Civil Litigation - Plaintiff - SCJ

The applicant landlord sought a declaration that a commercial tenant was required to pay its proportionate share of the cost of rehabilitating a shopping centre parking lot as additional rent under a lease provision requiring tenants to pay common area maintenance costs for repairs and maintenance.

The dispute turned on whether the parking lot rehabilitation constituted a repair or a capital expenditure under “accepted accounting practice.” After considering expert engineering and accounting evidence and principles drawn from GAAP and relevant case law, the court concluded that the work significantly extended the life of the parking lot and reduced operating costs, thereby enhancing its service potential.

The court held that the rehabilitation constituted a capital expenditure rather than a repair within the meaning of the lease.

Accordingly, the tenant was not responsible for the cost and was entitled to set-off amounts already paid.

Following a motion seeking to compel examinations under Rule 39.03 in aid of a contempt proceeding, the court addressed the issue of costs.

The moving parties had attempted to compel the examination of opposing counsel and several non-parties regarding a mortgage transaction allegedly breaching a prior court order.

The court found that the evidentiary steps taken were excessive, disproportionate, and primarily aimed at forcing the opposing lawyer to give evidence against his client and potentially disqualify himself.

Although the moving parties were entitled to limited costs for compelling a timetable for an affidavit, the motion to compel examination of counsel was dismissed and the responding party substantially succeeded.

Substantial indemnity costs were awarded to the responding party due to the unreasonable litigation strategy adopted by the moving parties.

The plaintiff brought a motion for default judgment after the defendant adventure park operator failed to defend a personal injury action arising from a zipline accident.

The court accepted the plaintiff’s allegations as proven and determined that Ontario had jurisdiction because the contract was formed in Ontario and the defendant’s business targeted Ontario residents through its internet advertising and operations.

The court found the defendant breached contractual representations regarding supervision, training, and safety equipment, and further held that the defendant’s conduct constituted negligence and gross negligence.

Liability waivers presented after the contract formation and not provided in the plaintiff’s language were held ineffective.

Default judgment was granted with damages for income loss and general damages for serious ankle injuries.

Following dismissal of jurisdiction motions brought by several foreign tobacco companies in a health care cost recovery action, the court determined costs.

The unsuccessful moving parties argued that earlier evidentiary and procedural steps constituted separate proceedings and sought substantial costs for those steps.

The court rejected that characterization, holding that all preliminary steps formed part of the overall jurisdiction challenge and that distributive costs awards based on success on individual steps should be avoided.

Applying Rule 57.01 factors and general costs principles, the court found the responding party was the successful party and entitled to costs, subject to reductions reflecting partial success on certain evidentiary and motion issues.

The court awarded partial indemnity costs of $425,000 plus disbursements, allocating liability between two groups of moving defendants.

Following the granting of summary judgment dismissing the plaintiff’s claims against two defendants in a medical negligence action, the court determined the issue of costs.

The successful defendants sought costs after the self‑represented plaintiff failed to deliver responding submissions within the allotted time.

Although the defendants had incurred significantly higher legal costs, each requested a reduced amount.

The court found the proposed amounts reasonable and fixed costs at $7,500 for each successful defendant.

Commercial tenants applied for relief after their landlord terminated a lease by changing the locks and refusing access to goods left in the premises unless alleged rent arrears were paid.

The court held that changing the locks effected a forfeiture of the lease and that a landlord cannot simultaneously exercise forfeiture and distress.

Retaining the tenants’ goods as leverage for rent constituted excessive and illegal distress under the Commercial Tenancies Act.

The court found the tenants had not abandoned the property and that the landlord’s conduct was wrongful and potentially oppressive.

Liability was established and a trial of the issue was ordered to determine general, special, and punitive damages, including possible lost profits.

In a proposed consumer class proceeding, the defendant sought directions permitting a summary judgment motion to be heard before the certification motion and sought leave to file a sur‑reply pleading.

The court considered the case management discretion under s. 12 of the Class Proceedings Act, 1992 and the general principle that certification should normally be the first substantive motion.

The proposed summary judgment motion would not dispose of the entire proceeding and would likely delay certification and increase costs.

The court held that efficiency favored addressing certification first and declined to schedule the summary judgment motion or the proposed sur‑reply motion before certification.

The parties were directed to agree on a timetable leading to certification.

The plaintiffs brought an action against their former lawyer alleging professional negligence in the handling of franchise litigation.

The lawyer failed to issue a notice of rescission under the Arthur Wishart Act (Franchise Disclosure), 2000 within the statutory time limits and failed to properly advance claims against the franchisor.

The original action was dismissed for delay and the statutory rescission rights expired.

The court held that the lawyer breached the standard of care and deprived the plaintiffs of their statutory rights and recoverable losses under the Act.

Judgment was granted for damages reflecting the amount that would have been recoverable through timely rescission.

The court considered a motion to dismiss an appeal arising from an arbitrator’s decision in a legal malpractice action.

The appellant, a self‑represented litigant, had repeatedly failed over several years to comply with procedural requirements and court‑ordered timelines, including a peremptory order requiring the filing of an appeal record.

Despite multiple adjournments and clear directions from the court, the appellant did not file a compliant appeal record and instead served an incomplete affidavit referencing missing exhibits.

Applying Rule 60.12 of the Rules of Civil Procedure, the court held that continued delay and non‑compliance justified dismissal.

The appeal was dismissed for failure to comply with the interlocutory order and prolonged delay.

A defendant brought a motion under Rule 21.01(3)(d) of the Rules of Civil Procedure seeking dismissal of a claim as frivolous, vexatious, or an abuse of process arising from allegations of a fraudulent conveyance.

The motion was brought nearly seven years after the defendant was added to the action and after other parties had settled.

The court held that such relief should only be granted in the clearest of cases and that a Rule 21 motion is not a substitute for summary judgment.

Given the existence of significant factual and legal disputes regarding the alleged fraudulent transfer and consideration for the property, the court found the claim was not plainly without merit.

The motion was dismissed.

Following a motion in which the defendants successfully sought to strike an affidavit sworn by a lawyer from the plaintiffs’ law firm, the court addressed the quantum of costs payable.

Although the defendants succeeded on grounds different from their primary argument, the court found they were nevertheless the successful party.

The court assessed reasonable preparation and attendance time for counsel and limited clerk time on a partial indemnity scale.

Costs were calculated using hourly rates for counsel and clerk time and applicable tax.

The applicants sought costs following earlier proceedings concerning the respondent declarant’s repeated failure to comply with obligations under the Condominium Act, 1998 and with prior court orders requiring disclosure of information to the condominium corporation.

The respondent failed to file responding submissions despite being granted time to do so.

The court reviewed the applicants’ bill of costs and found the requested amount reasonable under Rule 57.01 of the Rules of Civil Procedure.

The court also considered whether additional monetary relief was available under the Condominium Act, 1998.

Costs were awarded to the applicants along with an additional statutory amount due to the declarant’s failure, without reasonable excuse, to comply with statutory disclosure obligations.

The moving defendant sought to set aside a previously granted Mareva injunction obtained without notice, alleging inadequate evidence, hearsay, and failure by the plaintiffs to make full and frank disclosure.

The court examined alleged deficiencies including the presentation of SMS message data, inaccuracies in affidavit evidence, and hearsay regarding customer orders.

While the court acknowledged certain imperfections and minor inaccuracies in the evidence, it concluded that the original motion judge had sufficient admissible evidence to justify the injunction.

The court held that minor imperfections or omissions in ex parte proceedings do not automatically invalidate relief where the overall evidentiary foundation remains adequate.

The Mareva order was therefore maintained, subject to a minor agreed amendment.

The court addressed three related proceedings involving family law claims and corporate oppression claims concerning ownership and profits of several closely held companies.

The issues included whether a former spouse retained a share interest in corporate entities following separation agreements and whether other parties were entitled to equity interests or damages relating to the same companies.

The court determined that the proceedings involved overlapping factual issues concerning share ownership, corporate value, and entitlement to profits.

To avoid inconsistent findings, duplication of evidence, and unnecessary costs, the court ordered that the three proceedings be tried together as a single consolidated trial under Rule 6.01 of the Rules of Civil Procedure.

Procedural directions were issued governing pleadings, motions, and scheduling of the unified trial.

The plaintiff in a wrongful dismissal action brought a motion to amend his statement of claim nearly five years after commencing the action.

The proposed amendments sought to add a claim for damages relating to the value of the plaintiff’s investment advisor “book of business” and alleged entitlement to working notice to transition clients.

The court held that the proposed amendments were not tenable at law because they effectively sought double recovery for lost income and relied on a non‑existent entitlement to working notice.

In addition, the amendments constituted a new cause of action based on new material facts and were therefore statute‑barred under the Limitations Act, 2002.

The court granted leave only for certain unopposed amendments and permitted limited further discovery.

Following a wrongful dismissal action in which the plaintiff recovered $12,514, the plaintiff sought costs exceeding $21,000.

The amount awarded fell well within the monetary jurisdiction of the Small Claims Court.

The court considered Rule 57.05(1) of the Rules of Civil Procedure, which permits a denial of costs where a plaintiff recovers an amount within the Small Claims Court jurisdiction.

The court held that the policy underlying the rule applied even though the action was commenced before the jurisdictional limit increased.

As the claim clearly could have been pursued in Small Claims Court and no exceptional circumstances justified Superior Court proceedings, the court declined to award costs.

The plaintiff brought a motion for judgment enforcing an accepted settlement under Rule 48.09 of the Rules of Civil Procedure in relation to a wrongful dismissal action and a related disability benefits claim.

The motion sought identical relief to a companion motion in a related court file.

The court dismissed the motion for the same reasons provided in the companion decision released the same day.

As costs had already been awarded in the companion matter, no additional costs were ordered for this motion.

The plaintiff brought a motion seeking judgment in the terms of an accepted settlement under Rule 48.09 of the Rules of Civil Procedure in relation to wrongful dismissal and disability benefits actions.

By the time of the hearing, the settlement funds had been paid and the only remaining issue was costs of the motion.

The court reviewed the settlement timeline and found that payment was made within a reasonable period after the plaintiff’s counsel satisfied conditions required under the minutes of settlement.

The court held the motion to enforce settlement was premature and unnecessary, particularly given the absence of any payment deadline and the defendant’s ongoing communications.

Costs were awarded to the defendant for having to respond to the motion.

During an urgent conference, the respondent sought an adjournment of an upcoming motion and argued that the application should be converted into an action requiring pleadings and discoveries.

The court declined to adjourn the motion, noting the respondent had previously agreed to the motion date and had failed to comply with earlier court-ordered timelines or deliver responding materials.

The court held that any request to convert the proceeding into an action could be brought by way of a motion for directions but should not delay the scheduled motion hearing.

The court also confirmed that the applicants were entitled to examine a non-party under oath in relation to the pending motion.

Purchasers of rural property alleged that the vendor misrepresented the location of the boundary and sought a declaration that they owned an additional 2.3 acres, a vesting order, and damages for trespass and conversion.

The defendant vendor moved for summary judgment, arguing that the parcel conveyed was the exact property described in the registered plan and protected by the Land Titles Act.

The court held that, because the property was registered under the land titles system and no fraud was pleaded, the purchasers could not obtain rectification of title or a vesting order inconsistent with the registered parcel.

Summary judgment was granted dismissing the claims for declaratory relief and a vesting order.

Claims for damages relating to trespass and removal of soil raised triable issues and were permitted to proceed to trial.