Todd Robinson

The moving party, Onespace Unlimited Inc., brought a motion to strike portions of a reply affidavit sworn by the responding party's principal witness in advance of a summary trial.

The moving party argued the impugned statements contained improper argument, opinion evidence from a lay witness, and legal conclusions.

The court granted the motion in part, striking statements that constituted improper argument or unqualified expert opinion, while retaining statements that were factual observations or inextricably tied to the witness's overall impressions.

The plaintiffs brought a motion to amend their statement of claim to add a claim for punitive damages and allegations of spoliation of evidence following a pedestrian motor vehicle accident allegedly involving street racing.

The court granted leave to add the punitive damages claim and spoliation allegations concerning the sale of a vehicle and replacement of an engine, finding them to be issues worthy of trial.

However, the court denied leave to add spoliation allegations regarding electronic communications and a failure to remain at the scene, citing a lack of factual foundation.

The plaintiff was partially successful on a motion to compel a further and better affidavit of documents and sought partial indemnity costs of $4,575.87.

The defendants argued for 50% of the claimed costs due to divided success.

The court rejected a strict mathematical reduction for divided success but noted the plaintiff's evidentiary failings on the unsuccessful relief.

Costs were fixed at $3,748.82 inclusive of disbursements and HST.

The plaintiff brought a motion for leave to issue a certificate of pending litigation (CPL) against the defendant's property, claiming specific performance of an alleged agreement of purchase and sale.

The defendant argued there was no binding agreement and raised the Statute of Frauds.

The court found triable issues regarding the real estate agent's authority to bind the defendant, whether the terms were agreed upon, and whether the Statute of Frauds was satisfied through written communications or part performance.

Balancing the equitable factors, the court concluded the potential prejudice to the plaintiff outweighed the presumptive prejudice to the defendant and granted leave to issue the CPL.

The self-represented plaintiff sought leave to amend his statement of claim in a solicitor negligence action to add new allegations, add a new defendant lawyer, and increase his damages claim to $100 million.

The court granted leave to amend the claim against the existing defendants, finding a triable issue on whether the new allegations were statute-barred and that they disclosed a reasonable cause of action.

However, the court denied leave to add the new defendant, as the claims against her were clearly statute-barred and no reasonable cause of action was pleaded.

The plaintiff was permitted to increase the damages claim and continue in the ordinary procedure.

The plaintiff's counsel brought a motion to be removed as lawyers of record and for a charging order for legal fees and disbursements.

The plaintiff opposed the motion, citing prejudice due to an upcoming trial.

The court granted the removal order, finding an irreparable breakdown in the solicitor-client relationship that outweighed the potential prejudice to the plaintiff.

However, the court dismissed the request for a charging order, as counsel failed to provide evidence of the specific retainer terms or demonstrate that their work was instrumental to any recovery.

The plaintiff, suing his former lawyers for professional negligence and breach of contract, brought a motion under Rule 30.06 for a further and better affidavit of documents.

The plaintiff sought production of correspondence, legal billing records, internal law firm documents, and settlement communications with insurers.

The court granted the motion in part, ordering the defendants to produce documents relating to legal billing and accounting, as well as communications with insurers regarding the settlement of the tort and accident benefits claims, finding these relevant to the pleadings.

The request for internal documents and other correspondence was dismissed for lack of evidence.

The plaintiffs brought a motion to compel the defendants to attend mandatory mediation, attend examinations for discovery, and answer undertakings and questions taken under advisement.

The defendants had repeatedly failed to attend scheduled mediations and discoveries.

The court ordered deadlines for mediation, affidavits of documents, and discovery attendance.

The court also ordered a deadline for answering undertakings, finding that although the 60-day period under Rule 31.07(1) had not yet expired, the defendants' conduct warranted an order.

The court declined to compel an answer to a question taken under advisement regarding an insurance adjuster's investigation, finding the request premature and the evidentiary record insufficient to assess relevance or litigation privilege.

Costs thrown away were fixed at $7,000 on a substantial indemnity basis.

The plaintiffs in four related fraud actions brought motions seeking various procedural relief against the defendant, an undischarged bankrupt, including validation of service, authorization for future email service, and the fixing of a timetable.

The court dispensed with mandatory mediation on consent but declined to issue a blanket order for email service or to fix a timetable, finding such relief premature.

Service of the statements of claim on the defendant was validated effective the date of the motion hearing.

Relief regarding a co-defendant was dismissed due to insufficient evidence of attempted service.

The plaintiff brought a motion for leave to issue a certificate of pending litigation (CPL) over a Toronto condominium legally owned by his ex-fiancée, the defendant.

The plaintiff claimed beneficial ownership based on an oral agreement and wire transfers he alleged were for the property's purchase.

The court found the plaintiff established a triable issue for a constructive trust.

However, the court dismissed the motion, concluding that the equities favoured the defendant because the property was an investment, not unique to the plaintiff, and damages would be an adequate remedy.

Costs were awarded to the defendant.

The self-represented defendant in a construction lien action moved to set aside a notice of discontinuance of his counterclaim, which had been filed by his former counsel over two years prior, and to compel further documentary production from the plaintiff.

The plaintiff opposed the motion and sought leave to bring a motion for summary judgment.

The court dismissed the defendant's motion, finding no inadvertence, mistake, or exceptional circumstances to justify setting aside the discontinuance, and concluding the requested documents were irrelevant to the lien action.

The court granted the plaintiff leave to bring a summary judgment motion, finding it would expedite the resolution of the remaining issues.

The plaintiff moved to strike the self-represented defendant's statement of defence and counterclaim due to his failure to comply with court orders, including failing to serve affidavit evidence-in-chief and refusing to answer discovery questions.

The court struck the defendant's set-off defence and counterclaim, finding he had failed to pursue them meaningfully.

However, the court declined to strike the statement of defence entirely, granting the defendant one final peremptory deadline to serve his trial evidence to allow him to defend the plaintiff's claim on its merits.

The applicant and respondents are sisters who jointly own three properties as tenants in common.

Following a prior order that the properties be sold with no right of first refusal, the parties could not agree on the sale process.

The Master determined the listing agents, the process for setting list prices, the duration of listings, the coordination of pre-listing cleanup and repairs, and established a blind bidding process to ensure fairness in the event one of the co-owners elected to bid on the properties.

Following a successful motion by the plaintiff for a status hearing to prevent the action from being dismissed for delay, the plaintiff sought partial indemnity costs against the only opposing defendant.

The court found that while the defendant's opposition was not unreasonable, he was not insulated from costs.

The court awarded the plaintiff $6,000 in costs, payable in the cause, reflecting the additional expense incurred due to the defendant's opposition.

Following a successful motion by the plaintiff to extend the time for service of its statements of claim in two lien actions, the plaintiff sought partial indemnity costs.

The defendant argued that costs are not typically awarded to a party seeking an indulgence.

The court held that there is no general rule disentitling a party seeking an indulgence from recovering costs, especially where the opposing party's conduct unnecessarily increased costs.

The court awarded the plaintiff $11,000 in partial indemnity costs.

The plaintiffs obtained a Mareva injunction against the defendant, Dr. Al Jabri, requiring him to disclose his worldwide assets and submit to cross-examination.

During the cross-examination, disputes arose regarding the scope of permissible questions, particularly concerning assets held prior to the Mareva order, assets gifted to his son, and assets transferred to others.

The plaintiffs brought a motion for directions.

The court held that the plaintiffs are entitled to examine the defendant on former assets, gifted assets, and transferred assets to test whether he retains any continuing interest in or control over them, as such assets would be captured by the Mareva order.

The court provided a framework for the permissible scope of cross-examination and ordered the defendant to re-attend.

The moving party contractor sought to declare two construction liens preserved by the responding party sub-subcontractor as expired.

The central issue was the interpretation of the transition provisions in s. 87.3 of the Construction Act, specifically whether the former 45-day or current 60-day lien preservation period applied when the prime contract was entered into before July 1, 2018, but the subcontracts were entered into after.

The court held that the legislative scheme applies consistently to all persons involved in the same improvement based on the date of the prime contract.

Consequently, the former 45-day period applied, the liens were declared expired, and the posted security was ordered returned.

The plaintiff moved for a status hearing under Rule 48.14(5) to extend the set down deadline in an action regarding alleged construction defects in a custom home.

Only one defendant opposed the motion.

The Master found that the plaintiff provided an acceptable explanation for the litigation delay, noting that much of it was due to accommodating the defendants' requests.

The Master also found no evidence of non-compensable prejudice to the defendants.

The motion was granted, and a timetable was set for the remaining interlocutory steps.

The plaintiff brought motions to extend the time for service of its statements of claim in two construction lien actions, and to validate service or permit substituted service.

The plaintiff had consciously decided not to serve the claims within the 90-day statutory period, ostensibly for financial reasons, and later attempted service by emailing the defendant's lawyer.

The court found the plaintiff's explanation for the delay inadequate and the email service invalid.

However, considering the lack of demonstrable prejudice to the defendant and the defendant's own complacency after becoming aware of the liens, the court granted the extensions and dispensed with the requirement for further service.

The plaintiff subcontractor brought a motion for summary judgment for interest and costs on its construction lien claim against the defendant contractor.

The principal amount of the lien was agreed upon and paid from security in court.

The defendant argued it was not liable for interest or costs due to an oral 'pay when paid' agreement, as it had not been fully paid by the third-party general contractor.

The court found no evidence of a 'pay when paid' agreement and held the defendant breached the subcontract by failing to pay the plaintiff.

The court awarded the plaintiff pre-judgment interest and costs, and granted the defendant contribution and indemnity for those costs against the third party.