Judgment Released: December 16, 2010   Link to Judgment

In the context of discovery refusals, the questions must be relevant, proportional and pertain to the pleadings in the case.

Judgment Released: December 16, 2010   Link to Judgment

In declining to grant substantial indemnity costs under Rule 20.06 (a) following an unsuccessful summary-judgment motion, the Court noted that “it was certainly not obvious to me, as I sat down to prepare my written reasons after three days of oral submissions, that the City’s motion for judgment had no chance of success.”

Judgment Released: November 1, 2010  Link to Judgment

Following a “somewhat technical” but not “complex” procedural motion to stay 192 separate assessments and actions by which the plaintiff sought compensation for work allegedly done within his legal practice, the successful defendants sought costs of $47,289.71.   The Court held the claim was too high on its face and inconsistent with the principle of proportionality.   After analyzing the work performed, the Court awarded costs of $15,753.48 plus certain taxes.

Judgment Released: October 12, 2010  Link to Judgment

A motion was brought by new counsel to the Plaintiff to strike the action from the trial list because, among other reasons, the expert medical reports which were served before January 1, 2010, did “…not contain the information and documents now required by Rule 53.03(2.1) . . . and as a result they are probably inadmissible at trial and will have to be updated”. 

In dismissing the Plaintiff’s motion, the Court noted that Rule 53.03 contained no transition provisions, but found (contrary to the finding in Onex Corp. v. American Home Assurance  (2009), 100 O.R. (3d) 313 (S.C.J.) that rule 2.03 could not be used for transitional purposes) that if the absence of a transitional provision resulted in an injustice to a party, the purpose of Rule 2.03 is to address such an injustice.  The Court went on to find that compliance with the new requirements of Rule 53 have “flexibility” in respect of actions which included expert reports and were set down for trial prior to January 1, 2010:  “I agree that rule 53.03 is a procedural enactment and, therefore, the law generally requires that it apply retroactively. Nevertheless, as with most good legal principles, there are exceptions and so the retroactive application of rule 53.03 is not absolute. This can be seen within rule 53.03 itself which contains sufficient flexibility to respond to specific situations where relief from retroactivity is necessary for a just result: subrule 53.03 (2.2) contains the words, “unless the court orders otherwise”; subrule 53.03(3) speaks of, “except with leave of the trial judge”; and, subrule 53.03(4) provides that times may be extended or abridged by a pre-trial judge or the trial judge or “by the court, on motion.” Furthermore, parties have rule 2.03 which provides that “[t]he court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time.   I do not think it was contemplated that all actions (and there could be hundreds of them) involving expert reports that were set down for trial before the amendments to rule 53 would be struck from the trial list as not being in compliance with the new rule. If parties to such actions are unable to agree on a time schedule for the delivery of expert reports or other issues that go to their admissibility at trial, they may resort to the subrules of 53.03 that I have mentioned or to rule 2.03.”

Judgment Released: October 6, 2010   Link to Judgment

Two construction companies, FDM and FTD, formed a partnership. FDM sued FTD and two of its principals for FTM’s alleged share of the profits, and sought summary judgment.  The individual defendants sought partial summary judgment striking out the claim against them.

FTD defended the motion, claiming in an affidavit that FDM failed to fund a  joint venture as required and had already been paid what it was owed.  There was also no evidence that the accounting offered by FDM was binding on both partners. The court held it could not determine, on the evidence provided, that the plaintiff was absolutely entitled to its share of the money and so dismissed the plaintiff’s motion.

The premise of the claim against the individual defendants was that FDM was FTD’s subcontractor and that FTD’s principals owed trust obligations under the Construction Lien Act.  No evidence showed FDM to be a subcontractor, no contracts were offered to prove that proposition, and it would be contrary to the partnership agreement.  Since there was no basis for a trust claim under the Act, the sole source of liability pled, the motion was granted.

The court held FDM’s motion for summary judgment unreasonable and granted substantial indemnity costs of $7,000.