S. Dewart

The plaintiffs brought a motion to remove the defendants' counsel and their law firm from the record for an upcoming pending motion.

The plaintiffs argued that because partners of the law firm had sworn affidavits for the pending motion, the firm's continued representation created a conflict of interest and an appearance of impropriety.

The court dismissed the motion, finding it premature and noting that the practice of lawyers appearing on motions where their colleagues have filed affidavits is common and acceptable in Ontario civil litigation.

The court awarded costs of $11,580 to the defendants.

The defendants brought a motion to dismiss or permanently stay the plaintiff's construction lien action, arguing that the plaintiff failed to immediately disclose a settlement and assignment agreement with the original lien claimant, contrary to the rule in Handley Estate.

The court found that the settlement and assignment did not fundamentally alter the adversarial orientation of the litigation, as the assignee and the defendants were already adverse in interest and the original claimant's role in providing evidence did not constitute a reversal of its pleaded position.

The motion was dismissed.

The plaintiffs brought a motion to compel answers to outstanding undertakings and refusals from a judgment debtor examination, and to extend the time for service of a 2017 statement of claim alleging improper transfers intended to defeat collection of a 2011 judgment.

The defendants brought a cross-motion to strike the 2017 statement of claim for lack of particularity.

The court granted the plaintiffs' motion, finding the defendants' efforts to fulfill undertakings were insufficient and their claims of prejudice regarding the delay in service were weak and speculative.

The defendants' motion to strike was dismissed as premature.

The moving defendants (the Vuletics) sought a stay of the action, alleging an abuse of process because the plaintiffs (the Carotis) failed to immediately disclose a settlement agreement reached with a co-defendant (Kegalj).

The court dismissed the motion, finding that the settlement agreement did not entirely change the adversarial landscape.

The settling co-defendant was already adverse in interest to the moving defendants prior to the settlement, and the agreement merely required him to act as a truthful witness, which did not fundamentally alter the litigation's adversarial orientation.

The court-appointed receiver sought approval of an agreement of purchase and sale for two multi-residential properties.

The mortgagor objected to the sale price, and the first mortgagee objected to the sale unless its yield maintenance penalty of $1.7 million was paid from the proceeds.

Applying the Soundair principles, the court approved the sale, finding the receiver's process fair and the price reasonable.

However, the court ordered the $1.7 million held in trust pending a trial of an issue to determine the first mortgagee's entitlement to the yield maintenance penalty.

The defendant Wilford brought a motion for security for costs against the corporate plaintiff under Rule 56.01(1)(d) of the Rules of Civil Procedure.

The corporate plaintiff argued it was impecunious and that the action was primarily driven by its principal, who was also a plaintiff.

The Master found that the corporate plaintiff had insufficient assets in Ontario and that its claims were weak.

Applying a holistic analysis, the Master concluded it was just to order security for costs to protect the defendant, fixing the amount at $12,500 up to the end of discoveries.