Civil Litigation - Plaintiff - SCJ

The plaintiff brought a motion to set aside a registrar's administrative dismissal of an action for delay.

The action arose from a disputed power of sale process undertaken by the defendants as mortgagees in October 2014.

The plaintiff commenced the action in March 2015 seeking $300,000 in damages and an accounting.

Over nearly ten years, the action proceeded only through pleadings and exchange of affidavits of documents, with examinations for discovery never occurring.

The court dismissed the motion, finding that the plaintiff failed to provide a satisfactory explanation for the extensive litigation delay, failed to demonstrate a genuine intention to prosecute the action, and that significant prejudice resulted from the delay, including the death of a key witness with firsthand knowledge of the disputed events.

The applicant law firm brought an application seeking a declaration that it had a valid and binding retainer agreement with the respondent, and an order assessing its legal fees.

The respondent alleged the retainer agreement produced by the applicant was a forgery and that the applicant settled matters without authorization.

The court found that a valid retainer agreement existed and that the respondent had provided clear instructions to accept a global settlement.

However, the court declined to assess the accounts itself, referring the matter back to an assessment officer.

The defendant requested the dismissal of the plaintiff's action under Rule 2.1 of the Rules of Civil Procedure, arguing it was frivolous, vexatious, and an abuse of process.

The plaintiff's amended claim contained numerous bizarre allegations, including monitoring by Satanic signs and media control, but also included allegations of sexual assault.

The court declined to dismiss the proceeding under Rule 2.1, finding that because a small portion of the claim could amount to a tenable cause of action, the rule's all-or-nothing approach prevented dismissal of the entire proceeding.

The defendant's request was dismissed, leaving them free to proceed under Rule 20 or 21.

The respondent brought a motion requiring the applicants to post security for costs and pay outstanding costs awards before proceeding with their application regarding a hotel development dispute.

The court found that the respondent was prima facie entitled to security for costs under Rule 56.01 and that the applicants failed to establish impecuniosity or a real possibility of success.

The court ordered the applicants to pay $22,748.74 in outstanding costs and post $50,000 in security for costs within 30 days, staying the application until compliance.

The respondent brought a motion to strike the applicant's pleadings and a separate motion for contempt, both based on substantially similar allegations of breaching court orders.

The applicant brought a motion to stay the motion to strike pending the disposition of the contempt motion, arguing that responding to the motion to strike would effectively compel him to testify and violate his right against self-incrimination in the quasi-criminal contempt proceeding.

The court agreed, finding that the applicant's right to a fair trial on the contempt motion would be prejudiced if he were forced to respond to the civil motion to strike first.

The court ordered the motion to strike stayed pending the resolution of the contempt motion.

Following dismissal of a malicious prosecution action for delay and the subsequent dismissal of a motion to set aside the registrar’s order, the court addressed costs.

The responding police defendants sought partial indemnity costs and reduced their request due to the moving party’s limited financial means.

The moving party argued that costs should not be awarded on public policy and access to justice grounds, relying on authorities where unsuccessful litigants were spared costs to avoid discouraging public interest litigation.

The court distinguished those authorities because the action had not been adjudicated on its merits but had been dismissed for delay and failure to comply with procedural rules.

Costs were awarded in a reduced amount payable within six months.

A long‑serving employee brought a motion for summary judgment in a wrongful dismissal action seeking 24 months’ notice or, alternatively, statutory severance under the Employment Standards Act, 2000.

The court held that the employee’s entitlement to statutory severance pay could be determined summarily because the undisputed evidence established over 40 years of continuous employment and a payroll exceeding the statutory threshold.

Partial summary judgment was therefore granted for the maximum 26 weeks’ severance pay.

However, the broader claim for wrongful dismissal damages could not be determined because there was no evidence regarding post‑termination income or mitigation.

The remainder of the claim was directed to proceed to trial.

Following a motion concerning the validity of an infant settlement within a global personal injury settlement, the court addressed costs.

The plaintiffs had successfully obtained an order setting aside the global settlement after it was discovered that required judicial approval of the infant settlement had never been sought.

The failure arose from the plaintiffs’ former counsel breaching an undertaking to obtain approval, while defence counsel failed to follow up on the undertaking.

The court concluded that both sides bore responsibility for the procedural failure that rendered the settlement vulnerable.

In the circumstances, the court ordered that each party bear their own costs.

The appellant appealed a Small Claims Court decision dismissing its $10,000 breach of contract claim against the respondent for a cancelled convention hall booking.

The trial judge found the parties had mutually agreed to cancel the contract and that the cancellation clause was an unenforceable penalty rather than a genuine pre-estimate of damages.

The Superior Court of Justice dismissed the appeal, finding no error in the trial judge's assessment of the evidence, credibility findings, or conclusion that the damages claimed were arbitrary and excessive.

The plaintiffs appealed a master's order dismissing their motion for answers to refusals arising from an examination for discovery.

The master held that because the action had been set down for trial, the plaintiffs required leave under rule 48.04 of the Rules of Civil Procedure to bring a refusals motion, and no such leave had been sought.

The appeal court reviewed conflicting jurisprudence on whether leave is required for refusals motions after an action is set down for trial.

The court endorsed the line of authority requiring leave and found that the master properly exercised discretion in declining to hear the motion in the absence of a request for leave.

The appeal was dismissed, though the plaintiffs remained at liberty to seek leave to bring a refusals motion.

The plaintiff alleged that he was induced to leave secure employment by fraudulent misrepresentations that he would become a partner in a siding installation business and share profits.

During trial the theory shifted to deceit and fraudulent misrepresentation, with the plaintiff claiming the defendants planned from the outset to terminate him after he secured new builder clients.

The court held the evidence did not support allegations of fraud, misrepresentation, or a partnership agreement.

The plaintiff was engaged as a commissioned salesperson entitled to a percentage of profits from business he personally generated.

Claims based on unjust enrichment also failed because obtaining new business was precisely the work for which the plaintiff was paid.

The defendant neurologist brought a motion for summary judgment seeking dismissal of a medical negligence claim as statute‑barred under the Limitations Act, 2002.

The plaintiffs alleged negligence arising from emergency room treatment preceding a stroke, asserting that the neurologist consulted during the visit may have contributed to the failure to diagnose and treat.

The defendant argued the claim was commenced more than two years after the plaintiffs knew or ought to have known the material facts supporting the claim.

The court held that discoverability was complex in the circumstances due to conflicting expert opinions and uncertainty regarding the neurologist’s role, and concluded that a genuine issue requiring a trial existed.

The motion for summary judgment was therefore premature.

The plaintiffs brought a motion under Rule 26.01 of the Rules of Civil Procedure seeking leave to amend their statement of claim in an action alleging breach of contract, misrepresentation, negligence, trespass, breach of good faith, and unjust enrichment arising from agreements permitting advertising on municipal waste bins.

The defendant opposed certain amendments on the basis that they introduced new causes of action after the expiry of the applicable limitation period.

The court held that the proposed amendments merely provided additional particulars and factual context for an already pleaded breach of good faith claim related to the alleged non-disclosure of municipal advertising directives.

Because the amendments did not advance a new cause of action, the limitation period concern did not bar them.

Leave to amend the statement of claim was granted.

The defendant moved under Rule 21.01(c) of the Rules of Civil Procedure to stay or dismiss an Ontario wrongful dismissal action on the basis that the court lacked jurisdiction and that North Carolina was the more appropriate forum.

The moving party relied on contractual terms stating that the agreement was governed by the laws of North Carolina and argued that related proceedings had already been commenced there.

The responding party argued that she had worked in Ontario for 27 years, was paid in Canadian dollars through a Canadian bank, and that the termination occurred in Ontario.

Applying the forum non conveniens principles articulated in Van Breda and subsequent appellate authority, the court held that the defendant had not met the high burden required to displace the plaintiff’s chosen forum.

Ontario was found to be the appropriate forum given the location of the plaintiff, witnesses, and the employment relationship.

The assignee of a mortgagee brought a motion for summary judgment seeking dismissal of a contractor’s lien action and return of funds paid into court as security for the lien.

The moving party argued the lien was invalid because it was registered beyond the 45‑day period following publication of the certificate of substantial performance and because certain change orders and delay claims were not approved by the architect as required by the contract.

The contractor maintained that additional work continued after substantial performance through change orders and that delay costs and a municipal fine were approved by the lender acting as payment certifier.

The court held that genuine issues for trial existed regarding whether change orders and delay costs were properly approved, whether the lender could act as substitute certifier under industry practice or implied contractual terms, and whether the lien was timely preserved.

Summary judgment was therefore inappropriate.

The plaintiff bank brought a motion for summary judgment to enforce a personal guarantee executed by a defendant in respect of a small business loan to a corporation operating a pub.

The guarantor argued that the guarantee was conditional upon finalizing a business arrangement with another participant and alternatively that the document was to be held in escrow.

The court held that the guarantee was expressly described as continuing, absolute, and unconditional and required any alteration or waiver to be in writing.

Applying the parol evidence rule and authorities from the Supreme Court of Canada, the court found that alleged oral conditions or collateral agreements could not vary the written terms of the guarantee.

Summary judgment was granted in favour of the bank for the guaranteed amount plus interest.

Following a trial concerning allegations of negligence by municipal officials relating to the requirement of a building permit for a deck constructed at a multi-unit residential property, the plaintiffs were unsuccessful.

The plaintiffs had originally advanced a claim for malicious prosecution but abandoned it shortly before trial, while continuing to seek aggravated and punitive damages based on allegations of improper and dishonest conduct by municipal officials.

The defendant municipality sought substantial indemnity costs, arguing that the plaintiffs pursued speculative and serious allegations without evidentiary foundation and forced extensive preparation, including for claims later withdrawn.

The court found the plaintiffs advanced excessive and unfounded allegations and had rejected several settlement offers from the defendant.

Substantial indemnity costs were therefore justified, though the court reduced the quantum sought and fixed costs at $70,000 inclusive of HST.

Commercial dispute arising from an insurance brokerage joining a broker network.

The plaintiff alleged that an enforceable agreement existed under which it would receive a 25% ownership interest in the brokerage and 7.5% of commissions in exchange for services and access to insurance markets and systems.

The defendants argued that no binding agreement was formed because formal documents were never signed.

The court held that the parties reached agreement on essential terms and manifested an intention to be bound through conduct, including issuance of shares, regulatory arrangements, and operational participation in the network.

The defendants repudiated the agreement, and the plaintiff was entitled to damages for breach of contract and additional recovery on a quantum meruit basis for a post-repudiation period.

The defendants brought a motion under Rule 25.11 of the Rules of Civil Procedure to strike portions of the statement of claim in a civil action alleging intentional interference with economic relations, inducing breach of contract, misfeasance in public office, and Charter damages arising from a police investigation that allegedly led to the plaintiff’s termination from employment.

The impugned paragraphs referred to information obtained through a public complaints investigation under the Police Services Act.

The court held that sections 83 and 95 of the Police Services Act create a statutory privilege rendering documents, statements, and information obtained during the complaints process inadmissible in civil proceedings.

Allegations based on such privileged material were therefore struck.

However, the court permitted allegations relating to the fact that a complaint was made and the reasons for it, as those facts were not protected by the statutory privilege and could be relevant to the pleaded claims.

The self‑represented plaintiff in a legal malpractice action brought a motion under Rule 26.01 of the Rules of Civil Procedure seeking leave to amend her amended statement of claim.

The proposed amended pleading was 236 pages long and contained extensive allegations including claims involving non‑parties, pleas of evidence rather than material facts, scandalous allegations, constitutionally flawed assertions, and claims that were statute‑barred or otherwise untenable.

The court held that leave to amend should be refused where proposed amendments are clearly impossible of success or constitute an abuse of process.

The court concluded that the proposed pleading was fundamentally flawed and non‑compliant with pleading rules requiring concise statements of material facts.

The motion for leave to amend was dismissed with prejudice in respect of the untenable allegations.