Civil Litigation - Plaintiff - SCJ

The plaintiff, Jaymat Limited, brought a motion for summary judgment against the defendants, Vivo Pizza Pasta Franchising Inc. and Pino Trichilo, for repayment of advances made in respect of several restaurant locations.

The court found that the advances, initially ambiguous as to whether they were loans or equity, were ultimately confirmed as loans by a promissory note signed in October 2021.

The court held that both defendants received consideration for signing the note, and that the note was enforceable.

Judgment was granted to the plaintiff for $2,100,000 plus interest, with leave to amend the corporate defendant’s name.

Following a trial where both the plaintiffs' claim and the defendant's counterclaim were dismissed, the court determined the issue of costs.

The plaintiffs had made two global offers to settle that were not accepted by the defendant.

Although the offers did not strictly comply with Rule 49.10, the court considered them under Rule 57.01 and section 131(1) of the Courts of Justice Act.

The court found that the defendant should have accepted the reasonable offers and ordered the defendant to pay the plaintiffs $80,657.12 in partial indemnity costs, inclusive of HST and disbursements.

This motion concerned the enforcement of a settlement agreement reached in open court regarding three complex estate applications.

The respondent, David Chong, sought to resile from the settlement, claiming duress, lack of comprehension, and fraudulent misrepresentation, and arguing the terms were unconscionable.

The court found David's reasons for resiling contradictory and uncorroborated, particularly in light of his former counsel's evidence.

The court dismissed the respondent's arguments, finding no inequality in bargaining power, no duress, and no fraudulent misrepresentation.

The court ordered the immediate sale of the property as per the settlement terms and fixed costs against the respondent.

This motion for directions concerned the release of garnished funds held by the City of Thunder Bay.

The Plaintiff/Creditor, Mirmil Products, had a judgment against the Defendant/Debtor, Man-Shield (NWO) Construction Inc. (Manshield).

Manshield challenged the garnishment, arguing the funds were owed to a different entity, MBuilds (NWO) Limited Partnership, or were subject to a statutory trust under the Construction Act.

The court found that the City owed the funds to Manshield, not MBuilds, and that the corporate name change did not alter the entity's identity or obligations.

The court also dismissed the trust argument, finding it irrelevant as all subtrades were paid.

The motion for directions was granted, ordering the garnished funds to be paid to Mirmil Products.

The plaintiffs in a complex commercial defamation action brought a refusals motion seeking to compel the defendants to answer discovery questions relating to past campaigns and acts of civil disobedience.

The court dismissed the motion, finding that a prior Divisional Court decision had already determined that the defendants' past campaigns were irrelevant to the action.

The court also found that the questions sought similar fact evidence and raised proportionality concerns.

The motion was dismissed with costs awarded to the defendants.

The applicants, including a legal clinic and family friends, brought applications under s. 140 of the Courts of Justice Act to have the respondent declared a vexatious litigant.

The respondent had engaged in years of relentless litigation across multiple jurisdictions following his teenage daughter's decision to withdraw from his custody, repeatedly alleging abduction, fraud, and conspiracy against anyone involved.

The court found that the respondent persistently and without reasonable grounds instituted vexatious proceedings and conducted them in a vexatious manner, continually attempting to re-litigate issues already decided against him.

The applications were granted, the respondent was declared a vexatious litigant, and he was prohibited from instituting or continuing related proceedings without leave of the court.

MarshallZehr Group Inc. (MZ) brought a summary judgment motion against Ideal Developments Inc. (Ideal) seeking payment of charges after MZ cancelled a $15.2 million loan commitment and dismissal of Ideal's counterclaim for alleged wrongful termination.

The court found that MZ lawfully cancelled the loan pursuant to a cancellation provision in the commitment letter, which did not require notice or a cure period as argued by Ideal under the default provisions.

The court granted summary judgment to MZ for $508,071.09, comprising standby interest, lender's fees, and expenses, and dismissed Ideal's counterclaim.

The Town of Lincoln sought a declaration that AIG Insurance Company of Canada had a duty to defend it under a public entity general insurance policy.

The Town was a defendant in a negligence action alleging sewage overflow due to a ruptured pipe, disrepair of a storm sewer, and improper land grading.

AIG denied coverage based on a pollution exclusion clause.

The court found that the claim against the Town had two branches: one related to the pumping station and sewage flood (potentially subject to exclusion), and another related to the storm sewers and land grading (not subject to the exclusion).

As the second branch was not derivative and concerned a different wrongdoing, the pollution exclusion did not apply to it.

Therefore, the insurer had a duty to defend.

The plaintiff mother brought a motion for summary judgment against her defendant son for an outstanding loan debt, specifically seeking to enforce an alleged agreement to increase the interest rate on a portion of the debt from 5% to 10%.

The court reviewed email correspondence between the parties and a third-party lender.

The court found there was no meeting of the minds, as the son agreed to the higher interest rate only in exchange for delayed payment terms, which the mother explicitly rejected.

Consequently, the motion for the increased interest rate was dismissed, and the original 5% rate remained applicable.

The defendant brought a motion under section 137.1 of the Courts of Justice Act to dismiss the plaintiff's defamation action.

The action arose from Facebook posts made by the defendant alleging workplace harassment and poor business practices by the plaintiff travel agency following a dispute with a former employee.

The court found that while the expression related to a matter of public interest, the plaintiff's claim had sufficient merit and the harm suffered was serious enough that the public interest in allowing the action to proceed outweighed the public interest in protecting the expression.

The motion was dismissed.

The defendants brought a motion for a declaration that the plaintiff's construction lien had expired pursuant to s. 37(1) of the Construction Act, and for the return of security paid into court.

The court found that the lien had clearly expired because the plaintiff failed to set the action down for trial within two years.

The court declared the lien expired and ordered the return of the security.

However, the court declined to dismiss the underlying action for quantum meruit, holding that the expiration of the lien does not extinguish the underlying cause of action.

The applicant, operating a tree-service business as a sole proprietor under the name 'Arbor-Aide', brought an application alleging the respondent corporation, 'Arbor Aid Ltd.', passed off its business as the applicant's contrary to the Trade-Marks Act and common law.

The court dismissed the application, finding the applicant failed to establish the requisite goodwill in the respondent's geographic area of operation.

Furthermore, the court found no likelihood of confusion given the descriptive nature of the names, visual differences, and distinct business models, and concluded there was no evidence of actual or potential damages.

The defendant brought motions for leave to amend his counterclaim to add a claim for misappropriation of founder shares, for substituted service, and for document production.

The court dismissed the motion to amend, finding the defendant lacked standing to assert a claim on behalf of his nominee corporation and that the dispute was subject to an international arbitration agreement.

The request for substituted service was also dismissed due to a lack of evidence of impracticability.

However, the court ordered the plaintiff to produce relevant corporate documents within his power.

The defendant bank brought a motion to strike the plaintiffs' action under Rules 21.01(1)(b) and 21.01(3)(d) of the Rules of Civil Procedure.

The plaintiffs had previously sued the bank in a separate action arising from a mortgage dispute, which was dismissed.

In this new action, the plaintiffs claimed damages for abuse of process, harassment, and intentional infliction of emotional distress based on the bank's conduct in the prior litigation.

The court granted the motion to strike, finding the new action was an abuse of process and an attempt to relitigate issues that were or should have been raised in the previous proceeding.

The court also held that the claim disclosed no reasonable cause of action, as the stress of litigation is not independently compensable.

The defendants brought a motion for non-suit to dismiss the plaintiff's malicious prosecution claim and to withdraw the defence of qualified privilege from the jury regarding the plaintiff's defamation counterclaim.

The court granted the non-suit, finding no evidence that the defendants initiated the criminal proceedings, as the police exercised independent discretion.

The court also withdrew the defence of qualified privilege, ruling that statements made by the plaintiffs to a priest were not made on an occasion of qualified privilege.

The plaintiff successfully obtained an interim injunction against the defendants during a labour strike that was causing significant delays to the plaintiff's operations.

The only remaining issue was the quantum of costs.

The plaintiff sought over $205,000, including significant disbursements for private investigators, while the defendants suggested $15,000.

The court found the plaintiff's claimed costs excessive and punitive, noting the legal and factual issues were straightforward.

The court awarded the plaintiff a total of $37,083.80, which included a significantly reduced allowance for the investigator disbursements and legal fees.

A former senior employee moved to set aside an ex parte Anton Piller Order obtained by his former employer after he resigned and joined a competing shipbuilding company.

The employer alleged the employee had downloaded thousands of pages of confidential documents and might misuse them in connection with government shipbuilding bids.

On review, the court held that the stringent requirements for an Anton Piller order were not met, particularly the requirements of very serious damage and a real risk that evidence would be destroyed.

The court also found that the moving party had failed to make full and frank disclosure on the ex parte motion, including misstatements regarding an alleged competing government bid and the competitive relationship between the companies.

Given the absence of serious harm, the availability of less intrusive remedies, and the disclosure deficiencies, the Anton Piller order was set aside.

In a personal injury settlement involving a catastrophically injured plaintiff under disability, the court addressed issues arising from a contingency fee agreement between the plaintiff’s solicitors and the litigation guardian.

Following a prior appeal that determined fairness at the time the agreement was made but remitted the issue of reasonableness for determination, the motions judge issued directions requiring independent counsel for the incapable plaintiff and the canvassing of potential conflicts involving the Public Guardian and Trustee.

Counsel for the solicitors alleged judicial bias and sought the judge’s recusal.

The court rejected the allegation of bias, explaining that its interventions were aimed at ensuring proper representation and protection of the interests of the disabled plaintiff under Rule 7 and the court’s parens patriae jurisdiction.

Nevertheless, the judge concluded that recusal was appropriate to avoid protracted litigation and to allow the issues to be determined by another motions judge.

The defendants moved to set aside a default judgment obtained in a mortgage action.

Applying the three-part test under Rule 19.08 of the Rules of Civil Procedure—delay, explanation for default, and arguable defence—the court found the circumstances surrounding service explained the default and accepted the delay as largely attributable to litigation scheduling and negotiations.

However, the defendants failed to demonstrate a defence on the merits to the existence of the debt under the registered mortgage.

The court declined to set aside the default judgment but ordered a trial of an issue in the nature of a reference to address apportionment issues arising from the broader financial relationship between the parties.

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.