Steven Pickard

The appellant appealed the dismissal of his motion for an order to allow the late filing of his statement of claim regarding the sale of allegedly defective dairy cows.

The appellant failed to file the statement of claim within the 30-day deadline after issuing a notice of action.

The Court of Appeal upheld the motion judge's decision, finding no error in the conclusion that the appellant's explanation for the delay lacked necessary detail and that the respondent suffered prejudice due to the expiry of the limitation period.

The appeal was dismissed.

The parties were unable to agree on costs following a two-hour motion.

The court noted that the responding party's submissions suffered from hyperbole and caused unnecessary rancour, while the moving parties' costs request was wildly excessive and unsubstantiated.

The court fixed costs at $5,000 in the cause.

The plaintiff brought a motion to amend its statement of claim to add a related numbered company as a defendant.

The defendants opposed, arguing prejudice and noting the plaintiff failed to request leave under Rule 48.04.

The court granted the motion, finding the failure to request leave was a technical defect that could be remedied.

The court noted the defendants and their counsel appeared to be engaged in a game of 'catch us if you can' regarding the complex ownership of the property where the materials were supplied, and found no prejudice in allowing the amendment.

The respondents brought a motion to vary a consent order, which the court determined was an interlocutory injunction, to remove restraints on their ability to deal with the assets of 1889072 Ontario Limited.

The applicant sought the continuation of this injunction.

The court found that the applicant failed to satisfy the prerequisites for an interlocutory injunction as established in RJR-MacDonald Inc. v. Canada (Attorney General), specifically regarding a strong prima facie case, irreparable harm, and an undertaking as to damages.

Consequently, the respondents' motion was granted, and the interlocutory injunction was not continued.

This endorsement addresses the costs arising from the successful motions by several defendants to dismiss the plaintiff's action for delay.

The successful defendants sought full or substantial indemnity costs, alleging the plaintiff's action was frivolous or vexatious, or that there was a Mary Carter agreement.

The court found no sufficient justification to depart from the usual order of partial indemnity costs, as there were no findings on the merits of the action, nor evidence of frivolous conduct or collusion.

The court awarded partial indemnity costs to the successful defendants, specifying amounts for the motion to dismiss and the remainder of the action.

The plaintiff brought a motion compelling former counsel to deliver the litigation file after the lawyer removed himself as counsel of record due to unpaid accounts.

The former solicitor asserted a solicitor’s lien over the file under s. 6(6) of the Solicitors Act.

The court reviewed the distinction between situations where a solicitor discharges the client and where the client discharges the solicitor.

Because the solicitor had withdrawn from the retainer, the court held the file must be delivered to allow continuation of the underlying lawsuit, though the solicitor’s lien remained preserved.

The court ordered delivery of the file subject to undertakings from new counsel and maintained the lien against any eventual recovery.

The appellant municipality appealed an application judge's interpretation of a development agreement regarding the costs of operating a pumping station.

The Court of Appeal found no error in the application judge's conclusion that the costs of operation, as distinct from maintenance and repair, are to be borne by the municipality and not the developer.

The appeal was dismissed.