Legal Blog: Civil Litigation
Bramer v. Toronto Lawn Tennis Club 2017 Ont SCJ
Applicant brought an application for remedies relating to his membership in the respondent club. The Club moved to strike paragraphs in the affidavit on grounds that it contained argument, used information and belief for contested facts, and referenced material that was subject to privilege. The motions judge held that the general rule to allow the judge hearing the application to make those determinations applied in this case and dismissed the motion.Continue Reading >
Singh v. Concepts Plastics Ltd. 2016 Ont CA
Employees, who were claiming wrongful dismissal, brought motion for summary judgment within the Simplified Rules. Issues involved credibility, constructive dismissal, and mitigation. Although, under the ordinary Rules, judges can make decisions based on conflicting evidence, under the Simplified Rules, opposing parties cannot cross-examine on affidavits and cannot examine a non-affiant witness on the motion. The employer argued, and the Court agreed, that if there is significant conflicting evidence on issues confronting a motions judge, summary judgment is not appropriate under Simplified Rules.Continue Reading >
AE Hospitality Ltd. v. George 2017 Ont SCJ (Master)
Lawyer in Greece gave report on assets being hidden; client in Ontario swore affidavit relying on that report. Court ruled that the defendants were entitled to the lawyer’s findings, opinions, and conclusions and his retainer. The lawyer was not required to produce his internal drafts or any draft reports because they were subject to litigation privilege and there was no foundation to support a reasonable suspicion that the lawyer was improperly influenced in his report. Another expert was examined and undertook to give certain information. That expert then attempted to withdraw the undertaking. The court held that he was not allowed to do so. Once an undertaking, always an undertaking.Continue Reading >
Brake v. PJ-MR2 Restaurant Inc. 2017 Ont CA
Employee was constructively dismissed because it was unreasonable to have expected employee to accept a demotion. The judge awarded 20 months’ notice for statutory benefits and common law notice. Employer wanted earnings from the employee deducted from the damages, but the court refused to do so for the following reasons:
- Employment insurance benefits are not to be deducted.
- Income earned during the statutory entitlement period is not to be deducted. These benefits are to be paid regardless whether employee subsequently works or not.
- Employer has the onus to show that income earned during the notice period was earned after the statutory entitlement period.
- If employee was working a part-time job before being terminated, then income from a part-time job after termination is not mitigation of the full-time job that had been terminated.
- The minority went so far as to say that if income came from a job substantially inferior to the job that had been terminated, then that income does not reduce damages. The majority disagreed. Continue Reading >
Mitchell v. Lewis 2016 Ont CA
Pleadings motion. Although a corporate veil can be pierced in cases involving sham corporations, that remedy is not limited to sham corporations (i.e. incorporated for an illegal, fraudulent, or improper purpose); it can also be pierced if, when incorporated, those in control expressly direct wrongful things to be done. The courts will disregard a separate legal personality of a corporate entity if it is completely dominated and controlled and being used as a shield for fraudulent or improper conduct.Continue Reading >
Evoke Solutions Inc. v. Chive Inc. 2017 Ont SCJ
Plaintiff sued for $116,000, but was allowed to do so under the Simplified Rules. The judge awarded about $46,000 including interest. The plaintiff had offered to settle initially for $35,000 plus costs and later for $20,000 plus costs. The plaintiff was presumptively entitled to its costs on a partial indemnity basis to the date of the first offer and on a substantial indemnity basis thereafter. The plaintiff sought $87,000 in costs. The defendant suggested $23,000, half of the amount awarded. The judge acknowledged that the simplified procedure was meant to be cost-effective and was not intended to be as expensive as a trial by ordinary procedure. The judge awarded $50,000 including disbursements and HST.Continue Reading >
Responsive Brands Inc. v. 2139233 Ontario Ltd. 2017 SCJ (Master)
In a motion for summary judgment, if the parties cannot agree, the moving parties’ witnesses are to be cross-examined first and then, regardless whether there are undertakings or refusals outstanding, the cross-examination of the responding party’s witnesses will take place.Continue Reading >
Sims v. Zaitlen 2017 Ont SCJ
A case management judge has jurisdiction to refuse to allow a party to bring a motion for summary judgment. In making the decision, the judge must determine whether the motion (or mini-trial) would provide a fair and just adjudication of the dispute in a timely, affordable, and proportionate procedure.Continue Reading >