A.D.K. MacKenzie

Following a successful motion by former counsel for a charging order over settlement funds, the court addressed the costs of that motion.

The former counsel sought substantial indemnity costs, arguing the plaintiff unreasonably opposed the charging order and complicated a straightforward motion.

The plaintiff argued its conduct was reasonable and that only modest costs should be awarded.

The court held that the plaintiff’s conduct did not warrant substantial indemnity costs but justified partial indemnity costs.

Costs were therefore fixed at $7,994.11 payable by the plaintiff to former counsel.

Following a successful discovery motion compelling the plaintiff to answer outstanding undertakings and pay the costs of obtaining relevant documents, the court addressed disputes regarding the form of the resulting order and the costs of the motion.

The plaintiff argued that certain undertakings, including production of a recent income tax return, should not be included in the order, but the court rejected that position and confirmed the order should reflect the undertakings as set out in the motion materials.

The defendant sought substantial indemnity costs of the motion, while the plaintiff argued the motion was straightforward and that the time claimed by defence counsel was excessive.

Applying Rule 57.01(1) of the Rules of Civil Procedure and considering reasonable expectations of the losing party, the court awarded partial indemnity costs in a reduced amount.

Costs were fixed at $4,800 payable by the plaintiff within 30 days.

The defendants sought costs following a successful motion for security for costs.

The court had previously ordered the plaintiff to post security for costs and later staged payment of that amount.

On the costs issue, the defendants requested $3,500 based on partial indemnity fees and disbursements, while the plaintiff argued each party should bear their own costs or that only a nominal award should be granted.

The court considered the submissions and the governing principles under s. 131(1) of the Courts of Justice Act and r. 5.01(1) of the Rules of Civil Procedure.

The court awarded partial indemnity costs of $2,400 all-inclusive to the defendants.

Following a prior order granting security for costs to certain defendants, the court addressed how the payment should be structured.

The defendants sought payment of the full security amount in a single lump sum within 45 days, while the plaintiff proposed staged payments tied to litigation milestones.

The court accepted the plaintiff’s proposal, finding that staging the payments appropriately balanced protection of the defendants’ anticipated costs with access to justice for the plaintiff.

The order required the security for costs amount to be paid in tranches corresponding to discovery, mediation, and setting the action down for trial.

The defendants brought a motion under Rule 56.01 of the Rules of Civil Procedure seeking security for costs against a non‑resident plaintiff who resided in California in a personal injury action arising from a motor vehicle accident in Ontario.

The plaintiff argued that her claim had a strong prospect of success and relied on a litigation risk insurance policy to demonstrate the availability of funds to satisfy a potential costs award.

The court held that the plaintiff failed to provide affidavit evidence establishing impecuniosity or demonstrating that security would prevent her from pursuing the action.

The court further found that the insurance policy did not constitute a sufficient asset within Ontario accessible to the defendants for enforcement of a costs award.

As the plaintiff failed to discharge her evidentiary burden, the court ordered security for costs.

The respondent sought costs following a successful motion regarding child support for a child taking a gap year.

The respondent had served an offer to settle that was more advantageous to the applicant than the final order.

The court accepted the respondent's submissions, applied the costs consequences of Rule 49.10, and awarded the respondent costs fixed at $12,000 on a substantial indemnity basis.

The accused applied for a stay of proceedings under s. 24(1) of the Charter alleging breach of the right to be tried within a reasonable time under s. 11(b).

They were charged with cocaine trafficking offences under the Controlled Drugs and Substances Act and faced a projected delay of over 50 months from charge to the anticipated completion of trial.

The court applied the framework from R. v. Morin, assessing the length of delay, waiver, reasons for delay, and prejudice to the accused.

Significant portions of the delay were attributed to the Crown’s failure to provide timely disclosure and inadequate case management.

The court concluded that the applicants’ s. 11(b) rights were breached and that a stay of proceedings was the appropriate remedy.

The Crown appealed a trial acquittal on a charge of sexual assault, arguing the trial judge erred by failing to properly consider the complainant’s evidence, by finding no sexual assault occurred, and by providing insufficient reasons.

The appeal court examined whether the trial judge correctly applied the credibility framework in R. v. W.(D.) and whether the reasons for acquittal were legally sufficient.

The court held that, read as a whole, the trial judge’s analysis demonstrated reliance on the second branch of the W.(D.) framework and properly rejected the complainant’s evidence as unreliable.

The reasons sufficiently explained the basis for reasonable doubt and did not disclose a reversible error of law.

The acquittal was therefore upheld.

A contractor sued a municipal owner after being terminated from a major civic construction project shortly before substantial completion.

The owner alleged the contractor was in default for failing to meet milestones and failing to comply with scheduling and change directives.

The court held that even if breaches occurred, they did not amount to a fundamental breach justifying termination, particularly where the project was approximately 95–98% complete and delay damages could be compensated in money.

The court further found the owner had compromised the consultant’s contractual role of impartiality by directing the consultant’s notice of default and failed to act in good faith under the dispute resolution provisions.

The termination was therefore wrongful and invalid.

In the liability phase of a civil trial arising from a dispute between a construction contractor and a municipality, the court determined liability on the contractor’s claim and the municipality’s counterclaims.

The contractor succeeded on its claim and on its defence to the counterclaims.

The municipality’s counterclaims were dismissed.

The court indicated that detailed reasons would follow and directed the parties to provide written submissions regarding costs of the trial phase.

In the context of an ongoing shareholder dispute and oppression proceedings concerning car dealerships, the parties jointly sought directions on the appropriate sales process to separate the dealership operations from the litigation in order to preserve value.

One group of shareholders proposed an asset sale of the dealerships, while the other proposed a share sale.

The court considered the impending deadline imposed by the common lender, which had threatened to enforce its security if the dealerships were not separated from the dispute by a fixed date.

Given the urgency and the practical realities of completing a transaction quickly, the court held that a share sale was the most efficient and time-sensitive method to effect the separation.

The court therefore approved the proposed share-sale process.

The appellant appealed impaired care or control and “over 80” care or control convictions from the Ontario Court of Justice.

The appellant argued that police breached his s. 10(b) Charter right to counsel by failing to facilitate contact with his named counsel after he requested a specific lawyer.

The trial judge found a breach but admitted the breath evidence under s. 24(2).

The summary conviction appeal court held that the police made no effort to facilitate contact with counsel of choice and that the breath technician’s later administration of the right to counsel could not cure the earlier breach.

The trial judge therefore erred in law in concluding the breach was saved, and the conviction could not stand.

Following an urgent family law motion in which the applicant successfully obtained an order requiring the respondent to release the child for return to the United Kingdom pursuant to an earlier court endorsement, the court addressed the issue of costs.

The applicant sought costs on a full indemnity basis under Rule 24(8) of the Family Law Rules, alleging the respondent acted in bad faith by refusing to comply with the prior order.

The court held that although the respondent intentionally breached the earlier endorsement, the breach was motivated by the child’s stated wish not to return to the United Kingdom and did not constitute bad faith.

Applying the factors under Rule 24(11), the court awarded partial indemnity costs to the successful applicant.

The defendant municipality brought a motion under Rule 31.11 seeking to read in discovery evidence of subcontractors in a construction dispute involving lien claimants.

After issuing reasons dismissing the motion, the court issued a supplementary endorsement addressing reply submissions that had not initially come to the judge’s attention due to an administrative issue.

The moving party argued that s. 15 of the Ontario Evidence Act permitted the use of discovery evidence of non-adverse parties against both subcontractors and the general contractor.

The court rejected that interpretation, holding that it would undermine the wording of Rule 31.11 limiting read‑ins to evidence against the adverse party.

The court accepted the reasoning in Cain v. Peterson as governing authority and affirmed dismissal of the motion.

The defendant municipality brought a motion seeking leave under Rule 31.11(1) of the Rules of Civil Procedure to read into evidence at trial excerpts from examinations for discovery of subcontractor lien claimants.

The motion arose in the context of a construction dispute and lien action concerning termination of a construction contract.

The responding party argued that discovery evidence given by one party cannot be read in against a different party in a multi‑party action.

The court held that the wording of Rule 31.11(1), specifically the use of the term “the adverse party,” restricts read‑in evidence to use against the party who provided it on discovery.

The motion was dismissed.

During a Trial Management Conference in a construction lien dispute, sub‑trade lien claimants raised concerns that the municipality’s defence and counterclaim lacked sufficient particulars regarding alleged deficiencies and delays attributed to various sub‑trades.

The court considered the purpose of particulars in civil proceedings, namely to define issues, prevent surprise, and facilitate trial preparation.

Although the municipality argued that extensive disclosure had been provided during discovery, the court held that the information must be presented coherently and with sufficient specificity.

The municipality was ordered to provide written particulars detailing the alleged deficiencies and delays, even where costs had not yet been incurred.

Following the dismissal of the plaintiff’s motion to amend a statement of claim to substitute named defendants for John/Jane Doe defendants, the court addressed costs between the plaintiff and one proposed defendant.

The proposed defendant sought partial indemnity costs after successfully opposing the motion.

The plaintiff challenged several components of the claimed costs, including preparation of a factum, travel time, and the total hours claimed, and argued that the interests of the proposed defendants were identical such that separate costs should not be awarded.

The court rejected those submissions, finding the proposed defendants’ interests were not the same and that separate representation was appropriate.

The court fixed fair and reasonable costs payable by the plaintiff.

Following a prior motion and cross‑motion concerning discovery sequencing, leave to conduct discoveries, and a site inspection under the Construction Lien Act and the Rules of Civil Procedure, the court addressed the issue of costs.

The plaintiff argued it was entirely successful and sought substantial indemnity costs based on alleged obstructive conduct by the defendant.

The defendant asserted its cross‑motion was successful and that the plaintiff’s conduct necessitated the motion.

The court accepted the plaintiff’s position that the defendant’s submissions attempted to re‑litigate issues already determined.

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

The plaintiff in a construction lien action sought leave to conduct examinations for discovery and a site inspection after the action had been set down for trial in order to preserve its lien within the statutory time limit.

The defendant opposed the motion and brought a cross‑motion concerning the sequencing of discoveries and payment of copying costs for productions.

The court considered s. 67 of the Construction Lien Act and Rule 48.04 governing interlocutory steps after an action is set down for trial.

The court accepted that the trial record had been filed solely to maintain the lien and that the plaintiff had not abandoned its intention to conduct discovery.

Leave was granted for discoveries and a site inspection, with sequencing ordered and copying cost issues reserved.

The plaintiff sought leave under s. 67(2) of the Construction Lien Act and Rule 48.04 of the Rules of Civil Procedure to conduct examinations for discovery in a construction lien action.

The court granted leave and directed that the defendant conduct its discovery of the plaintiff first.

The court also ordered a site inspection of the defendant’s premises and established a timetable for the delivery of affidavits of documents, Scott Schedules, and completion of examinations for discovery.

Costs of the motions were reserved for written submissions.