Shawn Tock

The plaintiff brought a motion to amend its statement of claim to add three new defendants and a new cause of action for conspiracy to injure, nearly four years after the incident.

The defendants opposed, arguing the claims were statute-barred.

The court granted the motion, finding the plaintiff met the low evidentiary burden to show reasonable diligence in discovering the alleged conspiracy, which is secretive by nature.

The court also found the proposed pleading contained all necessary elements for a conspiracy claim.

The defendants were granted leave to plead a limitations defence.

The defendants brought a motion for leave to appeal a decision denying their request to vary a Mareva order to permit them access to the proceeds from the sale of their home to pay legal fees.

The court found that the proposed appeal did not involve matters of public importance transcending the immediate interests of the parties, nor were there conflicting decisions on the issue.

The motion for leave to appeal was dismissed.

This was a costs decision following an earlier order dismissing the action against one defendant, lifting a stay imposed after a security for costs order, and varying a timetable.

The court declined to make any costs order regarding the remaining defendants because the action continued against them and the record did not permit an assessment of merit.

The dismissed defendant was treated as successful in the action, particularly given the serious unwithdrawn allegations of deceptive conduct, bad faith, reprehensible behaviour, and fraud-like conduct.

Relying on the principle that unsubstantiated fraud or dishonesty allegations can justify elevated costs, the court awarded that defendant substantial indemnity costs fixed at $20,000.

The plaintiffs sought to preserve assets allegedly traceable to funds stolen by a former controller and bookkeeper.

After disclosure and a Mareva injunction, the defendants asserted that they lacked sufficient funds to pay expenses and legal counsel.

Applying the four-part test for variation of freezing orders, the court held that the defendants failed to provide reliable financial evidence, failed to establish other assets were unavailable, and failed to show the frozen assets were from a non-proprietary source.

The motion was dismissed, with written costs submissions invited.

Following an interlocutory motion concerning amendments to pleadings and document production, the court addressed costs.

The moving party had obtained leave to amend its statement of claim and partial relief for additional document production but was unsuccessful on a privilege issue that dominated the motion.

Applying s. 131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court held that costs must be fair and reasonable in light of partial success and the relative importance of the issues.

The responding parties were found to have been successful on the principal issue argued, though their claimed costs and request for substantial indemnity were excessive.

Partial indemnity costs of $2,500 were awarded against the moving party, with no costs order involving another responding party who played only a minor role.

The plaintiffs brought a motion seeking leave to amend their amended statement of claim to add a new defendant and to compel further production of documents from several defendants.

The court granted leave to amend and ordered the corporate defendants to produce bank statements, cancelled cheques, and related financial records relevant to the impugned real estate transactions.

However, the plaintiffs’ request for production of documents contained in the real estate lawyer’s files was refused on the basis of solicitor-client privilege.

The court held that privilege belongs to the clients and is not waived merely because another party places its state of mind in issue.

The fraud exception to privilege was not engaged because a prima facie case of fraud had not yet been established.

The appellants appealed from two motions for summary judgment granted under Rule 76.

The Court of Appeal allowed the appeal, finding that the motion judge erred by failing to explain how summary judgment could be awarded given the respondent's conflicting evidence on the claimed amount without cross-examination.

The motion judge also improperly ignored the responding affidavit that contested the respondent's accounting.

The summary judgment was set aside and the matter was sent to trial.