Todd Robinson

The defendants brought motions to set aside default judgments totaling over $315,000, which were granted after their Statements of Defence were struck for non-compliance with court orders and rules.

The court applied the five-factor test from *Mountain View Farms Ltd. v. McQueen* to determine if the interests of justice favored setting aside the judgments.

The court found that the defendants moved promptly, had an arguable defence, and would suffer significant prejudice if the judgments stood.

While the explanation for default was neutral, the court emphasized that striking a defence is a severe remedy and that the plaintiff could have made more effort to ensure the self-represented defendants were aware of their jeopardy.

The motions to set aside the default judgments and associated writs of seizure and sale were granted, with costs reserved.

The plaintiff, 2518358 Ontario Inc. ("Rise"), sought a Certificate of Pending Litigation (CPL) against a development property owned by the defendant, 3070 Ellesmere Developments Inc. ("Ellesmere").

Rise argued it had an interest in the land based on a joint venture agreement and alleged breaches by Ellesmere.

The court dismissed the motion for a CPL, finding that while there was a triable issue regarding Rise's claim to an interest in the property, the property was not unique, damages were easily calculable, and the balance of convenience did not favour granting the CPL.

The court also noted the existence of a prior construction lien registered by Rise, which served as an adequate alternative form of security, and that granting a CPL would subvert the purposes of the Construction Lien Act.

The appellant appealed a Master's decision to discharge a certificate of pending litigation (CPL).

The Master had discharged the CPL on the basis of the appellant's material non-disclosure of a "no registration" clause in the Agreement of Purchase and Sale (APS) when obtaining the CPL ex parte.

The appellate court upheld the Master's decision, finding no reversible error in the Master's application of the law regarding the duty of full and frank disclosure on ex parte motions.

The court affirmed that failure to make full and frank disclosure of a material fact is sufficient grounds to set aside an ex parte order.

The appellant, Earl Lewis, operating as The Recovery Board, appealed a judgment finding him jointly and severally liable for conversion of three vehicles.

The vehicles had been towed by Chris's Towing and Lewis was retained to register liens and issue notices of intention to sell.

The application judge found Lewis liable for conversion and awarded damages including HST.

The Court of Appeal upheld the finding of liability for conversion but reduced damages by eliminating the HST component, as the respondent had not incurred HST costs and ownership had changed before actual sales occurred.

The third party moved to dismiss the plaintiff's construction lien action due to the plaintiff's failure to comply with a prior order requiring it to pay $250,000 into court as security for costs.

The plaintiff, who was impecunious and no longer carrying on business, made no efforts to comply with the order.

The court granted the motion, ordering that the action be automatically dismissed in 30 days unless the plaintiff posts the required security and pays the outstanding costs award.

The applicant previously succeeded in an application for conversion and unjust enrichment against the respondents, including a principal towing company and its agent.

The court subsequently increased the damages award against the principal by 13% to account for taxes payable on the deemed forced sale of the converted vehicles.

The sole remaining issue was whether the agent was also liable for this 13% increase.

The court held that there was no principled basis to separate the agent's liability from that of the principal, finding the agent equally responsible for the full amount owing to the applicant.

Following a finding of liability for conversion and unjust enrichment, one of the respondents retained new counsel and indicated an intention to move to re-open the application under Rule 59.06.

The court requested written submissions on its jurisdiction to hear the intended motion.

The court held that because no formal order had yet been taken out, it was not functus officio and retained broad jurisdiction to change its judgment.

The court directed the respondent to schedule the motion to re-open before the same judge.

This endorsement addresses the calculation of damages for conversion and unjust enrichment, following a prior finding of liability against the respondents.

Specifically, it determines whether damages for conversion of three vehicles should be increased to include taxes.

The court ruled that damages owed by Atlantic Towing Inc. and Chris’s Towing Inc. should be increased by 13% to account for HST or RST, as a tax liability flows from the deemed forced sale due to conversion.

The total amount owed by these two respondents is $120,440.82.

The issue of Earl Lewis's liability for taxes and a proposed motion to reopen the decision were deferred for future consideration.

The applicant sought to vary a decision made under Rule 2.1.01 that dismissed a motion for leave to appeal a previous refusal of leave to appeal.

The court held that where a statute grants a right of appeal conditional upon leave, there is no appeal from a decision refusing leave on the merits.

As the Divisional Court lacked jurisdiction to grant the requested remedy, the motion to vary was dismissed pursuant to Rule 2.1.01 as having no chance of success.

The appellants appealed the dismissal of their solicitor negligence action, arguing the trial judge failed to consider the solicitor's duty to warn about the consequences of signing a mortgage discharge.

The Court of Appeal dismissed the appeal, noting that at trial, the appellants claimed they never met the solicitor, and their counsel conceded the action would fail if the trial judge found they had indeed signed the documents.

Because the trial judge accepted the solicitor's evidence that the meeting occurred, the duty to warn was not a live issue.

The plaintiff appealed a Master's order dismissing her motion to continue a certificate of pending litigation against a property now owned by the defendants.

The plaintiff alleged she was defrauded of the property through improper mortgages and sought to set aside the transfer as a fraudulent conveyance.

The Superior Court of Justice dismissed the appeal, finding no palpable or overriding error in the Master's conclusion that the plaintiff no longer had a reasonable claim to an interest in the property, as previous court decisions had already conclusively determined the property could properly be sold.

The court also upheld the Master's finding that the equities favoured the defendants.

The plaintiff brought a motion seeking to invalidate Full and Final Releases she signed and a Notice of Discontinuance against two former lawyers, alleging they acted contrary to her instructions or mistakenly.

The court found that a settlement agreement existed, and the lawyers had ostensible authority to effect it.

Considering factors for setting aside a settlement, including the significant delay by the plaintiff in challenging the settlement and the public policy favoring enforcement of settlements, the court dismissed the motion.

The appellant appealed a summary judgment dismissing its claim on a construction contract for an airport refurbishment.

The motion judge found that the respondent municipality was entitled to rely on a waiver clause signed by the appellant, which precluded compensation for delays or uncompleted work if the project was halted due to public concerns or funding withdrawal.

The Court of Appeal upheld the decision, finding ample evidence that public outcry and a superseding joint project triggered the waiver clause.

On a summary judgment motion in a construction tender dispute arising from an airport runway project, the court held that the parties entered into a binding contract for the full scope of work under the request for tender.

However, the plaintiff contractor's claim for damages for unperformed portions of the project was barred by a written compensation waiver covering delays, public concerns, and funding-related changes beyond the municipality's control.

The court also held that the damages claim was not proved under the incorporated contractual provisions and that the action was not barred by the basic limitation period in s. 4 of the Limitations Act, 2002.

Summary judgment was granted and the action was dismissed.

The defendant brought a motion for leave to appeal to the Divisional Court from a status hearing endorsement permitting the action to proceed on a timetable despite a 1.5‑year delay.

The moving party argued that the status hearing judge erred by proceeding without sworn affidavit evidence and by exercising discretion contrary to applicable case law.

The court reviewed the test for leave to appeal an interlocutory order under Rule 62.02(4) of the Rules of Civil Procedure and held that status hearings may properly proceed on oral submissions and do not necessarily require sworn evidence.

The court found no conflicting authority, no good reason to doubt the correctness of the earlier discretionary decision, and no issue of broader public importance.

Leave to appeal was therefore refused.

The appellant challenged a status hearing order dismissing his civil action for delay arising from real estate transactions and sought leave to appeal costs.

The Court of Appeal held that the status hearing judge correctly applied the rule 48.14(13) framework, under which the plaintiff bears the burden to provide an acceptable explanation for delay and show that the defendants would suffer no non-compensable prejudice if the action proceeded.

The court rejected the submission that the rule 24.01 dismissal test should govern status hearings, emphasizing that the two mechanisms are distinct.

It also upheld the finding that the moving party bore primary responsibility for the prolonged inactivity and that the deaths of two material witnesses created severe prejudice.

The appeal was dismissed and costs of $10,500 were awarded to the respondents.

The appellants appealed a motion judge's decision denying their request to amend their pleadings to add a new cause of action against the respondent town regarding building permit inspections and foundation suitability.

The Court of Appeal dismissed the appeal, finding ample evidence supported the motion judge's conclusion that the appellants discovered the new claim years earlier.

The Court also agreed that the town suffered actual prejudice due to the demolition of the premises and that the proposed amendment constituted a fundamentally different claim.