Civil Litigation - Plaintiff - SCJ

This endorsement addresses two production issues in a proposed class action for misrepresentation under the Securities Act and the Class Proceedings Act.

The plaintiff sought production of (1) a podcast audio or transcript quoted by defendant Michael Novogratz in his affidavit, and (2) documents underlying a chart referenced by defendant Alex Ioffe.

The court ordered production of the portion of the podcast transcript quoted in the affidavit, but declined to order production of the underlying documents for the chart, finding such requests more appropriate for cross-examination.

The court also set out a timetable for the upcoming motions and clarified the process for resolving refusals.

The defendants brought a motion to vary an interlocutory injunction previously issued, seeking to reverse the ruling based on what they argued was new evidence—an alternative legal interpretation of a trust document regarding beneficiaries.

The court applied the test for admitting new evidence to vary a judgment, which requires that the evidence could not have been discovered sooner with reasonable diligence and might have altered the judgment.

The court found that an overlooked legal argument, even if conceded by previous counsel, does not constitute 'new evidence' under this test.

The motion to vary was dismissed.

The plaintiffs' cross-motion for further financial documentation and tracing of funds was also dismissed, as the existing certificates of pending litigation provided sufficient pre-judgment security and other matters were for estate administration.

The plaintiff in two proposed class actions alleging a price-fixing conspiracy in the canned tuna industry brought a motion for approval of a third-party litigation funding agreement.

The plaintiff could not bear the financial burden of funding the required expert evidence.

After extensive negotiations and due diligence, the plaintiff entered into an agreement with Lake Whillans Fund.

The court applied the four-factor test for approving third-party funding agreements and found the agreement to be necessary for access to justice, fair, reasonable, and protective of the defendants' interests.

The motion to approve the funding agreement was granted.

Following the dismissal of the defendants' motions for summary judgment, the successful plaintiff sought costs of $11,000.

The Condominium defendants argued that costs should not be awarded due to pleading deficiencies or should be in the cause.

The court found that this case fell within the exceptional class of cases where costs in the cause is warranted, as the merits were yet to be adjudicated and the motion materials would be useful at trial.

Costs were ordered in the cause.

The plaintiff in a proposed class action moved for leave to amend the Statement of Claim to add the corporate directors of the defendant companies as new defendants.

The amendment was sought due to concerns about the existing defendants' ability to pay outstanding wages, particularly in light of the global travel industry's collapse due to the COVID-19 pandemic.

The court found no prejudice to any party, as the defendants did not object and the action was still at an early stage.

Leave to amend was granted, with no costs awarded.

The plaintiff brought a motion for answers to undertakings and refusals in the context of a construction lien action.

The motion was dismissed, and the parties submitted written arguments regarding costs.

The defendant, having been entirely successful, sought costs of $5,674.94 on a partial indemnity basis.

The court reviewed the factors under section 131 of the Courts of Justice Act and Rule 57.01, reduced the defendant's attendance fee, and fixed costs payable by the plaintiff to the defendant at $5,074.94.

The plaintiff sought a reconsideration of a costs decision awarding the defendant City partial indemnity costs of $10,517.19 for an abandoned motion.

The plaintiff argued it was unclear whether a response to the City's costs submissions was required.

The court dismissed the reconsideration request, noting the plaintiff failed to respond to the duly served submissions or challenge the presumptive entitlement to costs under Rule 37.09(3), and confirmed the previous costs award.

In a wrongful death action arising from a motorcycle accident, the defendants brought a motion under Rule 31.10 for production of the complete Children's Aid Society file regarding the plaintiffs.

The defendants sought the records to assess the quality of the relationship between the plaintiffs and the deceased.

The court dismissed the motion, finding that the defendants had not exhausted their right to obtain the information through examinations for discovery of the plaintiffs, rendering the request a speculative fishing expedition.

The plaintiffs brought a motion to amend their Statement of Claim to replace 'John Doe Retailer' and 'John Doe Installer' with the names of the specific defendants who sold and installed a furnace that allegedly caused a fire.

The proposed defendants opposed the motion, arguing the limitation period had expired and they had no notice of the claim.

The court granted the motion, finding that the 'litigation finger' clearly pointed at the proposed defendants and that actual notice or due diligence is not required to correct a misnomer under the Rules of Civil Procedure and the Limitations Act, 2002.

Following a judgment granting the applicants relief from forfeiture and specific performance for a condominium unit, the applicants sought full indemnity costs of $73,535.05 based on the respondents' alleged grave misconduct.

The respondents argued for partial indemnity costs in the range of $25,000 to $35,000.

The court found that while the respondents engaged in misconduct, it did not warrant an elevated costs award.

The court awarded the applicants partial indemnity costs fixed at $45,000 inclusive of disbursements and HST.

The plaintiffs in a certified class action regarding transvaginal mesh devices brought a motion to approve the Notice of a Settlement Approval Hearing, the Notice Plan, and minor amendments to the 2017 Certification Order.

The parties had entered into a $21.5 million settlement.

The defendants consented to the motion.

The court approved the expansion of the class definition to include individuals implanted with the devices up to the date of the order, finding it fair and necessary.

The court also approved the proposed notices and notice plan, finding they met the statutory criteria under the Class Proceedings Act, 1992.

The self-represented plaintiff brought a motion for leave to file a statement of claim and for an extension of time to serve the notice of action and statement of claim on the defendant, his mother.

The notice of action was issued in 2014 but never served, and the underlying claims dated back to 1980.

The court dismissed the motion, finding that the plaintiff failed to provide independent evidence justifying the delay, the defendant reasonably inferred the claim was abandoned, and the defendant would suffer prejudice due to the passage of time, her declining health, and the death of a key witness.

The self-represented appellant appealed a Consent and Capacity Board decision confirming her incapacity to consent to treatment with antipsychotic medication.

The respondent requested the appointment of amicus curiae because the appellant had not taken steps to perfect the appeal.

The court directed Legal Aid Ontario to investigate the appellant's legal aid status and ordered the appointment of amicus curiae if a certificate could not be issued expeditiously.

The defendants were successful on a motion for summary judgment dismissing the plaintiff's action and sought costs on a partial indemnity scale.

The plaintiff opposed the quantum, arguing the evidentiary record on the motion was incomplete and the costs claimed were excessive.

The court rejected the plaintiff's arguments regarding the evidentiary record, noting the plaintiff was represented by counsel and chose not to file responding evidence.

The court found the defendants' claimed costs of $44,644.28 to be reasonable, proportionate, and within the range the plaintiff would reasonably expect to pay.

Costs were fixed in that amount.

The tenant, a law firm, vacated its commercial premises and sought to sublet to a private school.

The landlord refused consent because the lease expressly prohibited use as a school.

The tenant stopped paying rent and brought an application declaring the refusal unreasonable, while the landlord moved for summary judgment for rental arrears.

The court found the landlord's refusal reasonable and granted summary judgment for the arrears, noting the landlord had no duty to mitigate since it had not terminated the lease.

The applicants brought a motion to strike portions of the respondents' affidavits filed in a pending application regarding a right of way dispute and defamation claims.

The applicants argued the impugned paragraphs contained irrelevant, prejudicial, and hearsay evidence.

The court dismissed the motion, finding that the evidence was either withdrawn from objection by the applicants or was admissible as it went to the respondents' state of mind, responded directly to issues raised by the applicants, or provided relevant narrative history rather than being offered for the truth of its contents.

In contempt proceedings arising from a failure to comply with a prior court order requiring production of financial and accounting records, the court addressed a request for an adjournment of a sentencing hearing for contempt.

The corporate director of the respondent had failed to appear at a previous hearing, resulting in the issuance of a bench warrant.

After appearing with newly retained counsel, the director sought additional time to assemble the required financial documentation and to address missing records.

Although the court expressed concern about repeated adjournments and minimal compliance with prior orders, it concluded that granting a short adjournment would better facilitate production of the required documents and potential purging of the contempt.

The bench warrant was rescinded, the matter adjourned on a peremptory basis, and substantial indemnity costs were awarded to the applicants.

The defendants brought a motion to set aside a default judgment and permit the filing of a Statement of Defence.

The court applied the three-part test for setting aside default judgment—promptness, a plausible explanation for the default, and the existence of an arguable defence.

The defendants attributed their failure to file a defence to misconduct and negligence by their former solicitor, including failing to file the drafted defence and misleading the defendants regarding its status.

The court held that the motion was brought promptly by new counsel and that the defendants had established a plausible explanation and an arguable defence on the merits.

The default judgment was set aside and the noting in default vacated, with costs of the motion ordered personally against the defendants’ former solicitor under Rule 57.07(1)(c).

Following earlier reasons in which the respondents were awarded costs on a partial indemnity basis, the court determined the quantum of costs payable by the applicant.

Separate bills of costs were submitted by counsel for two respondents, each including disbursements and HST.

Although one respondent’s counsel worked with junior lawyers and produced a slightly higher bill, the court found the respondents had shared responsibility for responding to the application approximately equally.

Using one bill as a baseline, the court awarded identical costs to both respondents.

Following a successful application to add two institutions to Schedule “F” of the Indian Residential Schools Settlement Agreement, the moving parties sought legal costs on a full or substantial indemnity basis.

The court interpreted Article 12.01(6) of the Settlement Agreement, which allows Canada to provide requestors with “reasonable legal costs and disbursements.” The court held that this standard is distinct from traditional indemnity scales used in civil procedure and requires reimbursement only for costs reasonably necessary to the application.

After reviewing the accounts, the court excluded certain expenses and reduced amounts where senior counsel performed work that could reasonably have been completed by junior counsel.

The court fixed reasonable legal costs and disbursements accordingly.