Civil Litigation - Plaintiff - SCJ

The parties brought a statutory appeal and cross-appeal from an arbitrator's award under the Ontario New Home Warranties Plan Act regarding a new build home purchase agreement.

The Divisional Court directed the parties to address whether leave to appeal was required as a preliminary issue.

The court held that while it has jurisdiction to hear the appeal, section 45(1) of the Arbitration Act applies because the Tarion Addendum constitutes an arbitration agreement that is silent on appeal rights.

Consequently, leave to appeal is required and the appeal is strictly limited to questions of law.

The plaintiffs brought a motion to substitute HCN-Revera Leasee (Alta Vista LP) as a defendant and amend their statement of claim in an action arising from alleged negligence and elder abuse at a retirement home.

The defendants opposed, arguing the amendment sought to add a new party after the expiry of the two-year limitation period.

The court found that while the limitation period had expired, the amendment was a genuine correction of a misnomer, as the 'litigation finger' clearly pointed at the proposed defendant.

Finding no non-compensable prejudice, the court granted the motion to correct the misnomer and awarded costs to the plaintiffs.

The defendants were successful in obtaining a temporary stay of the Ontario action and sought costs of the motion on a partial indemnity scale.

The plaintiff argued that costs should follow the cause and be awarded upon final disposition, or that the parties should bear their own costs because the defendants were only partially successful.

The court rejected the plaintiff's arguments, finding the defendants were the successful parties and entitled to costs payable forthwith.

Costs were fixed at $23,687.55 on a partial indemnity scale.

The plaintiff, Ontario, brought a motion for leave to amend its statement of claim to increase damages, provide further particulars of alleged kickback schemes, and add additional defendants in a civil fraud action.

The defendants and proposed added defendants opposed the motion, arguing the proposed amendments lacked particularity, used vague 'and/or' formulations, and failed to meet the minimum level of material fact disclosure.

The court agreed that several proposed paragraphs were deficient as they did not clearly identify which allegations were made against which specific defendants.

The motion was dismissed, but the plaintiff was granted leave to renew its motion with a properly drafted amended pleading.

The plaintiffs, Andrew and Selena Stronach, sought leave to amend their respective statements of claim in two related actions concerning the management of the Stronach family business and trusts.

The defendants, including Belinda Stronach, opposed the amendments on several grounds, primarily arguing that references to a May 2020 Agreement were barred by settlement privilege.

The court found that the defendants failed to prove the May 2020 Agreement was intended to be kept confidential, and alternatively, that any privilege had been waived or an exception applied.

The court also rejected arguments that the amendments improperly withdrew admissions or were scandalous and vexatious.

Leave to amend the pleadings was granted.

The plaintiffs moved for an interlocutory injunction to prohibit the Independent Electricity System Operator (IESO) from enforcing the deemed terminations of 34 Feed-In Tariff (FIT) contracts and discontinuing payments.

The court found that the motion was an impermissible collateral attack on prior court orders that had deemed the contracts terminated.

Furthermore, the plaintiffs sought a mandatory injunction but failed to establish a strong prima facie case, as the issues of termination had been decided in prior litigation.

The court also found the plaintiffs' evidence of irreparable harm to be speculative.

The motion for an interlocutory injunction was dismissed.

The plaintiff developer brought an action for breach of contract arising from an aborted sale of a subdivision house, and the defendant purchaser alleged undue influence.

The plaintiff brought a motion for summary judgment.

Following cross-examinations, both parties agreed the factual issues were discrete and appropriate for summary judgment.

The court agreed, scheduled the summary judgment motion for a half-day hearing, and established a timetable for the remaining steps, including a refusals motion.

The plaintiff repair shop brought an action to recover amounts paid into court by the defendant vehicle owner under the Repair and Storage Liens Act.

The plaintiff had repaired and stored a Ferrari leased to a third party that later went into receivership.

The court found that the plaintiff had valid non-possessory liens that became charges on the funds paid into court.

The court awarded the plaintiff $30,358.06 for the fair value of the repairs but dismissed the claim for storage charges due to insufficient evidence of fair value.

The plaintiff brought an action against her family members and a Chinese enterprise, claiming a 25% ownership interest in the enterprise and seeking damages for misappropriation of its assets.

The court heard expert evidence on Chinese law, which established that the enterprise was state-owned and could not have private shareholders.

The court rejected the plaintiff's argument that she had a contractual right to profits under a management agreement, finding it was neither pleaded nor proven.

The plaintiff's claim for $599,000 USD allegedly misappropriated from a joint bank account was also dismissed, as the court accepted evidence that the funds were deposited due to a bank error.

The action was dismissed in its entirety.

The Crown and the Municipal Property Assessment Corporation (MPAC) brought motions to transfer four related Small Claims Court actions to the Superior Court of Justice.

The self-represented plaintiffs, former employees affected by a 1998 pension divestment, opposed the transfer.

The court applied the factors from Farlow v. Hospital for Sick Children, balancing the complexity of issues, need for expert evidence, and discovery against access to justice concerns.

The court concluded that the moving parties failed to demonstrate that the claims could not be fairly and justly resolved in the Small Claims Court, and dismissed the motions.

The plaintiff subcontractor moved for summary judgment against the defendant surety on a labour and materials payment bond after the general contractor defaulted and failed to pay the plaintiff's invoices.

The surety argued that the plaintiff had fully mitigated its damages by entering into a replacement subcontract with the new general contractor for a higher amount than the remaining value of the original subcontract.

The court held that the plaintiff's opportunity to profit from the replacement subcontract was separate from and collateral to the general contractor's failure to pay the invoices.

The motion for summary judgment was granted.

The plaintiffs brought a motion for summary judgment in an action for damages arising from the defendants' failure to close a residential real estate transaction.

The defendants argued the agreement was void due to issues with a power of attorney, misrepresentation of square footage, and failure to provide a survey.

The court found no genuine issue requiring a trial on liability or mitigation of damages.

Summary judgment was granted in favour of the plaintiffs for forfeiture of the deposit and damages for the loss in property value and increased commission fees upon resale.

The applicant purchased a contaminated property from the respondent.

The agreement of purchase and sale required the respondent to remediate the property to specific Ministry of Environment standards using in situ injections.

After several unsuccessful injection attempts, the respondent's experts proposed a Site Specific Risk Assessment (SSRA) instead of further injections or excavation.

The applicant sought specific performance of the remediation or funds to complete it, while the respondent sought a declaration that an SSRA satisfied its obligations.

The court found insufficient evidence regarding current contamination levels, the feasibility of excavation, and the impact of an SSRA on property value, and ordered the parties to obtain further expert evidence using trust funds before making a final determination.

Following a summary judgment motion where success was divided, the court determined the appropriate costs award.

The parties had previously agreed to cap costs at $20,000 for the successful party.

Finding that the responding party was more successful based on the issues proceeding to trial, the court ordered the moving party to pay costs fixed at $10,000.

The plaintiffs sought costs on a full, substantial, or partial indemnity basis following a motion to compel the defendants to comply with undertakings.

The defendants argued the motion was brought to delay discovery.

The court noted the defendants had the power to expedite discovery by complying with undertakings and court orders, which they failed to do.

Costs were awarded to the plaintiffs on a substantial indemnity basis in the amount of $94,468.81.

The defendant sought partial indemnity costs of $42,500 after successfully having the plaintiff's action dismissed on a jurisdictional issue.

The court noted that neither party raised the jurisdictional issue until the pretrial stage, resulting in approximately five years of unnecessary litigation.

Consequently, the court declined to award costs for the entire litigation period and fixed the defendant's costs at $7,500 inclusive of HST and disbursements.

An insurance broker mistakenly arranged automobile insurance for a client's older vehicle instead of the newer replacement.

Following a collision involving the newer vehicle, the insurer voided the policy.

The broker's errors and omissions insurer indemnified the client and then brought a subrogated action against the original insurer, seeking recovery and a declaration of the insurer's duty to defend and indemnify.

The insurer successfully moved for summary judgment, with the court finding that the brokerage agreement provided a complete defence and that the insurer owed no duty of care to the broker to ascertain the insured's specific vehicle requirements.

The court also dismissed the claim for equitable recoupment, emphasizing the contractual terms and the role of the broker's errors and omissions insurance.

The appellant appealed a Small Claims Court judgment ordering him to pay $2,915.40 to the respondent roofing company for partial roof repairs.

The appellant, who was self-represented, argued that the trial judge was biased against him, erred in admitting certain photographs, and made incorrect factual findings regarding the cause of a roof leak.

The Superior Court of Justice dismissed the appeal, finding no reasonable apprehension of bias and no palpable and overriding errors in the trial judge's assessment of the evidence, noting that the appellant had chosen to only partially repair a roof that was in a deplorable condition.

In a complex construction lien and environmental remediation dispute, the parties brought cross-motions to compel answers to questions refused during examinations for discovery.

The owner sought answers from the remediation contractor regarding its prior experience and sampling protocols.

The contractor sought information and documents from the owner regarding the historical environmental condition of the property and its 1981 purchase agreement.

Applying the relevance test informed by proportionality, the court ordered the contractor to answer questions about its experience and subcontractor control, and ordered the owner to produce historical environmental information and the 1981 purchase documents, as they were relevant to the allegations of negligence and failure to mitigate.

Following jurisdictional motions that resulted in a stay of the action against several foreign defendants, the court determined the appropriate costs payable by the unsuccessful plaintiffs.

The defendants sought substantial partial indemnity costs reflecting extensive counsel time for both preliminary litigation steps and the jurisdictional motions.

Applying s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court emphasized that costs must be fair and reasonable for the unsuccessful party to pay, rather than matching the successful party’s actual expenditures.

The court reduced certain pre‑motion time allocations and adjusted hourly rates but allowed full time claimed for the jurisdictional motions due to their complexity and importance.

Costs were awarded to the moving defendants in specified amounts inclusive of fees, HST, and disbursements.