Priti Tamara Sugunasiri

Acasi Machinery Inc. brought a motion to stay an action commenced by Jeremy Kessler Canadian Mustard Inc. o/a Kozlik’s Mustard in Ontario, arguing that a forum selection clause in their contract mandated disputes be resolved in Florida.

The court dismissed the motion, finding strong reasons to avoid the clause.

The clause was neither negotiated nor brought to Kozlik's attention, indicating an unequal bargaining power.

The court also applied the Moran principle, stating that manufacturers should expect to defend negligence claims where their products are used, and noted that the availability of Zoom reduces the significance of witness location in determining the convenient forum.

Ontario was found to have a real and substantial connection and to be the convenient forum.

The plaintiff, Wasiem Diab, sought repayment of $161,000 allegedly loaned to the defendants, George and Haralabos Tsitsos (referred to as Bobby and Georgia), for a property purchase.

The defendants denied an oral loan agreement with Diab, asserting the money came from Kakouli Poka, who later revealed Diab as the source.

The court granted summary judgment, dismissing Diab's action.

The court found no direct oral agreement between Diab and Bobby, rejected theories of past consideration and agency, and concluded that the pleadings did not support claims against Georgia or the "primary debtor" theory.

The defendants (Franchisor Group) brought a motion for a collective security for costs order against three corporate plaintiffs (Franchisees) involved in related but unconsolidated actions, seeking a global payment of $597,427.32.

The court dismissed the motion, finding no legal basis under Rule 56.01 for a collective security for costs order against plaintiffs in separate actions.

The court also declined to grant alternative relief (separate security orders) under the "basket clause" of the notice of motion, citing procedural unfairness due to lack of proper notice and the arbitrary nature of quantifying security without a detailed breakdown of costs per action.

This decision addresses costs arising from a security for costs motion and an adjournment motion.

The court considered the length of costs submissions, the entitlement of a self-represented litigant to costs, and the factors under Rule 57.01.

The self-represented plaintiff was awarded $2,000 for a successful adjournment motion, but was ordered to pay the defendants $12,037.71 in substantial indemnity costs due to her obstructive conduct throughout the proceeding, which tended to lengthen it.

The Paragon Defendants brought a motion for security for costs against the self-represented plaintiff, Tanya Rebello, under Rule 56.01(1)(e) of the Rules of Civil Procedure.

They argued that her action was frivolous and vexatious and that she had insufficient assets to pay adverse costs.

The court determined that a prior ruling under Rule 2.1.01, which found the action not frivolous or vexatious on its face, did not bind the current motion due to different tests and evidentiary considerations.

The Master found good reason to believe the action was frivolous and vexatious, citing incredible allegations and the plaintiff's conduct, and that she had not demonstrated sufficient assets.

The court ordered the plaintiff to post $23,713.93 in security for costs.

Kenaidan Contracting Limited and Bouygues Building Canada Inc. (BKJV) brought a motion for security for costs against Lancaster Group Inc. in a construction lien action.

The court granted leave for the motion under section 67(2) of the Construction Lien Act, finding that BKJV had demonstrated indicia of instability regarding Lancaster's financial health, supported by an Equifax report.

Lancaster failed to provide clear and convincing evidence of sufficient appropriate assets to satisfy an adverse costs order, as its claimed assets were either held by a separate, related entity or encumbered by secured creditors.

Considering the overall justice of the case, including the absence of an impecuniosity claim by Lancaster and the "soft" nature of BKJV's counterclaim, the court ordered Lancaster to pay $60,000 into court as security for costs up to the end of oral discoveries, with the possibility of further security for later stages.

The City of Toronto sought permission to issue a writ of seizure and sale against Ms. Mohammadi-Kia, more than six years after a 2004 civil judgment for social assistance fraud restitution.

Ms. Mohammadi-Kia, self-represented, opposed the motion, arguing unjust conviction, inadequate legal representation, limited means, a belief the debt was waived, and that the target property was not hers.

The court allowed the City to issue the writ, finding the City adequately explained its delay and did not intend to waive the debt.

While Ms. Mohammadi-Kia genuinely believed the debt was no longer pursued, she failed to demonstrate detrimental reliance.

The court also declined to award costs to the City, noting its delay in seeking the writ.

Karen Deer initiated an action against RBC Dominion Securities Inc. and others, alleging unauthorized margin account activity.

She issued a Notice of Action but failed to file a Statement of Claim within the prescribed 30 days, leading to the presumptive expiry of a limitation period under the Securities Act.

Deer moved to extend the time for filing her Statement of Claim and validate its service.

RBC opposed, arguing non-compensable prejudice due to the loss of a limitations defence.

The court granted Deer's motion, finding a reasonable explanation for the delay and no actual prejudice to RBC, emphasizing the policy of adjudicating cases on their merits over strict adherence to procedural rules when no substantive prejudice exists.

The defendant moved to discharge a Certificate of Pending Litigation (CPL) that the plaintiff had obtained ex parte.

The court found that the plaintiff failed to make full and frank disclosure of material facts, specifically the existence of two agreements relinquishing his interest in the property, and relied on a fraudulent invoice.

The court also considered that damages would be an adequate remedy for the plaintiff and that the defendant would suffer prejudice if the CPL remained.

Concluding that the plaintiff did not come to court with clean hands, the Master ordered the discharge of the CPL.

Nexen Energy commenced identical actions in Alberta and Ontario against ITP SA for damages arising from a pipeline rupture.

While the Purchase Order specified Ontario as the exclusive dispute resolution forum, ITP SA defended the Alberta action and sought to use the Ontario forum selection clause to have a discrete issue of law (interpretation of liability limits) adjudicated in Ontario via a Rule 21 motion before the Ontario action was stayed.

Nexen Energy moved to stay its own Ontario action.

The Master found "special circumstances" overriding the forum selection clause, preventing ITP SA from "slicing and dicing" the case.

The Master granted Nexen Energy's motion, permanently staying the Ontario action, and directed ITP SA's motion to Alberta, citing judicial economy, efficiency, and consistency, given the active case management in Alberta and the multi-party nature of the dispute.

The defendant, Ali Sobhani, brought a motion to amend his Statement of Defence and counterclaim after partial summary judgment had already been granted, finding him liable for breach of an Agreement of Purchase and Sale and forfeiture of his deposit.

The proposed amendments sought to introduce defences of frustration, impossibility, and force majeure, and to reclaim the deposit.

The motion was dismissed on the grounds of res judicata and issue estoppel, as the issue of liability had been finally determined by Justice Charney.

The court found no exceptional circumstances to warrant re-litigation of liability.

This costs endorsement followed the dismissal of Edwin Allan's motion for a certificate of pending litigation (CPL).

Gordon and Joyce Allan, the successful responding parties to the CPL motion, sought $65,000 in substantial indemnity costs, citing formal and informal settlement offers.

Edwin Allan argued the quantum was excessive and payment should be deferred until trial, alleging the respondents inflated costs.

The court determined that Gordon and Joyce Allan were not entitled to substantial indemnity costs under Rule 49.10(2) as they were the responding parties.

The court fixed partial indemnity costs at $20,000, inclusive of disbursements and HST, to be paid by Edwin Allan within 60 days, finding the requested amount exorbitant given the motion's simplicity and the retention of senior counsel.

The defendants, Medi-Promotions Inc. and PrintPad (2009) Inc., moved to stay the action for want of territorial and subject-matter jurisdiction and to strike the claim as an abuse of process.

Defendant Marktech Services Inc. also moved to strike portions of the Statement of Claim.

The court dismissed the motions to stay and to strike for abuse of process, finding a real and substantial connection to Ontario and that Ontario was the convenient forum.

However, the court granted the motion to strike specific portions of the Statement of Claim, including the tracing claim against Marktech and the fraudulent activities and bad faith allegations against all moving defendants, due to insufficient material facts and lack of specificity, but granted the plaintiffs leave to amend.

The respondent, 1034179 BC Ltd., brought a motion to stay an application by Real Crowd Capital Inc. in Ontario, arguing that Ontario lacked jurisdiction and that British Columbia was the more convenient forum.

The application concerned a claim for commissions under an Engagement Letter for securing real estate financing.

The Master determined that she had jurisdiction to decide both jurisdiction simpliciter and forum non conveniens.

The Master found that the contract was formed in Ontario, establishing a real and substantial connection, and that the respondent failed to rebut this presumption.

Furthermore, the Master concluded that British Columbia was not clearly the more convenient forum, considering factors such as the location of parties, witnesses, applicable law, and litigation costs.

The motion to stay was dismissed, and costs were awarded to the applicant.

The plaintiff, a land developer, brought a motion for leave to issue a certificate of pending litigation (CPL) over one of the defendant's properties, 5318 Stouffville Road, based on a right of first refusal (ROFR) in a development management agreement.

The defendant opposed the motion, arguing the ROFR had terminated, was void for vagueness, or was not triggered as the property was part of a larger package.

The court found that while the plaintiff raised a triable issue regarding the ROFR, it failed to demonstrate the uniqueness of the land or that damages would be an inadequate remedy.

Considering the defendant's advanced age and reliance on the property for retirement, the court concluded that the harm to the defendant from a CPL outweighed the harm to the plaintiff, whose losses could be compensated by damages.

The motion for leave to issue a CPL was dismissed.

The defendant, Sandeep Prabakhar, brought a motion to set aside default judgment, the noting in default, and a writ of seizure and sale obtained by the plaintiff, Merchant Advance Capital Ltd. Prabakhar claimed he was a victim of fraud, denying he signed the underlying agreement or personal guarantee, and that his previous counsel failed to act promptly.

The court applied the test from Mountain View Farms Ltd. v. McQueen, finding a plausible explanation for the default and an arguable defence with an "air of reality." The court also determined that the overall justice of the case favoured setting aside the default and removing the writ, as the plaintiff had rushed to judgment without warning.

Elizabeth Ogunlesi brought a motion seeking to amend her claim, consolidate two actions, and obtain an order for security for costs in both.

The primary issue addressed by the court was security for costs.

In the Residential Action (CV-13-473552), the motion for security for costs against Talon International Inc. was dismissed, as Talon's counterclaim was found to be inextricably linked to the main claim, functioning as a defence.

In the companion Hotel Action (CV-14-515666), the court ordered Talon International Inc. to post $10,000 as security for costs to the end of pre-trial, finding that Talon, as a corporation in receivership, had insufficient assets in Ontario to pay costs, satisfying Rule 56.01(1)(d).

M.S. Hardwood brought a motion for substantial indemnity costs against Gaydon Contractors Ltd. following Gaydon's discontinuance of a Fourth Party Claim.

Gaydon had issued the Fourth Party Claim against M.S. Hardwood based on a cursory mention of flooring deficiencies in the Plaintiff's Statement of Claim, despite earlier discoveries indicating no such issues.

Gaydon also brought a cross-motion seeking to recover these costs from the Plaintiff and Defendants.

The court granted M.S. Hardwood's motion, finding Gaydon failed to conduct due diligence and that its claim was frivolous and vexatious.

Gaydon's cross-motion was dismissed, with the court noting minimal culpability for the Plaintiff and none for the Defendants.

The court also commented on the disproportionate costs incurred by all parties in arguing these motions.

The defendant brought a motion to strike portions of the plaintiff's Reply and Defence to Counterclaim under Rule 25 of the Rules of Civil Procedure.

The court applied principles of pleading, striking some paragraphs for being prejudicial, legal argument, or evidence, while allowing others deemed harmless or legitimate responses to serious allegations.

The Master emphasized that procedural motions to clean up pleadings are only warranted if they promote a cost-effective, efficient, and just resolution.

The motion was partially successful, with costs awarded to the moving party.

The plaintiff, Unlimited Motors Inc., sought to continue a $30 million action for breach of contract and other claims after it had lapsed, requiring a status hearing under Rule 48.14 of the Rules of Civil Procedure.

The court found the plaintiff's explanation for a 2.5-year delay unacceptable, primarily due to a deliberate choice to prioritize another lawsuit.

The plaintiff also failed to provide robust evidence demonstrating an absence of non-compensable prejudice to the defendant or trial fairness, despite the defendant's own inaction on its counterclaim.

The motion to continue the action was dismissed, and the plaintiff was ordered to pay costs.