Theresa R. Simone

The applicants brought a motion to set aside a summons to witness issued to their counsel, Leo Klug.

The respondent sought to examine Mr. Klug on a pending motion to remove him as counsel of record, alleging he failed to advise the court of an agreement to adjourn a previous motion and proceeded in the respondent's absence.

The court dismissed the applicants' motion, finding this was a rare situation where examining opposing counsel was justified, as Mr. Klug was the only person who could provide necessary and material evidence regarding his conduct in court.

The moving party sought costs after being mostly successful on a motion to prohibit the responding party's counsel from appearing on a pending motion to quash.

The court found the moving party was entitled to costs but reduced the requested amount by 50% due to divided success and the straightforward nature of the motion.

Costs were fixed at $6,200 for the moving party and $500 for the supporting party, payable after the final determination of the remaining motions.

The respondent brought a motion to prohibit the applicants' counsel from appearing on a pending motion to quash a summons to witness, arguing that the counsel was the primary source of contentious evidence.

The respondent also sought to strike portions of the applicants' affidavits.

The court granted the motion to prohibit counsel from appearing, finding it improper for a lawyer to act as counsel when they are the source of important and contentious evidence, even if provided via information and belief.

The motion to strike the affidavits was dismissed as premature.

Following a prior summary judgment decision finding that a settlement had been reached between the parties, the defendants brought a motion to adduce fresh evidence concerning the date on which two settlement cheques were negotiated.

The moving parties relied on Rules 52.10 and 59.06 of the Rules of Civil Procedure and argued that bank statements showing the cheques were cashed earlier than assumed would materially affect the findings regarding their intention to be bound by the settlement.

The court held that the proposed evidence could have been obtained and presented with reasonable diligence during the original summary judgment motion and therefore did not satisfy the requirements for admitting fresh evidence under the Palmer test.

The court further concluded that, even if admitted, the evidence would not have changed the outcome because the defendants never demanded repayment of the funds after the plaintiff proposed revised payment terms.

The motion to adduce fresh evidence was dismissed.

Following a successful summary judgment motion concerning a debt dispute and alleged settlement, the plaintiff sought substantial costs for the motion and the broader action.

The court held that the defendants had unnecessarily complicated what was a relatively straightforward settlement issue through procedural steps and a counterclaim.

However, the court emphasized proportionality and the principle that the losing party should not reasonably expect to pay for two senior counsel on a relatively simple motion.

Applying Rule 57.01 of the Rules of Civil Procedure and the principles in Boucher v. Public Accountants for the Province of Ontario, the court reduced the claimed costs and fixed partial indemnity costs for the motion.

The court deferred determination of the remaining action costs pending resolution of issues relating to the counterclaim.

The applicant sought appointment of an arbitrator to determine post‑closing purchase price adjustments under a share purchase agreement after the respondents refused to engage the designated accounting firm arbitrator and raised allegations of bias based on the accounting firms having previously retained the applicant’s law firm in unrelated matters.

The court reviewed the legal test for reasonable apprehension of bias applicable to arbitrators and held that the mere fact that an accounting firm had retained counsel for one party in unrelated insolvency matters does not give rise to a reasonable apprehension of bias.

The court found the respondents’ allegations meritless and concluded their conduct had derailed the agreed arbitration process.

Although a former judge was ultimately appointed as arbitrator on consent, the court determined the applicant had lost its contractual right to the designated arbitrator due to the respondents’ unjustified conduct.

Significant costs were ordered against the respondents for acting in bad faith and breaching earlier court orders.

The plaintiff brought a motion for summary judgment seeking to enforce an alleged settlement agreement arising from a dispute over unpaid invoices for agricultural produce.

The defendants argued that no binding settlement existed because the parties never reached agreement on a fundamental term, namely the schedule of repayment.

The court held that the parties had reached a binding settlement on the principal compromise amount through email exchanges and subsequent conduct, including the issuance and negotiation of cheques consistent with the proposed settlement.

Silence in response to a counter‑proposal combined with partial performance supported an inference that the repayment terms were accepted.

Summary judgment was granted enforcing the settlement against certain corporate defendants but not against the individual defendants.

Following a decision that granted a motion to strike certain affidavit evidence but dismissed an application challenging an arbitral award, both parties sought costs.

The respondent, successful on the application, sought substantial indemnity costs, while the applicant sought costs for its successful motion to strike.

The court declined to award substantial indemnity costs to either party, finding the conduct did not reach the threshold of reprehensible behaviour and there were no settlement offers.

The court held that each side had partial success and that reasonable partial indemnity costs would be similar for both.

As a result, the court ordered that each party bear its own costs.

The applicant sought to set aside an arbitral award arising from a dispute between two agricultural businesses over the purchase and sale of carrot products conducted under the Fruit and Vegetable Dispute Resolution Corporation arbitration process.

The applicant argued jurisdictional errors, procedural unfairness, improper reliance on mediation materials, lack of arbitrator expertise, and the applicability of the International Commercial Arbitration Act.

The court held that the Arbitration Act, 1991 applied because the dispute involved two Ontario businesses and the arbitration was not international.

The application to set aside the award was statute‑barred because it was brought outside the 30‑day limit under the Arbitration Act and the court had no jurisdiction to extend the time.

In any event, the court found no jurisdictional error or procedural unfairness warranting intervention.

In a real estate commission dispute, the plaintiff brokerage sought leave to amend its statement of claim to add an additional plaintiff and defendant and to plead rectification or rescission of an assignment of a listing agreement.

The defendant brought a Rule 21 motion to strike the claim on the basis that the assignment transferred all rights to commission to another brokerage and left the plaintiff without privity of contract.

The court held that amendments should generally be permitted unless clearly untenable or prejudicial and found the proposed amendments raised legally tenable issues regarding the enforceability of the assignment agreement, limitation periods, and potential duties owed by the proposed defendant brokerage.

The court also concluded that it was not plain and obvious that the limitation period had expired.

Leave to amend and add parties was granted and the motion to strike was dismissed.