Civil Litigation - Plaintiff - SCJ

The applicant neighbours sought declarations, injunctions, and damages to prevent the respondents from using an eight-foot right of way across the applicants' property for motor vehicle access.

The applicants alleged the right of way was intended only for pedestrian use and that the respondents' vehicles repeatedly trespassed and caused damage.

The Superior Court of Justice dismissed the application, finding that the original 1905 grant and 1973 modification did not restrict the easement to pedestrian use, and that motor vehicle access was within the reasonable contemplation of the parties.

The court further held that the right of way was safe for vehicular use and that any minor incursions were de minimis, resulting in no compensable damages.

This case involved a dispute between former real estate investment partners regarding the nature and scope of their oral agreement.

The plaintiffs, Anish Gupta and Gurpal Sani, sought a declaration that a second property, Torbram Road, was part of their partnership with the defendants, Kamaljit Chauhan and Gurbir Chauhan, and that the defendants had misappropriated partnership funds.

The court found that an oral partnership agreement existed for both properties (Para Place and Torbram Road), and that the defendants breached their fiduciary duties by selling Torbram Road and using the proceeds to purchase their personal residence (Burlwood Road) without accounting to the plaintiffs.

The plaintiffs were declared beneficial owners of Burlwood Road via a resulting trust and awarded damages.

A claim for punitive damages was dismissed due to the absence of an independent actionable wrong.

The plaintiff estate administrator brought an action alleging that the deceased's daughter, acting as power of attorney, fraudulently transferred the deceased's farm properties to another daughter and son-in-law in 1997.

The court found no evidence of fraud or conspiracy, concluding that the deceased had authorized the transfers.

The court also held that any claim for the unpaid balance of the purchase price was barred by the 15-year ultimate limitation period under the Limitations Act, 2002.

The defendants' counterclaim regarding the severance of a joint tenancy was also dismissed.

The applicant in a family law proceeding brought a motion to amend her pleadings to add her spouse's corporation as a third party, seeking repayment of alleged demand loans.

The corporation opposed the motion, arguing that the limitation period had expired because the original family law application constituted a demand for payment.

The court allowed the motion, finding it was not plain and obvious that the original application, which named only the spouse, constituted a clear and unequivocal demand to the corporation itself.

The applicant was permitted to amend her reply to add the corporation as a party.

The defendant and plaintiff by counterclaim, Donald Wright, brought a motion seeking leave to amend his statement of defence and counterclaim and to compel answers to certain follow-up discovery questions.

The responding parties opposed the motion and sought to strike an affidavit.

The Master granted leave to amend the pleadings, finding no new cause of action or non-compensable prejudice.

The Master also ruled on the follow-up questions, ordering one to be answered and two not to be answered.

The preliminary issue regarding the striking of an affidavit was dismissed.

The court issued a costs endorsement following mixed results on related motions, which included certifying a class action for intrusion upon seclusion, dismissing a motion to appoint a new representative plaintiff, granting summary judgment for the defendants on a negligence claim, and dismissing the defendants' summary judgment motion on the intrusion upon seclusion claim.

Given the mixed outcomes, the novelty of the intrusion upon seclusion tort in this context, and the potentially modest damages, the court ordered that costs of these motions shall be in the cause of the common issues trial.

The defendant in a $195 million procurement dispute served summonses on three non-party witnesses for examination prior to a summary judgment motion.

The non-parties and plaintiffs moved to quash the summonses, arguing they were an abuse of process due to short notice, failure to provide relevant pleadings, and overly broad document requests.

The court agreed, finding the defendant's conduct in serving the summonses and refusing a brief postponement constituted an abuse of process.

The summonses were quashed, and the defendant's motion to compel answers to refusals was dismissed.

The defendant brought a motion to compel the plaintiff to answer questions refused during her examination for discovery in a wrongful dismissal and whistleblower retaliation action.

The questions sought the identities of confidential informants who provided the plaintiff with information about her termination and an internal investigation.

The court upheld the plaintiff's refusals regarding her termination, finding the identities irrelevant.

However, the court ordered the plaintiff to disclose the source of her information regarding the HR director's presentation, as the communication did not meet the Wigmore criteria for common law privilege.

The plaintiff moved under Rule 37.14(1) to set aside an order dismissing its construction lien action.

The action had been dismissed after the plaintiff failed to attend a motion following the removal of its former counsel of record.

The court found that the plaintiff did not receive actual notice of the removal order and that its failure to attend the dismissal motion was due to an accident or mistake by its president, who mistakenly believed former counsel would attend.

The court set aside the dismissal order, finding the plaintiff moved forthwith, without unreasonable delay, and that the defendant would not be prejudiced.

The parties sought clarification on whether the court's previous costs order, which declined to award costs due to a mixed result on summary judgment motions, also applied to the costs of defending a dismissed counterclaim.

The court issued an addendum clarifying that the previous order applied only to the summary judgment motions and established a timetable for written submissions regarding the costs of defending the counterclaim.

The moving parties, Goodeve Manhire Inc. and Goodeve Manhire Partners Inc., brought a motion to compel the responding party, Tega Homes Developments Inc., to answer questions refused on an examination for discovery.

The examination was permitted following the late delivery of an expert report by Tega.

The court dismissed the motion, finding that questions relating to a withdrawn expert report, previously canvassed issues, and the expert's retainer letter were properly refused.

The court also held that the foundational information for the new expert report was adequately disclosed within the report itself.

Costs were awarded to Tega on a partial indemnity basis.

The plaintiff vendor sued the defendant purchasers for breach of contract after the defendants failed to close a real estate transaction.

The defendants argued there was an implied term that their obligation to close was conditional on the sale of their own home, which had fallen through.

The court rejected this argument, finding no such implied term in the unambiguous agreement.

The court also dismissed the defendants' argument that the plaintiff failed to mitigate her damages.

The plaintiff was awarded damages of $110,588.66, assessed as of the date she successfully sold the property to a third party, representing the difference in purchase price and carrying costs.

Following a successful urgent motion to compel the sale of commercial real estate, the court determined the costs payable by the unsuccessful co-owner who opposed the sale.

The court considered the factors under Rule 57.01(1) and the principle of proportionality.

Costs were awarded to the moving parties in the amount of $6,000 and to the supporting respondent in the amount of $3,350, payable by the opposing respondent.

The moving parties, former solicitors for the plaintiff, sought leave to intervene in three medical negligence actions.

The plaintiff had commenced a solicitor's negligence action against them for allegedly missing a limitation period.

The moving parties argued they had an interest in the medical actions because the outcome would affect their liability.

The court refused leave to intervene in the main medical actions, finding the solicitors had no involvement in the medical care and their participation could prejudice the existing parties.

However, the court granted them leave to intervene in the pending motion for judgment regarding the limitation issues.

The defendants moved for summary judgment to dismiss the plaintiff's action for equitable set-off.

The plaintiff sought to set off a $69,000 costs award it owed to the defendants from a previous unsuccessful action against a $416,000 judgment debt owed by one of the defendants to the plaintiff.

The court dismissed the motion, finding that genuine issues requiring a trial existed regarding whether the costs were actually owed to the defendant spouse and whether the claims were so closely connected that it would be manifestly unjust not to allow the set-off.

The plaintiff mortgagee brought a motion for summary judgment against the mortgagor and guarantors for the deficiency balance remaining after the property was sold under power of sale.

One guarantor opposed the motion, alleging the sale was improvident and that the plaintiff or his agent frustrated other potential sales.

The court found no genuine issue requiring a trial, concluding the plaintiff took reasonable precautions to obtain market value and there was no evidence of interference with other offers.

Summary judgment was granted for the deficiency balance of $4,090,074.26 plus interest and substantial indemnity costs.

This was a correction endorsement relating to a prior costs decision following trial.

The court identified an error in the numerical figure used in discussing a defence settlement offer and corrected the amount from $31,400 to $93,900.

The court held that the corrected figure would have been sufficient to engage the presumptive costs consequences under Rule 49.10(2), but the treatment of settlement offers remained a neutral consideration in the circumstances.

The original costs disposition was left unchanged.

Appeal from an arbitral award under s. 45(1) of the Arbitration Act, 1991 concerning a joint venture relating to mining concessions in Peru.

The arbitrator held that the appellants breached a contractual right of first offer and a trust relationship by granting a cesión minera (assignment of concession rights) to a third party without offering the opportunity to the respondents.

The court upheld the arbitrator’s finding that entering into the cesión minera triggered the right of first offer and constituted a breach of the contractual trust arrangement.

However, the court found the arbitrator erred in law by concluding that the parties’ relationship constituted a partnership giving rise to broader fiduciary duties and by crafting a remedy tied to the broader share purchase agreement rather than the cesión minera itself.

The appeal was therefore allowed in part and the matter remitted to the arbitrator to determine appropriate terms for offering the cesión minera to the respondents.

The plaintiff brought a motion for leave to amend a defamation action after the trial record had been filed, seeking to expand the claim to include intentional infliction of mental suffering, conspiracy to injure, malicious prosecution, and damages under s. 61 of the Family Law Act.

The proposed amendments relied in part on an alleged assignment of rights from the plaintiff’s son arising from criminal proceedings that had resulted in his acquittal.

The court held that the evidentiary foundation for the alleged assignment was deficient and, in any event, causes of action based on personal torts such as malicious prosecution and conspiracy were not assignable.

The court further held that the conspiracy and Family Law Act claims were legally untenable as pleaded.

Leave to amend was granted only to add a claim for intentional infliction of mental and emotional distress related to the alleged defamation.

Following dismissal of the plaintiff’s claim after trial under the Simplified Procedure Rules, the successful defendant sought costs on a partial indemnity basis.

The plaintiff acknowledged entitlement to costs but argued for a reduced amount.

Applying the factors under Rule 57.01 of the Rules of Civil Procedure and relevant cost principles, the court determined that a reduced all-inclusive costs award was fair and reasonable.

The court also granted additional costs against a defendant by counterclaim who had been noted in default in connection with the counterclaim judgment.