Civil Litigation - Plaintiff - SCJ

The defendants (other than Johnson Controls) brought a motion to stay the action based on alleged failure by the plaintiff and Johnson Controls to immediately disclose a settlement agreement (the Pro Rata Agreement) that they claimed changed the litigation landscape.

The court dismissed the motion, finding that timely disclosure was made in the context of this particular case and that the agreement did not change the litigation landscape because the action had been effectively stayed and the dispute was being pursued in arbitration.

The court also addressed the application of new Rule 49.14 regarding partial settlement disclosure and fashioned appropriate remedies.

Samine LLC, the successful respondent in a prior appeal, sought costs on a partial indemnity basis.

Samine requested $7,000, while the appellants, Digital Shovel Holdings Inc. and Scot Johnson (DSHI), proposed $5,192.92.

The court found Samine's requested amount reasonable, proportionate, and within the unsuccessful party's reasonable expectation, especially when compared to the time spent by DSHI's own counsel on the appeal.

The court awarded Samine LLC the full amount of $7,000 in costs.

The plaintiffs brought a medical negligence action against several physicians, nurses, and a hospital, alleging that their negligence during the plaintiff mother's labour and delivery caused the infant plaintiff to suffer a severe hypoxic-ischemic brain injury resulting in cerebral palsy.

The plaintiffs alleged that an artificial rupture of membranes was negligently performed when the fetal head was high, causing a cord prolapse.

The court found that the defendant physicians and nurses met the standard of care, with the exception of one resident physician's failure to document the events, which was not causative.

The court also concluded that the plaintiffs failed to prove factual causation, as the clinical evidence at birth was inconsistent with the infant being completely deprived of oxygen for the 18 minutes following the cord prolapse.

The action was dismissed.

The plaintiff moved for certification of a class action on behalf of debenture holders of Discovery Air Inc., alleging oppression by the defendants in a series of transactions that transferred Discovery's primary asset to Clairvest at a material discount.

Clairvest consented to certification but disputed the common issues and sought discovery directions, while the remaining defendants argued the statement of claim disclosed no cause of action against them.

The court found the pleadings sufficiently detailed to disclose a cause of action against the individual directors and the Top Aces entities.

The court certified the action, adopted a broad definition of the common issues with some additions proposed by Clairvest regarding causation and reasonable expectations, and declined to order non-party production or expanded discovery at this early stage.

The plaintiffs brought an unopposed motion to appoint Brooke Charlotte Nichol as the estate representative for the deceased plaintiff, Richard Nichol, and to amend the statement of claim accordingly.

The deceased plaintiff died during the course of the medical malpractice action, and his estate was not probated.

The court found the order necessary to allow the estate to proceed with the action and granted the requested relief.

The plaintiff brought a motion for summary judgment for $1,326,491.18 in unpaid fees for e-commerce services provided to the defendant.

The defendant argued the motion was premature and raised a counterclaim for equitable set-off, alleging the plaintiff induced a related entity to breach an inspection rights agreement.

The court found no genuine issue requiring a trial, noting the defendant failed to put its best foot forward or provide evidence of inducement.

Summary judgment was granted for the plaintiff for the full amount claimed, and the defendant's counterclaim was dismissed.

The plaintiffs brought a motion for leave to amend their Statement of Claim to add new claims under the Fraudulent Conveyances Act and the Assignments and Preferences Act, as well as claims for unjust enrichment and constructive trust.

The proposed amendments arose from a telephone conversation in which the individual defendant allegedly stated his intention to make an assignment in bankruptcy and admitted to transferring funds to avoid paying the plaintiffs.

The defendants opposed the motion, arguing the proposed amendments lacked sufficient particulars.

The court granted leave to amend for the statutory claims, finding they were legally tenable and sufficiently particularized given the plaintiffs' current knowledge.

However, the court denied the amendments for unjust enrichment and constructive trust, with leave to amend, as they lacked sufficient material facts connecting the allegations to the elements of those claims.

The defendants moved for summary judgment to dismiss a nuisance claim arising from construction noise outside permitted hours, relying on an exclusion clause in the agreement of purchase and sale (APS).

The court interpreted the APS and found that the exclusion clause did not apply to construction noise from an adjacent Phase II development occurring outside permitted hours.

The court also dismissed the separate motion to dismiss the claim against Tridel, finding insufficient evidence to establish Tridel's limited involvement and noting the elastic nature of the tort of nuisance.

The defendants' motion for summary judgment was dismissed.

The defendant brought a motion for summary judgment to dismiss the plaintiff's tort action arising from a motor vehicle collision.

The defendant argued that the plaintiff was an excluded driver under an OPCF 28A endorsement, and therefore, pursuant to s. 267.6 of the Insurance Act, was precluded from recovering damages.

The plaintiff claimed an honest but mistaken belief that the exclusion applied only to a specific vehicle and not the newly acquired vehicle involved in the accident.

The court found the excluded driver endorsement to be clear and unambiguous, applying to "ALL VEHICLES INSURED UNDER THIS WAWANESA CERTIFICATE," and deemed the plaintiff's explanations implausible.

Concluding there was no genuine issue requiring a trial, the court granted summary judgment, dismissing the plaintiff's action.

The plaintiff, Angela Fleming Halley, brought a personal injury action against the Toronto Transit Commission and Natalie Chamber after a slip and fall on a bus.

The defendants brought preliminary motions, including a summary judgment motion, to dismiss the action or strike it from the trial list.

The plaintiff, self-represented, intended to rely solely on her own testimony and had no medical evidence or documentation to establish her injuries met the statutory threshold under the Insurance Act for non-pecuniary damages, healthcare expenses, or loss of income.

The court found that the plaintiff could not adduce the necessary expert medical evidence to prove a permanent serious impairment of an important function, which is required to maintain a tort action for such damages.

Consequently, the court granted the defendants' summary judgment motion and dismissed the action.

In a proposed class action regarding youth detention centres, the plaintiff sued the Crown for negligence, breach of fiduciary duty, and Charter violations, explicitly limiting the claim to the Crown's several liability.

The Crown issued third party claims against the NGOs that operated some of the centres.

The plaintiff and the NGOs moved to strike the third party claims.

The court granted the motions, applying the principle that where a plaintiff limits their claim to the defendant's proportionate degree of fault, a third party claim for contribution and indemnity is legally untenable.

In a proposed class action regarding the use of secure isolation in youth detention centres, the Crown brought a motion seeking production of the representative plaintiff's Youth Records.

The plaintiff opposed, arguing the Superior Court lacked jurisdiction to order production under the Youth Criminal Justice Act.

The court held that while it could not directly order production of the records, it had jurisdiction under the Class Proceedings Act to order the plaintiff to apply to the Youth Justice Court for access to the records.

The court ordered the plaintiff to make the application, failing which the proposed class action would be stayed.

The defendant dentist moved for summary judgment in a dental negligence claim without filing any expert evidence on the merits of his defence, relying on previous case law suggesting defendants need not do so.

Following the release of the Court of Appeal's decision in Sanzone v. Schecter, which clarified that moving defendants must put their best evidentiary foot forward under Rule 20.01(3), the court dismissed the summary judgment motion.

The court held that the defendant failed to discharge his evidentiary burden to prove there was no genuine issue requiring a trial.

The court issued a second supplementary endorsement addressing the defendants' objections to paragraph 11 of a draft order.

The defendants, primarily Robert Symons, objected to the requirement to provide detailed financial statements and transaction records for Gerald Gordon Symons dating back to 2000, citing lack of records, formal authority as executor, and relevance.

The court dismissed these objections, affirming that the order reflected its original endorsement and that Robert Symons was expected to use best efforts to acquire the information.

The applicant, Helen Wong, brought a motion to amend her statement of claim to add three new defendants, including G4S, after the presumptive limitation period had expired.

Wong had suffered a slip and fall injury and initially sued the condominium corporation and its snow removal contractor.

New information, received after the limitation period, suggested G4S and another entity might also be liable for snow and ice removal.

G4S opposed the motion, arguing Wong failed to exercise due diligence.

The court granted the motion, finding that Wong had conducted reasonable investigations and that the incident report provided by G4S did not indicate their responsibility for exterior snow/ice removal, thus the discoverability principle applied to extend the limitation period.

The plaintiff's former lawyers brought a motion for leave to appeal a Master's order requiring them to personally pay costs thrown away and motion costs.

The costs were awarded after a law clerk inadvertently failed to book an examination for discovery.

The Superior Court granted leave to appeal, finding that the Master failed to apply the second step of the Galganov test, which requires extreme caution before ordering costs against a lawyer personally for an innocent error.

The applicant sought leave to appeal an arbitrator's decision regarding a construction dispute.

The arbitrator had granted partial summary judgment to the respondent and dismissed the applicant's counterclaim, finding the applicant failed to provide a 'claim made in writing' as required by the contract.

The applicant also sought leave to appeal the arbitrator's award of contractual interest.

The Superior Court of Justice granted leave to appeal on the issue of whether the correspondence constituted a 'claim made in writing', finding it raised an extricable question of law.

However, the court denied leave to appeal the interest award, concluding it involved a question of mixed fact and law regarding contractual interpretation.

The plaintiff brought a motion to amend the statement of claim to add a security company as a defendant after the expiry of the two‑year limitation period following a slip and fall in a condominium parking area.

The plaintiff relied on the doctrine of discoverability and argued that correspondence and later pleadings revealed the potential involvement of the security company.

The court held that the plaintiff had sufficient information within the limitation period to identify the security provider and failed to exercise due diligence in investigating its identity.

Evidence showed that the plaintiff interacted with the concierge on the day of the incident and counsel received information about the security company months before the limitation period expired.

The court concluded that the proposed claim was statute‑barred and the amendment could not be permitted.

In additional reasons following a wrongful dismissal judgment, the court determined the appropriate rate for prejudgment interest on damages awarded for reasonable notice and pension losses.

The parties agreed on the quantum of damages and the method of calculating interest but disputed the applicable interest rate under the Courts of Justice Act.

The plaintiff argued for a higher rate corresponding to the quarter when the cause of action arose, while the defendant argued the statutory rate applicable when the claim was issued should apply.

Exercising discretion under s. 130 of the Courts of Justice Act, the court held that applying an averaged interest rate over the relevant period better reflected fairness in the circumstances.

Prejudgment interest was therefore calculated using an average rate of 1.11%.

The plaintiff supplier brought a motion for summary judgment seeking payment of outstanding invoices for wholesale jewelry sold to the corporate defendant and enforcement of alleged personal guarantees by the individual defendants.

The defendants argued that returned merchandise and diamonds supplied to the plaintiff eliminated the debt and that factual disputes required a trial.

Applying the summary judgment framework under Rule 20 and the guidance in Combined Air Mechanical Services Inc. v. Flesch, the court weighed the evidence and made credibility findings on the paper record.

The court rejected the principal defendant's evidence, found the return inventory had been properly credited at original sale prices, accepted a limited credit for diamonds, and held that the corporate defendant remained indebted.

The court also found an enforceable oral personal guarantee by one individual defendant but not by the others.