Sean D. McGarry

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 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.

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 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 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 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, Intact Insurance, moved for summary judgment, arguing that the plaintiff's (Nasr Hospitality Services Inc.) claim for property loss was statute-barred under the Limitations Act, 2002.

The plaintiff's premises were flooded on January 31, 2013, and Intact formally denied the claim on July 22, 2013.

The action was commenced on April 22, 2015.

The court dismissed the motion, finding that the limitation period did not begin to run until July 2013, when Intact clearly repudiated its obligation, making the plaintiff's action timely.

The plaintiff, EcoConcepts Management Services Inc., and the third parties (former board members) each moved for summary judgment against Peel Condominium Corporation No. 260.

The dispute arose from the termination of EcoConcepts' management contract, which included a highly contentious termination clause requiring payment for the remainder of a five-year term.

Allegations of fabricated documents, improper board authorization, and bad faith were central to the defendant's counterclaim and third-party claim for contribution and indemnity.

The court dismissed both motions for summary judgment, concluding that genuine issues of material fact, particularly concerning credibility and the circumstances surrounding the 2013 Agreement's authorization, required a full trial for a fair and just determination.

In a proposed class action brought by a former RCMP officer alleging systemic sexual harassment and discrimination against female RCMP members, the defendant Crown moved under Rule 21 to strike the statement of claim for disclosing no reasonable cause of action.

The Crown argued that systemic negligence claims against the RCMP amounted to impermissible direct liability contrary to the Crown Liability and Proceedings Act, that no contractual employment relationship existed, and that the claim was statute‑barred.

The court held that the breach of contract claim was untenable because the employment relationship of RCMP members is statutory rather than contractual and struck that portion of the claim.

However, the court found it was not plain and obvious that the systemic negligence claim failed, holding that the pleadings could support vicarious liability of the Crown for collective misconduct of Crown servants.

The limitation issue could not be resolved on a pleadings motion.