands.

The application for adverse possession was dismissed.

The plaintiff subcontractor brought an action against the defendant general contractor to enforce a construction lien and for breach of contract regarding structural steel and miscellaneous metals work on a school project.

The court found that the parties had entered into two separate contracts.

The plaintiff failed to preserve its lien rights for the structural steel contract in a timely manner, but its claim was permitted to proceed as a personal judgment under section 63 of the Construction Lien Act.

The plaintiff's lien for the miscellaneous metals contract was validly preserved.

The court conducted a detailed accounting of the base contract prices, approved extras, and valid charge-backs for deficient or incomplete work performed by third parties.

Ultimately, the court awarded the plaintiff a net judgment of $99,346.83 across both contracts.

The defendant insurer, Unifund, brought a motion for summary judgment to dismiss the plaintiffs' claims against it.

The central issue was whether the plaintiff daughter resided with her mother at the time of a motor vehicle accident, which would entitle her to coverage under the mother's OPCF 44R Family Protection Endorsement.

The court reviewed evidence from examinations under oath and concluded that the daughter maintained her own separate residence and did not reside with her mother, despite frequently staying over to provide care.

The court found no genuine issue for trial regarding residency and granted summary judgment dismissing the action against Unifund.

The plaintiffs brought a motion for a Mareva injunction against the defendants, alleging they were defrauded of over $800,000 CAD/USD through a fake investment scheme.

The defendants allegedly promised to invest the funds in options, futures, or forex, but instead diverted the funds and ceased communications.

The court found the plaintiffs established a strong prima facie case of fraud, conspiracy, breach of trust, breach of fiduciary duty, knowing assistance, and conversion.

The court granted the Mareva injunction, finding a serious risk of asset dissipation.

During a trial regarding allegedly false warranty claims, the court made two evidentiary rulings.

First, the court found the plaintiffs breached the rule in Browne v. Dunn by failing to cross-examine a defence witness on evidence later adduced from customer witnesses to impeach him.

The court admitted the evidence but reserved the right to draw an adverse inference or adjust its weight.

Second, the court granted the defendants leave under Rule 53.08 to use an undisclosed document to cross-examine a plaintiff's witness, on the condition that the defendants recall their own witness to be cross-examined on the document.

Mr. Gandhi sued Zev Investments Limited for injuries sustained after slipping on a liquid in his apartment building's stairwell.

Zev brought a motion for summary judgment, arguing no genuine issue for trial existed, as Mr. Gandhi's theories about the hazard were inconsistent and refuted by their evidence.

Mr. Gandhi maintained he slipped on paint or paint oil spilled by Zev's contractor and argued Zev failed to maintain a proper inspection system.

The court dismissed Zev's motion, finding a genuine issue for trial regarding the cause of the fall, Zev's vicarious liability, and the adequacy of its maintenance system, concluding that a summary judgment process would not be proportionate or efficient given the need for extensive witness testimony.

The plaintiff, a farm equipment dealer, brought a motion for an interlocutory injunction to prevent the defendant manufacturer from terminating their dealership agreement.

The plaintiff intended to argue before the Agriculture, Food and Rural Affairs Tribunal that the termination violated the Farm Implements Act, but had not yet commenced proceedings there.

The court dismissed the motion, finding that an injunction is an ancillary remedy and cannot be granted where no underlying proceeding exists.

Alternatively, the court held that the requested relief was a mandatory injunction for which the plaintiff failed to establish a strong prima facie case, and even under the lower threshold for a prohibitive injunction, the plaintiff failed to demonstrate irreparable harm or that the balance of convenience favoured granting the injunction.

The defendant WR Property Service Inc. brought a motion for summary judgment in a slip and fall personal injury action.

The Morguard defendants, co-defendants in the action, requested an adjournment of WR's summary judgment motion and the upcoming trial, arguing they had insufficient time to prepare a proper response, including securing an affidavit and conducting cross-examinations.

The court granted the adjournment, finding that denying it would cause significant prejudice to the Morguard defendants by preventing them from fully presenting their case, and that the interests of justice in resolving the matter on its merits outweighed the delay.

In a costs endorsement following earlier proceedings under the Construction Lien Act, the self-represented party filed an amended bill of costs seeking compensation for legal work performed by a solicitor and renewed a request for compensation for his own time spent on the matter.

The court allowed the additional solicitor’s fee of $600 plus HST as a recoverable disbursement, conditional on payment to the solicitor once received.

The court rejected the renewed request for compensation for the self-represented party’s own time, noting that the issue had already been decided and that such compensation would not be awarded.

The respondents brought a preliminary motion to strike portions of an elector’s application under the Municipal Conflict of Interest Act on the basis that several alleged contraventions were commenced outside the six‑week time limit in s. 9(1).

The court examined the legislative history and jurisprudence interpreting the provision and concluded that s. 9(1) functions as a temporal qualification for applicants rather than a conventional limitation period.

The relevant inquiry focuses on the applicant’s actual or constructive knowledge of the facts giving rise to the alleged contravention, not on what a reasonably diligent person could have discovered from publicly available information.

The court held that the applicant’s uncontradicted evidence established that she commenced the application within six weeks of acquiring the requisite knowledge.

The moving parties failed to prove earlier knowledge that would render the application untimely.

Following a successful oppression action involving breach of fiduciary duty, enforceability of a property management agreement, and corporate share ownership, the plaintiff sought substantial indemnity costs relying in part on a Rule 49 settlement offer.

The defendants argued success at trial was divided and that no costs or reduced costs should be awarded.

The court found the plaintiff achieved substantial success, particularly on the oppression and fiduciary breach issues, and had effectively beaten portions of the Rule 49 offer.

The court held that substantial indemnity costs were appropriate for certain issues after the offer date and partial indemnity for others.

Considering proportionality and the absence of a competing bill of costs from the defendant, the court fixed total costs at $145,000 inclusive.

Following dismissal of two applications involving a dispute between dental professional corporations and issues arising from arbitration decisions and lease forfeiture, the court determined costs.

The applicant had sought leave to appeal arbitral decisions and relief from forfeiture of a lease but was unsuccessful.

The court applied Rule 57 and proportionality principles in fixing fair and reasonable costs rather than simply awarding actual costs incurred.

Partial indemnity costs were awarded to the respondent corporation for both applications, while the landlord respondent received substantial indemnity costs due to contractual indemnification provisions and the applicant’s conduct in unnecessarily involving the landlord.

Costs were fixed with reductions to claimed hours where the court found the time excessive.

Following a civil jury trial dismissing a medical malpractice claim, the successful defendant sought partial indemnity costs exceeding $74,000.

The court assessed costs under Rule 57 of the Rules of Civil Procedure and the principles of fairness, reasonableness, and proportionality articulated by the Court of Appeal.

While the court accepted the reasonableness of senior counsel’s rates and most claimed hours, it reduced mediation costs and limited recovery for junior counsel’s trial preparation and attendance where the work resembled tasks that could have been performed by a law clerk.

The court emphasized that training junior counsel should not be funded by the opposing party through costs awards.

Total costs were fixed at $55,437.84 inclusive of fees, HST, and disbursements.

A member of a limousine drivers’ co‑operative brought an application under the Co‑operative Corporations Act seeking an order compelling the co‑operative to enforce its by‑law disqualifying members who held interests in competing airport limousine services.

Certain respondents had acquired shares in a holding company that owned a competing limousine operator.

The court held that the by‑law governing membership qualifications was validly enacted and that members were estopped from challenging its validity after years of operating under it.

However, the provision purporting to automatically terminate membership upon breach was inconsistent with the statute, which requires expulsion by board resolution after due process.

The court directed that the board may disqualify members with interests in the competing company following proper procedures but dismissed the application against a respondent who had divested his shares.

Following a trial in which the plaintiff was successful, the court determined the appropriate costs award.

The plaintiff sought to increase the agreed partial indemnity costs amount and to obtain substantial indemnity costs based on a Rule 49 offer under the Rules of Civil Procedure.

The defendant argued that the plaintiff’s misleading conduct justified denying the plaintiff costs and awarding costs to the defendant instead.

The court held that the parties’ agreement that $41,000 represented reasonable partial indemnity costs should be respected and declined to increase the amount.

The court also refused substantial indemnity costs due to the plaintiff’s misleading conduct but declined to award costs to the defendant.

A proposed purchaser under a second agreement of purchase and sale sought leave to intervene in litigation between the original purchaser and the vendor concerning the enforceability of an earlier agreement for the sale of condominium units.

The proposed intervenor also sought a mandatory order compelling completion of the second agreement, declaratory relief, and security for costs.

The court held the proposed intervenor would not assist in resolving the dispute between the original contracting parties and would merely duplicate the vendor’s position.

Any damages arising from failure to complete the second agreement would be compensable and properly pursued against the vendor in a separate proceeding.

The court dismissed the motion for intervenor status and related relief, refused the vendor’s request to withdraw its undertaking not to transfer title, and directed that the dispute proceed by expedited trial on the Commercial List.

The defendant brought a motion under Rule 21.01 of the Rules of Civil Procedure to strike the plaintiff’s claim on the basis that it disclosed no reasonable cause of action and constituted an abuse of process.

The plaintiff argued the defendant lacked standing due to alleged default and that the motion was not brought promptly.

The court rejected these arguments, finding the defendant was not in default and could bring the motion.

The court held the statement of claim disclosed no reasonable cause of action and duplicated earlier pleadings previously struck as abusive.

The pleadings were struck without leave to amend and the defendant was awarded $5,000 in costs.

A homebuilder sued a purchaser for breach of an agreement of purchase and sale after the transaction failed to close.

The purchaser had moved into the property under an interim occupancy agreement while the vendor sought a minor zoning variance required due to a setback issue.

The purchaser attempted to reinstate a “time of the essence” clause and set a final closing date, then treated the agreement as terminated when the vendor did not close on that date.

The court held that the purchaser’s notice was ineffective because it imposed new conditions, set an unreasonable closing date, and was motivated by bad faith.

The purchaser repudiated the contract, entitling the vendor to retain the deposits as liquidated damages and recover certain additional amounts under collateral and occupancy agreements.

The moving party sought consolidation of three simplified procedure defamation actions brought by separate plaintiffs against the same defendants, as well as an order striking certain paragraphs of the statements of claim and requiring particulars of allegations of malice.

The court held that the actions arose from the same alleged defamatory statements and involved common issues of fact and law, making consolidation appropriate under Rule 6.01 of the Rules of Civil Procedure and consistent with the principle against multiplicity of proceedings.

The court declined to strike impugned paragraphs of the pleadings, finding they provided contextual allegations relevant to the defendant’s alleged mindset in a defamation claim.

However, the court ordered the plaintiffs to provide full particulars of alleged malice pursuant to Rule 25.06(8).

Given the mixed outcome, no order as to costs was made.

The applicants sought summary relief terminating powers of attorney granted by an elderly individual, declaring incapacity, appointing a guardian, and requiring an accounting of property proceeds.

The motion relied on Rule 20 of the Rules of Civil Procedure despite the proceeding having been commenced by notice of application and subject to a prior consent order directing that the issues be determined at trial.

The court held that Rule 20 summary judgment procedures apply to actions commenced by statement of claim and could not be used in this application where a trial had already been ordered.

The record also disclosed extensive credibility disputes and conflicting allegations concerning care of the grantor and management of property.

The court concluded that the issues required determination at trial and dismissed the motion.