Thomas Hawkins

The plaintiff moved for leave to amend a statement of claim in a solicitors' negligence action arising from an alleged failure to commence underlying civil proceedings within time.

The responding defendants argued the proposed amendments introduced new causes of action that were statute-barred.

The court held the original and proposed amended pleading advanced only one cause of action, namely solicitors' negligence based on failure to carry out instructions, while the amendments merely expanded the alleged losses.

Leave to amend was granted and costs were fixed in favour of the moving party.

The defendants brought a motion for security for costs under r. 56.01(1)(d) and (e) of the Rules of Civil Procedure, alleging the corporate plaintiffs lacked sufficient assets in Ontario and that the action was frivolous and vexatious.

During the lengthy motion, additional affidavit evidence from the plaintiffs’ accountant later demonstrated that the plaintiffs’ financial circumstances had improved, leading the defendants to withdraw the security for costs motion.

The remaining issue concerned costs of the motion.

The court held the defendants were justified in bringing the motion based on the initial lack of financial disclosure and the plaintiffs’ poor financial condition at the outset.

Costs of $15,000 were awarded to the defendants, partly because the court had granted the plaintiffs an indulgence by admitting late affidavit evidence.

The plaintiff brought a motion to amend the statement of claim and substitute the correct corporate defendant in a slip and fall action arising from an accident in a No Frills grocery store.

The proposed defendant argued that the motion improperly attempted to add a new party after the expiry of the two‑year limitation period under the Limitations Act, 2002.

The court held that the plaintiff failed to establish discoverability to extend the limitation period, as there was no evidence rebutting the statutory presumption that the plaintiff knew the identity of the proper defendant when the accident occurred.

However, applying the misnomer doctrine under s. 21(2) of the Limitations Act, 2002 and the principles from appellate authority, the court found that the intended defendant would have understood that the litigation was directed at it despite errors in the name and address.

The amendment therefore constituted correction of a misdescription rather than the addition of a new party.

Leave to amend the claim and correct the defendant’s name and address was granted.

The moving defendants sought to set aside a noting of default and to strike the statement of claim.

Applying the principles governing relief from default, the court considered the conduct of the parties, the promptness of the motion, the complexity and value of the claim, and the absence of prejudice to the plaintiff.

The court set aside the noting of default to allow the defendants to defend the action.

On the accompanying motion to strike, the court found the pleading failed to comply with Rule 25.06(1) because it contained almost no material facts, consisted largely of lists of alleged wrongs, and was largely unintelligible.

The statement of claim was therefore struck in its entirety with leave to amend.

The plaintiff moved under Rule 37.14 to set aside a registrar’s order dismissing the action for delay after the matter was not set down for trial following a status notice.

The court applied the contextual approach endorsed in Scaini v. Prochnicki and considered the four Reid v. Dow Corning criteria: explanation for delay, intention to proceed, promptness of the motion, and prejudice to the defendants.

Although the litigation had experienced significant delay largely attributable to plaintiff’s counsel, the court found the failures resulted from inadvertence rather than deliberate disregard of the Rules of Civil Procedure.

The defendants failed to demonstrate meaningful actual prejudice beyond generic concerns about faded memories, particularly because examinations for discovery had already occurred.

Balancing the interests of the parties, the court set aside the dismissal, dispensed with mandatory mediation to avoid further delay, and ordered the plaintiff to set the action down for trial within 30 days while paying costs to several defendants.

The plaintiff brought a motion for leave to amend its statement of claim after the action had already been set down for trial.

The proposed amendments added specific legal characterizations of alleged wrongdoing, including fraudulent or negligent misrepresentation, deceit, intentional interference with economic relations, and unjust enrichment, and also sought additional remedies such as disgorgement of profits.

The court held that Rule 26.01 of the Rules of Civil Procedure permits amendments at any stage of the proceeding unless non-compensable prejudice would result.

The amendments did not introduce new causes of action but merely particularized existing allegations and clarified available remedies arising from the same factual matrix.

As no non-compensable prejudice would arise, leave to amend was granted.

The defendants brought motions seeking dismissal of the claim against an individual defendant and security for costs.

The plaintiff sought leave to amend the statement of claim to add allegations that the individual defendant improperly directed the corporate defendant not to pay a promissory note.

The court held the proposed amendments were insufficient to establish personal liability for a corporate officer because they did not plead conduct separate from the officer’s role as the directing mind of the corporation.

Leave to amend those portions of the pleading was refused, and the claim against the individual defendant was dismissed for failing to disclose a genuine issue requiring a trial.

The court also ordered the corporate plaintiff to post $25,000 as security for costs due to concerns about its ability to satisfy a potential costs award.

The plaintiff moved under r. 37.14 of the Rules of Civil Procedure to set aside a registrar’s order dismissing its action for delay under r. 48.14.

The court reviewed the contextual approach articulated by the Court of Appeal in Scaini v. Prochnicki and considered the four Reid criteria: explanation for delay, intention to proceed to trial, promptness of the motion, and prejudice to the defendants.

Although the plaintiff failed to provide a fully satisfactory explanation for lengthy litigation delay largely attributable to counsel’s inattention, the evidence demonstrated that the plaintiff intended to pursue the action and brought the motion promptly once the dismissal was discovered.

The court found no significant litigation prejudice to the defendants arising from the delay.

Balancing the interests of the parties, the registrar’s dismissal order was set aside subject to a timetable and a costs award to the defendants.

The plaintiffs, judgment creditors of the defendant Sandy DiFlorio, brought a motion for leave to issue a certificate of pending litigation against a property owned by Sandy's son.

The plaintiffs alleged that a $300,000 mortgage advance from Sandy to his son was a fraudulent conveyance designed to defeat creditors.

The court applied the criteria under section 103(6) of the Courts of Justice Act and found the plaintiffs had a reasonable claim to an interest in the land.

The motion for a certificate of pending litigation was granted.

A secondary motion to strike a statement of defence for unpaid costs was dismissed with leave to renew if costs remained unpaid.

The applicant brought a motion under the Evidence Act and Canada Evidence Act seeking orders related to a letter rogatory issued in litigation pending before a Utah court.

The motion requested substitution of a new applicant, EdiZONE LLC, and the addition of two individuals as respondents to the Ontario application.

The court held that the substitution of the applicant was unopposed and should be granted.

It further concluded that the presence of the proposed respondents was necessary to enable the application judge to adjudicate effectively and completely on the issues related to the letter rogatory request.

The motion to add the proposed respondents was therefore granted, while costs were reserved to the application judge.

The defendants brought a motion under Rule 19.03(1) of the Rules of Civil Procedure to set aside a registrar’s noting of default entered at the plaintiff’s request in a motor vehicle personal injury action.

The court applied the factors set out in Bardmore, including the parties’ conduct, length and reasons for delay, complexity and value of the claim, and potential prejudice.

Although the defendants’ insurer delayed retaining counsel and delivering a defence, the court found the three‑month delay was not excessive and there was no evidence of non‑compensable prejudice to the plaintiff.

The court therefore exercised its discretion to set aside the noting in default on terms requiring prompt litigation steps.

Despite their success, the defendants were ordered to pay the plaintiff’s motion costs as the relief constituted an indulgence.

The moving party sought leave under Rule 26.01 of the Rules of Civil Procedure to amend her amended statement of claim in an action alleging breach of an automobile insurance policy and related civil wrongs.

The responding insurer opposed the amendments on multiple grounds, including improper pleading of evidence, lack of particulars, untenable claims, statute‑barred causes of action, and improper withdrawal of prior admissions.

The court conducted a detailed line‑by‑line review of the proposed pleading, striking numerous allegations for vagueness, irrelevance, improper argument, or lack of material facts, while permitting certain allegations to stand or to be re‑pleaded with specified particulars.

The court also refused leave to withdraw an earlier admission regarding damage caused by third parties, finding the moving party failed to meet the test for withdrawing an admission.

Costs of the motion were reserved to the trial judge.

At a status hearing under Rule 48.14(13) of the Rules of Civil Procedure, the plaintiff was required to show cause why its action should not be dismissed for delay.

The court held that the plaintiff bore the onus of demonstrating both an acceptable explanation for litigation delay and that the defendants would suffer no non-compensable prejudice if the action proceeded.

The plaintiff filed only a brief affidavit that failed to explain extended periods of inactivity and provided no evidence addressing prejudice.

Evidence from the remaining defendants established that key witnesses could no longer be located, creating significant litigation prejudice.

The court concluded the plaintiff failed to meet either branch of the test and dismissed the action for delay with costs.

The moving defendants sought a sealing order under subsection 137(2) of the Courts of Justice Act to seal various motion materials, transcripts, and future filings in a commercial civil action.

The court applied the confidentiality order test from Sierra Club of Canada v. Canada (Minister of Finance), requiring proof that disclosure would pose a serious risk to an important commercial interest and that the benefits of confidentiality outweigh the open court principle.

The only supporting evidence was an affidavit from counsel asserting that certain documents contained proprietary commercial information, but the affidavit relied on belief and unsupported assertions contrary to subrule 39.01(4) and the best evidence rule.

The court found insufficient evidence of a real and substantial risk to commercial interests and declined to give weight to the contested statements.

The motion for a sealing order was dismissed.

In a civil action alleging negligent investment advice and related wrongs, the moving defendants sought directions under Rule 34.14 of the Rules of Civil Procedure following an adjourned examination for discovery of the plaintiff.

They argued that the examination had been improperly interrupted by excessive objections and instructions not to answer by opposing counsel.

After reviewing the transcript, the court found that although a number of objections had been raised, they did not amount to an abuse of the discovery process.

While the court criticized two instances of uncivil and sarcastic conduct by counsel during the examination, it concluded the examination had not been rendered futile and could continue rather than being restarted.

Costs were awarded to the moving defendants on a partial indemnity basis.

The plaintiff brought a motion under Rule 60.12 of the Rules of Civil Procedure seeking to strike the defendants’ statement of defence for failure to comply with a consent order requiring production of extensive documents and answers to refusals arising from discovery.

Evidence showed the defendants produced only eight irrelevant invoices and had not conducted a search to comply with the order.

On cross‑examination the individual defendant admitted the searches referenced in his affidavit were conducted earlier and not for the purpose of complying with the consent order, and that potentially relevant documents may exist with the company’s accountant and bookkeeper.

The court found the defendants had effectively done nothing to comply and criticized the affidavit evidence as clearly erroneous under oath.

However, the court declined to immediately strike the defence and instead granted a final opportunity to comply within 30 days, coupled with substantial indemnity costs and a security for costs requirement.

The moving parties sought an order requiring the plaintiffs by counterclaim to post security for costs under Rule 56.01(1) of the Rules of Civil Procedure.

The responding parties included an individual residing outside Ontario and a corporation alleged to lack sufficient Ontario assets, and the moving parties also argued the counterclaim was frivolous and vexatious.

The court held it was unnecessary to determine those grounds because the counterclaim was closely connected to the issues in the main action, particularly the claim for rescission of a share purchase agreement.

The success of the main action and the counterclaim depended on the same factual and credibility issues.

In these circumstances, security for costs should not be ordered.

The defendant brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside portions of an order granting the plaintiff leave to issue a writ of seizure and sale and notices of garnishment to enforce a judgment more than six years old.

The order had been obtained without notice.

The court held that the motions judge had discretion to proceed without notice given concerns that notice could allow the judgment debtor to rearrange assets.

Applying the test for leave under Rules 60.07(2) and 60.08(2), the court found the judgment creditor adequately explained the delay in enforcement and had not waived rights under the judgment.

The defendant failed to demonstrate detrimental reliance arising from the delay.

The motion to set aside the order was dismissed and the enforcement mechanisms remained in force.

In a wrongful dismissal action brought by a former general counsel, the plaintiff moved to set aside a sealing order previously obtained by the defendant without notice.

The defendant had sought the sealing order on the basis that the draft statement of claim disclosed confidential solicitor-client communications.

The parties later agreed that the sealing order should be set aside after the defendant acknowledged that similar allegations had already been made in other unsealed pleadings forming part of the public record.

The court found that the defendant ought not to have brought the original sealing motion given the existence of those pleadings.

Costs of the motion were awarded to the plaintiff on a partial indemnity basis.

A defendant brought a motion for security for costs under r. 56.01(1)(a), (d), and (e) of the Rules of Civil Procedure in an action by an estate seeking recovery of funds secured by a mortgage.

The moving party argued that the estate trustee ordinarily resided outside Ontario, that the trustee was a nominal plaintiff without assets in Ontario, and that the action was frivolous because it was statute-barred.

The court held that an executor cannot be personally ordered to post security for costs and that the estate possessed an asset in Ontario in the form of the mortgage.

The court further found that a payment toward the principal restarted the limitation period under s. 23(1) of the Real Property Limitations Act.

The motion for security for costs was therefore dismissed.