Shawn J. O’Connor

A personal injury action arising from a 12-year-old plaintiff leaping from a balcony in community housing after an intruder forced his way into her apartment.

The defendants moved to strike portions of the statement of claim and to compel further production of documents.

The court dismissed the motion to strike, finding the pleadings relevant to establishing foreseeability and duty of care.

The court granted the motion for further affidavits of documents but directed the parties to engage in collaborative discovery planning under Rule 29.1 before compliance.

No costs awarded due to divided success.

The Court of Appeal for Ontario dismissed an appeal by S.D.M.O. Industries (Kohler-SDMO) and Kohler Co., who sought to stay proceedings on the basis of lack of jurisdiction or a forum selection clause favoring a French court.

The court held that Ontario had jurisdiction, the forum selection clause was not proven to be valid or applicable, and the motion judge made no reviewable error.

The appeal was dismissed with costs.

The plaintiffs brought an action for damages arising from catastrophic failures of emergency generators at a hospital.

Defendants SDMO and Kohler moved to stay proceedings, arguing lack of jurisdiction or that Ontario was not an appropriate forum.

The court found Ontario had jurisdiction simpliciter as the torts (property damage, failure to warn, negligent misrepresentation) occurred in the province.

The court also found the forum selection clause in the contract between SDMO and GAL Power was not properly before the court and would not apply to third parties or be enforceable against GAL Power.

Finally, the court determined Ontario was the most appropriate forum, considering the location of parties, witnesses, and evidence, and the existence of related proceedings.

The motion for a stay was dismissed.

The defendants brought a motion for leave to deliver two supplementary affidavits after cross-examinations had taken place, in the context of a plaintiffs' motion for a certificate of pending litigation.

The court applied the four-part test for granting leave under Rule 39.02(2), considering relevance, responsiveness to cross-examination, potential prejudice, and explanation for delay.

The court found the evidence relevant and responsive, no non-compensable prejudice, and accepted the explanation for delay, noting that some documents were already in the opposing party's possession.

The motion was granted, and the plaintiffs were ordered to pay costs.

The moving party defendants, who were directors of the corporate defendants, brought a motion to strike the plaintiffs' claim against them for disclosing no reasonable cause of action.

The plaintiffs, who sold their family farm to the corporate defendants and were left with worthless preference shares following insolvency proceedings, alleged the directors acted oppressively and sought personal liability under s. 241 of the Canada Business Corporations Act.

The court found that the plaintiffs' amended statement of claim sufficiently pleaded facts that, if proven, could support a finding of oppression and personal liability against the directors.

The motion to strike was dismissed.

This decision addresses a costs endorsement following the dismissal of the plaintiff's motion to strike a jury notice as premature.

The parties had initially agreed to partial indemnity costs for the motion, but the defendant, having successfully opposed the motion, sought substantial indemnity costs.

The court considered the defendant's offers to settle, noting they did not trigger Rule 49 consequences.

Despite the defendant's success, the court declined to award substantial indemnity costs, finding the plaintiff's refusal of the offers was not unreasonable given the rapidly evolving legal landscape concerning jury trials during the COVID-19 pandemic and the defendant's shifting position.

Partial indemnity costs of $4,000 were awarded to the defendant.

The plaintiff brought a motion to strike the defendant's jury notice due to the suspension of civil jury trials in Ottawa caused by the COVID-19 pandemic.

The plaintiff argued that the delay in obtaining a jury trial date caused her financial prejudice under the Insurance Act.

The court found the motion premature because the parties were not yet ready for trial, requiring updated medical and actuarial reports.

The motion was dismissed without prejudice to the plaintiff's right to bring a similar motion once the action was trial-ready.

The plaintiff, Ocean Dredging DM Inc., brought a motion for an interlocutory injunction to prevent the defendant, Kehoe Marine Construction Ltd., from breaching a Memorandum of Understanding (MOU) and to compel the defendant to negotiate subcontracts for a marine dredging project.

The court found that the relief sought was mandatory in nature, requiring a strong prima facie case.

The court dismissed the motion, concluding that the MOU was an agreement to negotiate with many outstanding terms, the plaintiff failed to demonstrate irreparable harm, and the balance of convenience favoured the defendant.

The parties appeared to settle the form of a judgment and verify compliance with preconditions to enforcement set out in a previous decision.

The preconditions required the plaintiff to provide certain corporate records and proof of share ownership to the defendant.

Due to the defendant's geographical and communication difficulties in China, the court settled the form of the judgment but deferred ruling on whether the preconditions had been met, allowing the defendant 30 days to review the evidence with counsel.

The plaintiff brought an action to enforce a promissory note for USD $200,000 against the defendant.

The defendant counterclaimed for rescission of the note and damages for mismanagement of a corporation they co-founded.

The court found the promissory note to be valid and enforceable, rejecting the defendant's claims of duress and mistake.

The counterclaim was largely dismissed due to a binding arbitration clause and lack of jurisdiction over the foreign corporation, but the court stayed enforcement of the judgment until the plaintiff produced certain corporate records to the defendant.

The defendant brought motions for leave to amend his counterclaim to add a claim for misappropriation of founder shares, for substituted service, and for document production.

The court dismissed the motion to amend, finding the defendant lacked standing to assert a claim on behalf of his nominee corporation and that the dispute was subject to an international arbitration agreement.

The request for substituted service was also dismissed due to a lack of evidence of impracticability.

However, the court ordered the plaintiff to produce relevant corporate documents within his power.

The appellant appealed a partial summary judgment granted by the motion judge in a rear-end motor vehicle collision case that occurred on an icy road during freezing rain.

The appellant argued that the motion judge applied the wrong test and failed to address the alleged contributory negligence of the respondent, contending that the respondent should not have stopped on the highway.

The Court of Appeal dismissed the appeal, finding no palpable or overriding error and confirming that the motion judge correctly applied the summary judgment test.

The court upheld the finding that the respondent did not act negligently in stopping her vehicle given the road conditions and visibility issues.

This decision addresses the costs arising from a successful summary judgment motion brought by the defendants Nisco Inc. and HVL Ltd. against the plaintiffs.

Nisco had provided financing for a tow truck to Mark Pittuck, who was later seriously injured due to equipment failure.

Nisco's motion for summary judgment was granted, dismissing the plaintiffs' action against it.

Nisco sought costs on a full indemnity basis, citing an indemnity clause in the lease agreement and an offer to settle.

The plaintiffs argued for lower costs, emphasizing their impecuniosity and the absence of reprehensible conduct.

The court, applying Rule 57 of the Rules of Civil Procedure, awarded Nisco $15,000 for the summary motion, $5,000 for costs in the actions, and $5,000 for disbursements against the main plaintiffs, and $4,000 against Sandy Tennant, considering the complexity, importance, and reasonable expectations of the losing party, as well as the plaintiffs' impecuniosity.

Nisco National Leasing, a division of HVL Ltd. ("Nisco"), brought a motion for summary judgment to dismiss claims against it by Mark Pittuck and other plaintiffs.

Pittuck was injured while operating a leased tow truck, alleging Nisco's negligence for failing to remove a dangerous "side puller" or provide maintenance instructions.

The court found that the commercial lease agreement explicitly placed responsibility for inspection, acceptance, and maintenance of the tow truck solely on Pittuck, and Nisco was not a dealer or manufacturer.

The court determined that the Sale of Goods Act did not apply to the commercial lease, and the contractual terms limited Nisco's duty of care, taking precedence over any potential tort claim.

Nisco's motion for summary judgment was granted, dismissing the claims.

Following a successful summary judgment motion on liability, the plaintiff sought costs for both the motion and the liability portion of the action.

The defendant opposed, arguing costs should be proportionate to future damages and seeking a credit for costs received from a third-party settlement.

The court rejected the defendant's arguments, finding no reason to defer costs and that the third-party settlement was irrelevant to the costs between the main parties.

The court fixed costs on a partial indemnity basis for the action's liability portion and a substantial indemnity basis for the motion, totaling $50,000 inclusive of disbursements and HST.

The plaintiff, Margaret Ozimkowski, moved for partial summary judgment on liability against the defendant, Luc Raymond, following a rear-end motor vehicle collision on an icy road.

The defendant argued that the plaintiff's actions and the icy road conditions created a genuine issue for trial, and that granting partial summary judgment would risk inconsistent findings with his third-party claim against the County of Lanark.

The court found that the defendant failed to disprove his negligence, as the plaintiff's stop was reasonable given the conditions and visible emergency lights.

The court also determined that there was no risk of inconsistent findings with the third-party claim, as the issues were distinct.

Partial summary judgment on liability was granted to the plaintiff, with damages to be assessed at trial.

The plaintiff, a former nursing student, sued the defendants (individual employees and two educational institutions) for various torts after being wrongfully accused of academic fraud.

The defendants brought a motion to strike portions of the amended statement of claim.

The court struck the claims for personal liability against individual defendants, breach of fiduciary duty, and defamation, but granted leave to the plaintiff to amend the claim within 45 days.

The court found that the plaintiff failed to plead sufficient particulars for personal liability of employees, failed to establish the elements for a fiduciary duty, and did not plead that the defamatory words were spoken or written by the university defendants.

Costs were agreed upon by the parties.

A third party brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike a third party claim for contribution and indemnity on the basis that it disclosed no reasonable cause of action.

The moving party argued that there was no contractual relationship with the defendant in the main action and therefore no basis for liability, and further that the damages claimed were not the same.

The court applied the generous “plain and obvious” test governing motions to strike and reviewed the scope of third party claims under Rule 29.01.

It held that it was arguable the parties owed each other a duty of care in negligence arising from their roles in the same construction project and that the claim could also constitute an independent claim arising from the same transaction.

Because it was not plain and obvious that the claim disclosed no reasonable cause of action, the motion to dismiss the third party claim was refused.