Sean D. McGarry

The moving party brought a motion for leave to appeal the decision of the lower court judge.

The Divisional Court granted the motion for leave to appeal, with costs reserved to the panel hearing the appeal.

The defendant sought leave to issue a third-party claim against Brenda Petty and Brenda Petty Unlimited LLC, arguing that the plaintiffs' expert report shifted the focus to Petty's negligence and the defendant's vicarious liability.

The plaintiffs opposed, citing prejudice due to delay and ongoing interest payments on a line of credit.

The court, applying principles from Farrell v Costco Wholesale and Fisher v Amherstburg, found no undue prejudice to the plaintiffs, as delay and expense alone do not constitute prejudice, especially when the action has not been set down for trial.

The court emphasized the desirability of avoiding multiplicity of proceedings and the risk of conflicting decisions, concluding that all related issues should be tried together.

The motion for leave to issue a third-party claim was granted.

The plaintiff sought costs after successfully resisting an anti-SLAPP motion brought by two defendants and partially succeeding on a motion to strike pleadings.

The court, interpreting section 137.1(8) of the Courts of Justice Act, ruled that a responding party who successfully resists an anti-SLAPP motion is generally not entitled to costs unless exceptional circumstances warrant it.

Despite the plaintiff incurring significant legal expenses and the judge's view that the motion was "on the wrong side of the boundary" of abusive use, the court found no basis to deviate from the statutory rule, compelling it to deny costs.

However, a separate settlement for $4,000 was reached with another defendant (CUHMA) for their appearance.

The plaintiff brought a motion to approve a class action settlement and class counsel fees regarding allegedly defective dive computers manufactured by the defendant.

The settlement included an inspection and repair program, a reimbursement fund, and educational certificates.

The court found the settlement to be fair, reasonable, and in the best interests of the class.

The court also approved class counsel fees of US $400,000 and a $5,000 honorarium for the representative plaintiff.

The plaintiff brought a motion to certify a proposed class proceeding for settlement purposes regarding allegedly defective dive computers manufactured by the defendant.

The court found that the statutory criteria for certification were met and that a class proceeding was the most appropriate way to provide remedies to purchasers.

The court certified the action for settlement purposes, approved the proposed plan of advertising and notification, and scheduled a date for the settlement approval hearing.

The appellant, a project owner/developer, appealed a summary judgment dismissing its crossclaim against engineering consultants/subcontractors (respondents).

The crossclaim sought contribution and indemnity for damages paid to adjacent property owners, arguing the respondents were not covered under the appellant's wrap-up liability policy for professional services claims, despite a waiver of subrogation clause.

The Court of Appeal upheld the motion judge's decision, finding the respondents were "additional insureds" and the waiver of subrogation applied.

The court affirmed that the policy, a standard form contract, was unambiguous and that the appellant's crossclaim was indeed a subrogated claim, regardless of the timing of payments.

Following a summary judgment with divided success, the parties sought a determination on interest and costs.

The court held that Marquest was entitled to the contractual interest rate of 15 percent on the promissory note, running until the date funds were received.

Regarding costs, the court balanced Marquest's contractual right to substantial indemnity costs for enforcing the note against Stone's substantial success on its more complex counterclaim.

The court awarded Stone $30,000 in partial indemnity costs, net of any costs Marquest was entitled to.

Following the dismissal of the plaintiffs' motion to reinstate their action and the granting of the defendants' motions for summary judgment and a vexatious litigant declaration, the court determined the costs payable to the defendants.

The plaintiffs failed to provide responding costs submissions and had a history of ignoring adverse costs awards.

The court awarded the defendants their requested costs on a partial indemnity basis, totaling $85,832.43.

Marquest Asset Management Inc. sued Stone Investment Group Ltd. for unpaid amounts under a promissory note.

Stone counterclaimed for breach of a purchase agreement, seeking set-off.

Marquest moved for summary judgment on its claim and dismissal of Stone's counterclaim.

Stone opposed and sought summary judgment on its counterclaim.

The court granted Stone summary judgment on two issues of its counterclaim (Cooltech Debenture and nominal damages for TFSA filings) and dismissed a third (Withholding Taxes).

The court found Marquest breached the purchase agreement regarding the Cooltech Debenture and TFSA filings.

As the amount awarded to Stone on its counterclaim was less than the amount owed to Marquest on the note, the court granted Marquest summary judgment for the net amount.

The court also found Stone had a proper claim for equitable set-off.

The plaintiffs brought a motion under Rule 59.06(2) to set aside previous dismissal orders on the basis of fraud.

The defendant municipality brought a motion for summary judgment, and the defendants collectively applied to have the plaintiffs declared vexatious litigants under s. 140 of the Courts of Justice Act.

The court dismissed the plaintiffs' motion, finding no evidence of fraud.

The court granted the municipality's summary judgment motion, finding the claims barred by issue estoppel.

Finally, the court declared the plaintiffs vexatious litigants, noting their 15-year history of abusive litigation, frivolous appeals, and failure to pay over $218,000 in costs awards.

The parties attended a case conference to schedule several proceedings, including the plaintiffs' Rule 59.06 motions to set aside previous orders, the defendants' summary judgment motion, and an application to declare the plaintiffs vexatious litigants.

The self-represented plaintiff argued that a proposed constitutional challenge regarding the conduct of opposing counsel and the judiciary should be heard first.

The court rejected this argument, noting the constitutional challenge had not yet been commenced and the other proceedings had been outstanding for years.

The court scheduled the outstanding motions for a combined hearing.

The defendants, engineering consultants, brought a motion for summary judgment to dismiss a crossclaim by the co-defendant developer.

The crossclaim was a subrogated claim advanced by the developer's insurer.

The moving parties argued they were additional insureds under the developer's wrap-up liability policy and thus protected by a waiver of subrogation clause.

The developer argued the waiver should not apply because the moving parties' professional services were excluded from coverage under the policy.

The court held that the moving parties were additional insureds and the clear language of the policy's waiver of subrogation clause applied, regardless of the professional services exclusion.

The motion for summary judgment was granted and the crossclaim was dismissed.

The applicant, Lo-Ming Lum, brought two motions before the Court of Appeal for Ontario.

These motions arose from an earlier action she initiated, which was dismissed as frivolous and vexatious by the Superior Court, with an order barring her from further proceedings without leave.

The motions sought to set aside an order by a single Divisional Court judge and to obtain leave to appeal another interlocutory order.

The Court of Appeal dismissed both motions, affirming that appeals from a single Divisional Court judge lie to a panel of the Divisional Court, not the Court of Appeal.

The court also issued an order under Rule 2.1 of the Rules of Civil Procedure, requiring the applicant to obtain leave from a single judge of the Court of Appeal before taking any further steps or proceedings related to this action in that court, citing her disregard for prior orders and procedural misuse.

The defendants appealed a master's order granting the plaintiffs leave to amend their statement of claim to add the plaintiff's wife as a party and assert Family Law Act claims.

The defendants argued the claims were statute-barred and that the claim for medical injuries from mold exposure was not actionable.

The Superior Court dismissed the appeal, finding that there was a reasonable explanation on proper evidence to raise an issue of fact regarding delayed discoverability, and that the novel tort claim under the Family Law Act had a reasonable prospect of success and should proceed to trial.

The plaintiff, Fabio Scalabrini, brought a motion to add his spouse, Cinzia Scalabrini, as a plaintiff to an existing motor vehicle accident action, seeking damages under the Family Law Act.

The motion was based on the discoverability principle, arguing that Cinzia's injuries and related losses, particularly those stemming from a mold issue in their home attributed to Fabio's accident-related incapacitation, only became apparent in late 2018.

The court considered Rules 5.04 and 26.01 of the Rules of Civil Procedure and the Limitations Act, 2002, finding that the statutory presumption of discoverability was rebutted.

The court granted leave to add Cinzia as a plaintiff, concluding there was a reasonable possibility she could not have known the full extent of her derivative injuries and losses earlier, and awarded costs to the moving party.

The plaintiff, Chantale Abbott-Keith, appealed a Certificate of Assessment of Costs issued by an Assessment Officer, which significantly reduced her claimed party-and-party costs from two settled motor vehicle accident actions and awarded costs of the assessment against her.

The appeal raised grounds including the Assessment Officer's failure to conduct a line-by-line analysis, breach of natural justice and procedural fairness by not properly considering the plaintiff's objections under Rule 58.10, and errors in applying proportionality and reducing disbursements.

The court found that the Assessment Officer erred in interpreting Rule 58.10(1) regarding the timing of objections and fundamentally misconstrued her role in the reconsideration process, thereby denying the plaintiff a fair hearing.

The appeal was granted, the Certificate of Assessment of Costs was quashed, and the matter was remitted back to the same Assessment Officer for a proper hearing of objections.

The defendants, Peter Gobrail and Hardscapes Interlock Design, brought a motion to transfer their action from Barrie (Central East Region) to Brampton (Central West Region).

The plaintiff, Basil Mkalaf, opposed the transfer.

The court, applying Rule 13.1.02 of the Rules of Civil Procedure and principles from Chatterson et al. v. M&M Meat Shops Ltd., found that Brampton was a "significantly better" venue.

The decision considered factors such as where the accident occurred, the residence of parties and witnesses, and the convenience of the court, outweighing the plaintiff's concerns about potential trial delays.

The motion to transfer to Brampton was granted on terms related to pre-trial scheduling.

The plaintiff was involved in a single-vehicle accident on Highway 417, allegedly caused by an unpaved bump.

He failed to provide the required 10-day statutory notice to the Ministry of Transportation under s. 33(4) of the Public Transportation and Highway Improvement Act, only serving a claim 30 months later.

The defendant moved for summary judgment.

The court found no genuine issue for trial, concluding the plaintiff lacked a reasonable excuse for the delay, particularly after retaining counsel, and failed to rebut the presumption of prejudice caused by the road being repaved before notice was given.

The action was dismissed.

The appellant, a hotel owner, sought recovery for fire damage to its building caused by a fire in the respondents' leased restaurant space.

The appellant's insurer brought a subrogated action in the appellant's name.

The respondents argued that the lease terms barred the insurer from pursuing the claim.

The motion judge dismissed the action, finding that the landlord's covenant to insure and the tenant's contribution to insurance costs triggered the principles established in the Supreme Court trilogy, preventing subrogation against the tenant.

The Court of Appeal reversed, holding that the lease contained explicit "notwithstanding" language that overcame the trilogy principles and preserved the tenant's liability for its own negligence.

The defendant insurer brought a motion to compel the plaintiff to answer undertakings given during examinations for discovery.

The plaintiff brought a cross-motion seeking production of the police investigation file related to an arson charge against her that was later withdrawn.

The court ordered the defendant to produce the police file and its investigator's file, as they were relevant to the plaintiff's claim for punitive damages.

The court also ordered the plaintiff to answer undertakings regarding the sale price of her home and the name of a doctor who treated her for a brain injury, but found other requested information irrelevant.

Costs of $3,000 were awarded to the plaintiff.