Civil Litigation - Plaintiff - SCJ

The Plaintiff, Nordik Windows Inc., was successful in a certification motion and related motions.

This endorsement addresses the costs for these motions, which involved two rounds of hearings due to a recusal by the initial judge.

The court determined the appropriate costs, considering the re-usable work from the first hearing and the work for the second hearing, ultimately awarding the Plaintiff $1,000,000.00 in all-inclusive costs.

The appellant, a class member in a train derailment class action who had an individual trial for damages, brought a motion to set aside a Registrar's order dismissing his appeal for delay and to extend the time to perfect the appeal.

The court applied the test for setting aside a dismissal for delay, noting that the appellant had a continuous intention to appeal, provided a reasonable explanation for the delay related to difficulties in settling the trial judge's orders, and that the respondents suffered no prejudice.

Crucially, the court found that the appellant had an arguable case on appeal regarding the trial judge's credibility assessments and evidentiary rulings.

The motion was granted, the dismissal was set aside, and the appellant was granted an extension of time to perfect the appeal.

The applicant brought an application in Barrie seeking a declaration that a property transfer between the respondent husband and wife in Port Dover was a fraudulent conveyance.

The respondents argued the application was brought in the wrong jurisdiction and should proceed as an action.

The court stayed the proceeding, finding that under Rule 13.1.01(3) the matter relates to a mortgage and must be heard in the Central South Region where the property is located.

The court also directed that the application be converted to an action, as the subjective intent of the parties in transferring the property is a material fact in dispute requiring credibility determinations.

A case conference was held following a Supreme Court of Canada decision that limited the class to personal users of the defendants' cell phone services.

The defendants intended to bring motions to enforce a costs ruling and revisit the certification order.

The plaintiff sought to proceed with examinations for discovery, while the defendants preferred to wait until after their motions were heard.

The court ordered that the discovery process proceed in tandem with the motions, as the issues raised by the defendants were primarily legal and would not significantly impact the scope of discoveries.

Following the dismissal of the applicant's application and the granting of the respondent's counter-application, the court determined costs.

The applicant argued that proposed Minutes of Settlement sent to the respondent constituted a Rule 49 offer.

The court found that the email attaching the Minutes explicitly stated counsel did not have instructions, and therefore it was not a valid Rule 49 offer.

The successful respondent was awarded costs of $10,509.75 on a partial indemnity basis.

The defendants in a defamation action brought a motion to dismiss the proceeding under the anti-SLAPP provisions of the Courts of Justice Act, and a motion to strike portions of the statement of claim.

The defamation claim arose from anonymous letters distributed to condominium residents alleging corruption by the plaintiffs, who were current or former board members.

The court dismissed the anti-SLAPP motion, finding that the defendants could not rely on the provision while denying they made the statements, and that in any event, condominium board politics do not constitute a matter of public interest.

The court granted the motion to strike in part, removing paragraphs from the statement of claim that were irrelevant and vexatious.

The plaintiffs, Iris Powell and The Classic Plus Woman Inc., brought an action against multiple defendants concerning an advance of money.

The court found that Powell advanced $20,000 as a loan to Mohamed Afzal Sahadat, which was then directed to corporations controlled by Ishan Dhanapala for a membership in an investment club related to a condominium project.

Sahadat was obligated to repay $20,000 plus a 39.5% premium ($7,900), totaling $27,900, payable on demand, less $1,100 already repaid.

The court dismissed claims against other defendants (Sean Silva, Ishan Dhanapala, Dhana Corporation, FFCS Ltd.) and found that The Classic Plus Woman Inc. lacked standing.

Powell's claim for consequential business losses was denied, adhering to the principle that damages for failure to pay a debt are generally limited to interest unless special circumstances exist.

The Alliance to Protect Prince Edward County (APPEC) sought a declaration that a Feed-In-Tariff (FIT) Contract between the Independent Electricity System Operator (IESO) and WPD White Pines Wind Incorporated (White Pines) was null and void, arguing White Pines failed to meet contractual capacity requirements.

APPEC also raised issues of legitimate expectations and negligent misrepresentation by IESO.

The court dismissed APPEC's application, finding that the doctrine of legitimate expectations did not apply as it creates procedural, not substantive, rights, and APPEC was not a party to the contract.

Furthermore, no special relationship existed to support a claim of negligent misrepresentation, and IESO and White Pines properly amended their contract in accordance with the FIT Rules and the Environmental Review Tribunal's decision.

The applicants sought an order recognizing and enforcing an arbitral award of $400,000 made by a religious arbitral tribunal (Beth Din).

The respondents opposed, arguing the award was not yet binding as the tribunal had indicated a willingness to consider additional issues regarding costs and damages.

The court dismissed the application, finding that the arbitration process was not yet complete and the tribunal was not functus officio, applying the competence-competence principle to defer to the tribunal's jurisdiction.

The Plaintiffs, a dentist and her professional corporation, brought a motion under Rule 21.01(1)(b) to strike paragraphs 6, 7, and 8 of the Statement of Defence and Counterclaim, which pleaded the defences of justification, qualified privilege, and fair comment in a defamation action.

Alternatively, they sought an order for particulars under Rule 25.10.

The court dismissed the motion, finding that the Plaintiffs were seeking evidence rather than material facts necessary for pleading.

The court emphasized that pleadings must contain sufficient information for the opposing party to know the case to meet, but not the evidence by which facts are proved.

The court also criticized the motion as unnecessary and a waste of judicial resources.

The appellant appealed an assessment officer’s decision approving a solicitor’s fees of $75,000 plus $5,000 in assessment costs.

The appellant argued the award was unreasonably high and alleged several errors in principle, including failure to consider certain emails, improper consideration of pleadings, abusive conduct by the lawyer, and inability to pay.

The court held that the assessment officer considered the relevant evidence, applied the correct burden of proof, and made no palpable and overriding errors of fact.

The appellant failed to identify any error in principle in the assessment decision.

The appeal was therefore dismissed and costs were awarded against the appellant.

Following a discovery-related motion concerning production of documents and claims of solicitor‑client privilege, the defendant sought costs exceeding $55,000 on a partial indemnity basis.

The plaintiff, who was self‑represented, had largely failed on the underlying motion, obtaining production of only one document and clarification of indexing in the affidavit of documents.

Applying the factors under Rule 57 of the Rules of Civil Procedure, including success, proportionality, and the reasonable expectations of the losing party, the court concluded the amount sought was excessive.

The court reduced the recoverable fees to $25,000 plus HST and limited disbursements.

Costs were ordered payable in any event of the cause.

The defendant moved to set aside a noting in default in a construction lien action, arguing that the statement of claim had not been properly served and that it did not come to its attention before the deadline to deliver a defence.

The court held that service was valid under both the Rules of Civil Procedure and the Construction Lien Act because the claim was left with a person appearing to be in control of the registered business address and was also served by registered mail to the address listed in a registered lien document.

The court further found the defendant failed to demonstrate a reasonable explanation for not defending, failed to establish a continuous intention to defend, and failed to provide evidence of a meritorious defence as required by s. 54 of the Act.

Bare denials and unsupported allegations regarding lien preservation, perfection, and alleged accounting discrepancies were insufficient.

The motion to set aside the noting in default was dismissed.

The moving party sought to set aside a noting in default in a construction lien action, arguing improper service of the statement of claim and lack of awareness of the proceeding.

The court held that service by mail was valid under the Rules of Civil Procedure after the process server attended at the corporation’s recorded address and could not effect personal service.

The moving party failed to provide a satisfactory explanation for failing to deliver a defence, failed to demonstrate a continuous intention to defend, and provided no evidence supporting a meritorious defence as required under the Construction Lien Act.

Bare denials in a proposed statement of defence were insufficient.

The court therefore declined to grant relief from default.

The plaintiff sought damages for negligence arising from a motorcycle collision in which a rider lost control, crossed the centre line, and struck the plaintiff’s vehicle, causing death and serious injury.

The court considered whether two other motorcyclists riding with the deceased rider were negligent and contributed to the accident.

Evidence included their guilty pleas under the Highway Traffic Act and video footage showing excessive speeds, unsafe lane changes, and stunt riding during the group ride.

The court found that the three motorcyclists were engaged in a joint venture involving unlawful and dangerous driving that created a foreseeable risk of serious harm to other road users.

The two defendants were each found 25 per cent liable for the plaintiff’s damages, jointly and severally.

The defendants brought summary judgment motions seeking dismissal of a motor vehicle accident claim on the basis that the action was commenced outside the limitation period under the Limitations Act.

The plaintiff issued the claim nearly nine years after the accident and argued that discoverability did not arise until later diagnostic imaging revealed more serious injuries.

The court held that the plaintiff had ongoing and worsening symptoms for many years and failed to exercise due diligence in investigating the possibility of a serious and permanent impairment.

Applying the discoverability principles and relevant appellate authority, the court concluded that a reasonable person would have investigated the injuries much earlier.

The claim was therefore statute‑barred and summary judgment was appropriate.

The court was asked to determine the amount of debts owed by a religious foundation to various individuals who allegedly advanced funds used to purchase a church property and whether those debts should be paid from the proceeds of the property’s sale held in trust.

The moving parties asserted numerous loans, while the opposing faction disputed several claims and challenged the sufficiency of the evidence.

Applying principles relating to burden of proof, credibility in undocumented loan transactions, and adverse inferences for missing evidence, the court reviewed each claimed advance individually.

The court accepted certain claims supported by documentary evidence, including mortgage-related advances and payments made to satisfy obligations to a vendor mortgagee.

Other claims were rejected where evidence was inconsistent, unsupported, or contradicted by banking records.

The court ordered payment of specific sums from the sale proceeds to certain creditors, including the Kabelu parties and two additional lenders.

The defendant appealed a master's order requiring production of a lawyer's handwritten notes taken during a voluntary interview with the plaintiff when he was a potential witness in related litigation.

The defendant argued the notes were protected by litigation privilege as counsel's work product.

The court held that, to the extent the notes merely recorded the plaintiff's statements, litigation privilege did not apply because a party cannot claim confidentiality over statements made by the opposing party.

However, portions of the notes reflecting counsel's commentary, strategy, or analysis could remain privileged and be redacted.

The appeal was dismissed and the master's order permitting production with potential redactions was upheld.

The applicant sought a stay of a Master's order discharging a certificate of pending litigation over a development property pending appeal.

Applying the three‑part test for a stay, the court found the applicant failed to establish irreparable harm because the property was a commercial investment and any loss could be compensated through damages.

The court also held the balance of convenience favoured allowing the pending sale to a third‑party purchaser to proceed, noting the applicant’s weak claim to beneficial ownership and the uncertainty surrounding an alternative offer arranged by the applicant.

The motion for a stay was dismissed.

The defendant lottery authority brought a motion for summary judgment dismissing an action in which the plaintiff alleged he was deprived of a $1 million instant lottery prize after leaving a purported winning ticket with a retailer clerk.

The plaintiff asserted breach of contract against the lottery authority and discontinued claims against the retailer defendants.

The court held that under the rules of the lottery game, a claimant must present the winning ticket to claim a prize and that a lost or stolen ticket is void unless the authority exercises its discretion to accept it.

The authority had conducted investigations and reasonably declined to exercise that discretion, and there was no evidence supporting the allegation that the retailer stole a winning ticket.

In any event, the action was statute‑barred under the applicable limitation periods.

Summary judgment was granted dismissing the claim.