Sean F. Dunphy

Following a successful summary judgment dismissing the plaintiff’s personal injury claim arising from a ski accident, the defendant sought costs of the motion and action.

The plaintiff argued that no costs should be awarded due to his impecuniosity.

The court considered the factors under Rule 57.01 of the Rules of Civil Procedure and s. 131 of the Courts of Justice Act.

While acknowledging the plaintiff’s low income, the court held that impecuniosity alone does not justify avoiding the normal costs consequences, particularly where the plaintiff rejected a settlement offer and attempted to leverage litigation costs during negotiations.

Partial indemnity costs of $63,000 were awarded to the defendant, with half payable immediately and the remainder stayed for 24 months.

Following dismissal of a summary judgment motion brought by certain defendants, the court determined the appropriate costs award.

The plaintiff sought partial indemnity costs for successfully resisting the motion and for related procedural steps including a consent amendment to the statement of claim.

The court applied the discretionary criteria under Rule 57.01 of the Rules of Civil Procedure, emphasizing the significance of the motion to both parties and the reasonableness of the plaintiff’s litigation steps.

While the plaintiff largely succeeded, the court adjusted the claimed amount modestly based on reasonable expectations of the losing parties.

Costs were fixed in favour of the plaintiff against the moving defendants and separately against another defendant for an earlier substituted service motion.

The plaintiffs appealed an order staying their action for failure to pay previous costs awards.

Through this appeal, the self-represented plaintiff sought to set aside a $6,450 costs award made by another judge who had dismissed the plaintiffs' motion for leave to appeal a document production order.

The Divisional Court dismissed the appeal, finding that the previous costs order could not be collaterally attacked through an appeal of the stay order, and that the costs were appropriately awarded to the successful party on the leave motion.

The plaintiffs sought leave to amend their existing action to add a municipality as a defendant years after a fatal motor vehicle accident, arguing that the limitation period under the Trustee Act applied exclusively and could be extended based on special circumstances.

The court held that the Trustee Act limitation period operates in addition to, not in place of, the two‑year limitation period under the Limitations Act, 2002.

Because the limitation period under the Limitations Act had expired, s. 21 barred the plaintiffs from adding the municipality as a party to the proceeding.

In any event, the plaintiffs failed to demonstrate lack of prejudice to the proposed defendant or establish special circumstances justifying relief.

The motion to amend was dismissed with costs.

The defendant brought a motion to set aside a default judgment arising from a claim for unpaid gambling credit advanced by a casino.

The motion relied on an exclusive jurisdiction clause in the underlying credit agreement favouring Singapore courts and on a hearsay assertion that the defendant never received the statement of claim served by substituted service.

The court held that a forum selection clause does not render proceedings void and cannot justify setting aside a judgment absent other grounds, particularly where the defendant delayed and produced no evidence of a defence on the merits.

Applying the factors governing motions to set aside default judgment, the court found no credible explanation for the defendant’s delay, no evidence of non‑service, and no arguable defence.

The interests of justice therefore did not favour granting relief.

The plaintiff commenced an action against her former legal and financial advisors alleging negligence and breach of fiduciary duty in connection with advice provided during negotiation of a marriage contract.

The defendants brought summary judgment motions asserting that the action was statute‑barred under the Limitations Act, 2002 and constituted an abuse of process because the plaintiff had a statutory remedy under s. 56(4) of the Family Law Act to set aside the marriage contract against her spouse.

The court held the plaintiff failed to rebut the presumption of discoverability and knew or ought to have known of the material facts giving rise to her claims more than two years before commencing the action.

The court further held that attempting to obtain, through damages against advisors, relief that should have been pursued through family law proceedings constituted an abuse of process.

The municipality sought an injunction requiring the respondents to obtain a licence as either a taxicab broker or a limousine service company under Chapter 545 of the City of Toronto Municipal Code.

The application alleged that the respondents, through their smartphone platform, accepted requests for transportation services and therefore carried on a regulated business.

The court interpreted the by‑law definitions of “taxicab”, “limousine service company”, and the requirement to “accept calls”, concluding that the automated software platform merely relayed digital requests between passengers and drivers.

Because acceptance occurred only when an individual driver chose to accept a trip request, the respondents themselves did not accept calls or requests within the meaning of the by‑law.

Accordingly, the respondents were not operating as a taxicab broker or limousine service company requiring a municipal licence.

The defendants appealed a Master's decision dismissing their motion to dismiss the plaintiffs' 2001 action for delay.

The court reviewed the Master's discretionary decision on a standard of palpable and overriding error or error in principle.

The court found that the Master properly considered the evidence, including the parties' settlement negotiations and the lack of actual prejudice to the defendants, who acted as an allied group.

The appeal was dismissed, and the plaintiffs were permitted to continue the action.

On motions to strike in a franchise dispute arising from the post-bankruptcy restructuring of an automotive manufacturer, the court dismissed the entire claim against the U.S. parent entities and struck discrete allegations against the Canadian franchisor.

The court held that a franchisor’s associate is not liable under s. 3 of the Arthur Wishart Act unless it is also a party to the relevant franchise agreement, and further found the pleadings did not satisfy the statutory definition of franchisor’s associate.

The court also held that the pleadings did not justify piercing the corporate veil to impose contractual liability on the parent companies.

Allegations concerning misuse of government bailout funds and the defendants’ preference of their own interests were struck as irrelevant, scandalous, and abusive.

Leave to amend was refused.

Competing summary judgment motions arose from a debt restructuring in which the moving parties released a collateral mortgage and personal guarantees in exchange, in part, for two off-plan Dubai condominium units.

The court held that the amended agreement, read together with the incorporated reservation forms and Dubai law evidence, required that the purchase price for the units be paid into escrow.

The responding parties used closing documents that falsely represented the escrow accounts had been funded when no such funds existed, thereby inducing the release of valuable Canadian security.

Applying the summary judgment framework and the test for fraudulent misrepresentation, the court found no genuine issue requiring trial and granted judgment to the moving parties.

The court also ordered substantial indemnity costs, with further submissions on interest and costs quantum.

The defendants moved for summary judgment dismissing a fraudulent conveyance action arising from a transfer of farm property allegedly made to defeat unresolved family law support and proprietary claims, and the plaintiff cross-moved for leave to amend to plead constructive trust and tracing remedies.

The court held that an unresolved support claim under the Family Law Act provided standing as a 'creditor or other' under s. 2 of the Fraudulent Conveyances Act.

It further held that an FCA action seeking to set aside a conveyance of real property is an action to recover land governed by s. 4 of the Real Property Limitations Act, attracting a ten-year limitation period rather than the two-year period under the Limitations Act, 2002.

The action and proposed amendments were therefore not statute-barred.

The defendants' motion was dismissed and the plaintiff's cross-motion was granted.

The applicant sought a declaration that he owned a condominium parking unit omitted from the 1997 conveyance through solicitor inadvertence.

The court found that equitable title transferred on payment of the full purchase price under the written agreement of purchase and sale, and that the vendor thereafter held legal title as constructive trustee for the applicant.

Applying the Real Property Limitations Act rather than the Limitations Act, 2002, and relying on the Court of Appeal's constructive trust analysis, the court held the claim was not statute-barred because the error was only recently discovered and the applicant had not been dispossessed.

Service on the missing vendor was dispensed with and declaratory relief was granted with a direction to register the transfer.

Provincial sport association members of a national non-profit sought an order calling a members' meeting after the corporation's directors refused a requisition and then denied access to the membership list needed to call the meeting themselves.

The court held that the statutory exception permitting refusal where a proposal clearly seeks to enforce a personal claim or redress a personal grievance did not apply, because the dispute reflected broad policy and governance disagreements rather than a narrow personal vendetta.

The respondent's pending request to the Director for an exemption from disclosure of the members register did not create any stay or justify frustrating the applicants' meeting rights.

The court ordered the corporation to call a meeting to consider the resolutions set out in the April 2, 2015 notice.

This was a standalone costs endorsement following a wrongful dismissal action in which the plaintiff achieved only limited monetary success.

The court held that the plaintiff was nevertheless the successful party, but reduced the costs recovery significantly because the defendant had substantial success on the main issues of inducement and bonus entitlement.

The court also held that the defendant's time-limited pre-litigation settlement offer had only limited relevance because it expired before litigation and was not maintained in proper Rule 49 form.

Costs were fixed at $7,500 inclusive of disbursements and HST in favour of the plaintiff.

The plaintiff was involved in a rear-end motor vehicle collision after an unidentified school bus spun out of control on the highway.

The plaintiff sued the unidentified driver and his own insurer under the unidentified motorist coverage.

The insurer brought a motion for summary judgment to dismiss the action, arguing the plaintiff was solely responsible for the collision.

The court dismissed the motion, finding the plaintiff established a prima facie case of negligence against the bus driver that required a trial.

The court also declined to use its expanded fact-finding powers under Rule 20.04(2.1) because the plaintiff had served a jury notice, and it was in the interests of justice to preserve the right to a jury trial.

The defendants, residents of California, brought a motion to stay the proceeding on the grounds that Ontario lacked jurisdiction and was not a convenient forum.

The plaintiffs alleged the defendants breached fiduciary duties and misappropriated assets while employed by the plaintiffs.

The plaintiffs argued that because they moved their corporate operations from Quebec to Ontario after the alleged wrongs, Ontario acquired jurisdiction.

The court applied the Van Breda framework and held that a plaintiff cannot import jurisdiction by moving to a new province after the fact.

The motion was granted and the proceeding was stayed.

The applicant son sought to have the deceased's pre-death transfer of the family home to her husband and children clawed back into her estate as a 'gift mortis causa' under s. 72(1)(a) of the Succession Law Reform Act, to satisfy his dependent support claim.

The deceased had transferred the property as joint tenants shortly after being diagnosed with terminal cancer.

The court dismissed the application, finding that the transfer was absolute rather than conditional on her death, and noted that the doctrine of donatio mortis causa generally does not apply to real property.

The defendants brought a motion for summary judgment to dismiss the plaintiff employer's claims for breach of a non-solicitation agreement, breach of fiduciary duty, duty of fidelity, negligence, and 'time theft', and to grant the defendant employee's counterclaim for constructive dismissal.

The court dismissed all of the plaintiff's claims, finding the non-solicitation clause void and expired, the employee not to be a fiduciary, and the remaining claims without merit.

The court granted summary judgment on liability for the employee's constructive dismissal counterclaim, finding the employer created a toxic work environment and repudiated the employment contract, and directed a trial solely on the quantum of damages.

The plaintiff sued the defendant ski resort for negligence after fracturing his clavicle by colliding with a fluorescent orange mesh ribbon used to close a ski run at night.

The defendant moved for summary judgment, arguing there was no negligence and relying on a signed liability waiver.

The court granted the motion, finding no genuine issue requiring a trial.

Using enhanced fact-finding powers, the court determined the obstacle was clearly visible, snow-making equipment was not operating, and the plaintiff failed to keep a proper lookout.

Furthermore, the court held that the liability waiver signed by the plaintiff was prominently displayed, fully enforceable, and provided a complete defence to the claim.

The defendant Catholic Children's Aid Society brought a motion to strike the plaintiff mother's claim against it for negligent investigation.

The mother alleged the investigation was negligent due to a failure to provide French language translation services.

The court applied the Supreme Court of Canada's decision in Syl Apps, holding that a Children's Aid Society owes its duty to the children and owes no duty of care to the parents during an investigation.

The mother's personal claim against the Society was struck without leave to amend, though the children's claims remain.