Civil Litigation - Plaintiff - SCJ

Eight consolidated actions arising from a motor vehicle accident on November 30, 2021, in London, Ontario, in which the defendant driver failed to stop at a red light and struck members of the London 120th Brownies, killing one child and injuring several others.

The court determined whether the defendants' personal liability umbrella policy constituted a motor vehicle liability policy under the Insurance Act and the OPCF 44R Family Protection Coverage endorsement.

The court held that the umbrella policy was not a motor vehicle liability policy and therefore the defendants were inadequately insured motorists.

The plaintiffs were entitled to access their own OPCF 44R coverage, with the aggregate available insurance limits of $2.3 million to be divided pro rata among all eligible claimants.

The representative plaintiff in a class action sought partial indemnity costs of $982,097.02 following a successful summary judgment motion against the defendants for breaches of gift card regulations.

The defendants argued that the parties should bear their own costs due to divided success, or alternatively, that the costs should be significantly reduced.

The court rejected the argument for divided success, finding the plaintiff was the successful party.

However, the court agreed to deduct certain items not appropriate for a party-and-party assessment, awarding the plaintiff $905,244.02 in costs.

The plaintiffs purchased a pre-construction condominium unit from the defendant developer.

The tentative occupancy date was delayed by nearly 24 months, and the confirmed occupancy date was subsequently extended multiple times.

The plaintiffs were unable to secure mortgage financing and terminated the agreement, seeking the return of their deposit and damages for breach of contract.

The court found that while the developer breached the agreement by extending the confirmed occupancy date without valid unavoidable delays, the plaintiffs had affirmed the contract by continuing to press for performance.

The court dismissed the action and declined to grant relief from forfeiture, finding that the retained deposit did not constitute a windfall for the developer given its incurred costs.

The plaintiff brought a motion for a status hearing to show cause why its action, arising from condominium construction defects, should not be dismissed for delay under Rule 48.14.

The court found the plaintiff failed to provide an acceptable explanation for over three years of delay and failed to rebut the presumption of prejudice, as it did not provide evidence that all relevant documents and key engineering and contracting witnesses were available.

The action was dismissed for delay.

The defendant brought a motion to set aside a default judgment for unpaid legal bills obtained by her former legal counsel.

The court found that the defendant moved promptly upon learning of the enforcement steps, had a reasonable explanation for the default due to ongoing settlement negotiations, and raised an arguable defence regarding the amount owed.

The motion to set aside the default judgment was granted, but the defendant was ordered to pay $5,000 in costs to the plaintiff for the motion.

The plaintiff brought a motion compelling former counsel to deliver the litigation file after the lawyer removed himself as counsel of record due to unpaid accounts.

The former solicitor asserted a solicitor’s lien over the file under s. 6(6) of the Solicitors Act.

The court reviewed the distinction between situations where a solicitor discharges the client and where the client discharges the solicitor.

Because the solicitor had withdrawn from the retainer, the court held the file must be delivered to allow continuation of the underlying lawsuit, though the solicitor’s lien remained preserved.

The court ordered delivery of the file subject to undertakings from new counsel and maintained the lien against any eventual recovery.

The plaintiff brought a civil action under the Dog Owners’ Liability Act after a dog owned by the defendants jumped on her in a parking lot, causing puncture wounds and scratches.

The defendants admitted ownership of the dog but disputed that the injuries were caused by a bite, asserting the dog was muzzled at the time.

The court held that liability under the Dog Owners’ Liability Act is strict once a bite or attack is established and that the defendants, as owners, were jointly and severally liable for damages resulting from the attack.

However, the court found insufficient evidence to conclude that the injuries were caused by a bite rather than by the dog’s paws or claws.

Based on comparable case law and the limited evidence of injury, the court awarded modest general damages and declined to find contributory negligence.

The defendants brought a motion under rules 21.01 and 25.06 of the Rules of Civil Procedure to strike the plaintiff’s statement of claim.

The plaintiff, self‑represented, alleged disturbance, harassment, discrimination, and false ticket accusations by police but pleaded no dates, specific incidents, or material facts capable of supporting a recognized cause of action.

The court held that the pleading failed to meet the minimum requirements for a cause of action and was frivolous and vexatious.

Applying the “plain and obvious” test for rule 21.01(1)(b) motions, the court concluded that the claim disclosed no reasonable cause of action and failed to comply with pleading requirements.

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

The applicant sought declarations that a life insurance policy issued in 1982 should be enforced according to its original terms, including paid‑up value calculations appearing on the face of the policy.

The respondent insurer alleged that the paid‑up values in the policy were inserted in error and sought rectification to reduce them by a factor of five.

The record contained conflicting affidavit evidence and competing expert opinions regarding the intended structure of the policy and the calculation of paid‑up values.

The court held that the disputes involved material factual conflicts, credibility assessments, and complex issues relating to rectification and limitation periods.

As a result, the matter could not properly be resolved on an application record and required a trial.

The defendants brought a motion to dismiss or stay an Ontario action alleging negligent legal advice and breach of contract arising from legal services provided in connection with Quebec litigation.

The plaintiff argued Ontario had jurisdiction because the defendant law firm carried on business in Ontario and an Ontario lawyer participated in providing the impugned tax advice.

The court held that presumptive connecting factors established jurisdiction simpliciter under the framework from Club Resorts Ltd. v. Van Breda.

However, applying the doctrine of forum non conveniens, the court concluded Quebec was clearly the more appropriate forum given the Quebec retainer agreement, Quebec governing law, the location of most witnesses and events, and parallel proceedings in Quebec.

The Ontario action was therefore stayed.

The defendant brought a motion to dismiss or stay an Ontario action on the basis of res judicata, issue estoppel, and abuse of process, relying on a Minnesota default declaratory judgment obtained after the plaintiff declined to attorn to the jurisdiction of the U.S. court.

The Ontario court found that the Minnesota judgment did not determine the dispute on the merits and that the defendant failed to disclose the pending Ontario proceedings when seeking default judgment.

Applying the principles governing recognition of foreign judgments, the court held there was no real and substantial connection between the dispute and Minnesota sufficient under Canadian conflict of laws rules.

The court further concluded that the doctrines of res judicata and issue estoppel did not apply, and even if they did, discretion should be exercised to refuse their application to avoid injustice and the appearance of forum shopping.

The moving party sought leave to appeal an order granting consolidation and transfer of several Small Claims Court actions to the Superior Court of Justice and dismissing a motion to strike for abuse of process.

The moving party argued that a prior consent dismissal in a related Superior Court action rendered the issues res judicata and relied on appellate authority concerning the finality of consent dismissal orders.

The court held that the prior decision did not conflict with the authorities cited and that the motions judge properly exercised discretion in considering the factors from the Supreme Court of Canada decision addressing res judicata.

The court found no reason to doubt the correctness of the earlier ruling and concluded that the circumstances were sufficiently particular to avoid concerns about undermining finality of consent dismissals.

Leave to appeal was therefore refused.

Shareholders applied for a declaration that a respondent shareholder was out of time to commence arbitration under a shareholder agreement governing the purchase of shares after termination of employment.

The court held that it had jurisdiction to determine the limitation period issue notwithstanding the arbitration clause.

Applying the discoverability principles under the Limitations Act, 2002 and s. 52 of the Arbitration Act, 1991, the court concluded the limitation period began when the value of the shares was determined and the applicants refused payment, not when the employment relationship ended.

The arbitration had been commenced within the two-year limitation period by written notice demanding arbitration.

The court declined to interfere with the appointment of the arbitrator or the arbitral procedure.

Following a successful application to refer a solicitor’s contingency fee account for assessment, the court determined the appropriate quantum of costs payable to the applicant.

The court considered the factors under Rule 57 of the Rules of Civil Procedure, including the complexity of the proceeding, the conduct of the parties, proportionality, and the reasonable expectations of the losing party.

Although the applicant sought over $38,000 in partial‑indemnity costs, the court found that amount excessive despite acknowledging that the respondent solicitor’s conduct unnecessarily prolonged the proceeding.

Balancing fairness and proportionality, the court fixed costs at a reduced amount.

The representative plaintiff brought a motion seeking approval of a class action settlement and class counsel fees under s. 29 of the Class Proceedings Act, 1992.

The underlying action alleged that a credit card issuer charged cash advance fees and interest that could produce an effective annual interest rate exceeding the criminal interest threshold under s. 347 of the Criminal Code.

After nearly nine years of litigation and mediation, the parties agreed to an $8 million settlement fund, including cy près distribution to the Law Foundation’s Access to Justice Fund and account credits for qualifying cardholders with open accounts.

The court found the settlement fair, reasonable, and in the best interests of the class, approving the settlement and class counsel fees but declining to award an honorarium to the representative plaintiff.

Former unmarried partners disputed beneficial ownership of a house and family farm that had been transferred into joint title during their relationship.

The applicant argued the respondent held her registered interest in trust and that title had been transferred only to protect her anticipated financial contributions.

The court applied resulting trust, constructive trust, and unjust enrichment principles following Kerr v. Baranow and Pecore v. Pecore.

It concluded the transfers were not intended as a gift of beneficial ownership and that the respondent held title in trust for the applicant subject to compensation for her financial and labour contributions.

Title was ordered vested in the applicant upon payment of a monetary award reflecting the respondent’s contributions.

Following the refusal of an interlocutory injunction sought by the landlord applicants to compel a hotel operator to continue operating a hotel under a particular brand, the court determined the issue of costs.

The applicants argued that an indemnity clause in a lease entitled them to full indemnity costs from a former tenant alleged to have breached the lease.

The court held that the indemnity clause did not permit the landlord to recover litigation costs from a prior tenant where the present tenant supported the motion and where the lease’s procedures regarding a change of operating name had not been followed.

Even if the clause applied, the court would decline to exercise its discretion to award costs to the applicants.

Costs were awarded instead to the successful respondent hotel operator.

The moving party brought a motion under Rule 48.09 of the Rules of Civil Procedure seeking judgment in the terms of an alleged accepted settlement relating to companion actions for wrongful dismissal and disability benefits.

The motion sought to enforce the purported settlement agreement against the defendants.

The court relied on reasons released in a companion proceeding involving the same parties and identical relief.

For the reasons given in that related decision, the court dismissed the motion.

No costs were awarded in this proceeding because costs had already been addressed in the companion matter.

The plaintiff brought a motion under Rule 48.09 of the Rules of Civil Procedure seeking judgment enforcing an accepted settlement in a wrongful dismissal and disability benefits dispute.

Although a settlement agreement had been reached in principle, disputes arose regarding the characterization of settlement amounts, delivery of settlement documents, and requests for confirmation of the plaintiff’s capacity to enter into the agreement.

The plaintiff commenced a motion to enforce settlement before all settlement funds had been delivered.

The court found the motion to be premature and unnecessary, noting that payment timelines were reasonable given the circumstances and that no payment deadline existed in the Minutes of Settlement.

The court dismissed the motion and ordered the plaintiff to pay the defendant’s costs.

The defendants sought an injunction restraining execution of a writ of possession arising from a mortgage default judgment.

They argued enforcement should be delayed while they pursued refinancing and separate litigation concerning a third mortgage that allegedly prevented refinancing.

The court held the defendants failed to establish a serious issue to be tried or identify any legal right being interfered with, as the plaintiffs held a valid judgment for possession and there was no existing forbearance agreement.

The alleged harms from eviction were compensable in damages and did not justify injunctive relief.

The motion was dismissed and costs were awarded to the plaintiffs.