A.D.K. MacKenzie

The plaintiff appealed a Small Claims Court decision that awarded it half of its claim for unpaid consulting fees related to SR&ED tax credit applications.

The trial judge had 'split the difference' without making specific findings of breach of contract or negligence, citing a lack of evidence on industry standards.

The Divisional Court allowed the appeal, finding that the trial judge's disposition lacked an evidentiary foundation, and ordered a new trial.

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.

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.

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.

The appellant appealed a Small Claims Court costs order of $7,500, arguing it exceeded the 15% limit prescribed by section 29 of the Courts of Justice Act.

The total claims against the remaining respondents at trial were $20,319.

The Divisional Court found that the trial judge erred by exceeding the statutory limit without making a finding of unreasonable behaviour to trigger the exception.

The costs award was amended to $3,000.

The court declined to interfere with the trial judge's discretion regarding previous costs orders.

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.

Following the dismissal of the plaintiffs' action on a summary judgment motion, the successful defendant sought partial indemnity costs of $42,469.53.

The plaintiffs opposed the costs award, arguing that special circumstances justified denying costs to the defendant.

The court rejected the plaintiffs' arguments, finding no unreasonable conduct by the defendant.

The court reduced the claimed fees slightly due to some duplication of work and awarded the defendant $29,000 in fees, plus HST and $6,650 in disbursements, subject to clarification on a potential setoff claimed by the plaintiffs.

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 moving insurer sought summary judgment dismissing an underinsured motorist claim arising from a Florida motor vehicle accident.

The responding insureds had settled the Florida action for US$300,000 despite the tortfeasor's US$1,000,000 policy limits, and then sought recovery under the OPCF 44R Family Protection Endorsement.

The court held that the insureds were not entitled to rely on an unsupported assertion of the tortfeasor insurer's potential insolvency where they had not conducted due diligence to determine whether the policy limits were unavailable at the time of settlement.

Applying Rule 20 and the governing underinsurance authorities, the court found no genuine issue requiring a trial and dismissed the action.

The plaintiff employee brought a motion for a determination of law regarding the enforceability of a termination clause in his fixed-term employment contract, and a motion for summary judgment for damages for wrongful dismissal.

The court found the termination clause to be ambiguous regarding the continuation of benefits and whether the amounts paid were exhaustive, rendering it unenforceable and triggering the common law entitlement to reasonable notice.

However, the court declined to grant summary judgment for the balance of the fixed term, finding that a genuine issue for trial existed regarding the appropriate reasonable notice period and the plaintiff's duty to mitigate.

The court ordered a mini-trial under Rule 20.04(2.2) to hear oral evidence on these issues.

The applicant sought costs on a full recovery basis for three motions, arguing the respondent acted in bad faith and unreasonably by failing to provide financial disclosure and thwarting a settlement conference.

The court rejected the respondent's arguments that his behaviour was reasonable and that costs should be deferred.

Finding the respondent's conduct warranted full recovery, the court awarded the applicant $22,000 in costs, to be paid from the respondent's share of the matrimonial home proceeds.

The plaintiff moved for judgment on an accepted offer to settle, seeking a determination on the applicable prejudgment interest rate.

Shortly before the offer was accepted, an amendment to the Insurance Act came into force, reducing the prejudgment interest rate for non-pecuniary damages.

The plaintiff argued the amendment was substantive and did not apply retroactively, while the defendants argued it was procedural and did apply.

The court held that the amendment to the calculation of prejudgment interest was procedural in nature and therefore applied retroactively, resulting in the lower interest rate being applied to the settlement amount.

The plaintiff sought costs thrown away after the defendant failed to attend a scheduled examination for discovery.

The defendant argued that preparation time was not wasted as it could be used for the rescheduled examination, and that counsel should not have attended because notice of non-attendance was given.

The court discounted the preparation time slightly but allowed the attendance costs, noting it was appropriate to obtain a certificate of non-attendance.

The court awarded the plaintiff $1,446.40 in costs thrown away.

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.

Following the quashing of the defendant's appeals, the plaintiff sought costs on a substantial indemnity basis, arguing the defendant's conduct constituted an abuse of process.

The court reviewed the standard for elevated costs and found the defendant's conduct was not reprehensible, scandalous, or outrageous.

The court awarded costs to the plaintiff on a partial indemnity scale, fixed at $6,000.

The respondent husband sought leave to appeal an interim order requiring him to pay retroactive spousal support of $25,894 per month.

He argued there was good reason to doubt the correctness of the order because the motion judge failed to consider the tax implications of retroactive support, which might not be deductible.

The Divisional Court dismissed the motion for leave, finding that the interim nature of the order meant the trial judge retained discretion to adjust the support amount upwards or downwards to address any unfair tax consequences.

The appellant, Day & Ross Inc., appealed a Small Claims Court judgment ordering it to pay $18,100 to the respondent, a factoring company that purchased invoices from a motor carrier.

Day & Ross had withheld payment, claiming equitable set-off for a spoiled load of cauliflower that it had paid the shipper for.

The Divisional Court dismissed the appeal, upholding the trial judge's findings that Day & Ross acted as a load broker with no legal obligation to pay the shipper, that there was no implied assignment of the shipper's claim, and that equitable set-off did not apply.

The plaintiff brought a motion to dismiss the defendants' appeal from orders setting aside a certificate of stay and directing the enforcement of a writ of possession for a property.

The defendants had failed to pay rent under a lease agreement tied to an uncompleted purchase and sale transaction.

The court found that the orders appealed from were not stayed by the filing of a notice of appeal, as they were not orders under the Residential Tenancies Act.

The court also concluded that the appeals were manifestly devoid of merit and quashed them, directing the sheriff to enforce the writ of possession.

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 applicants moved for leave to appeal a costs order to the Divisional Court.

The underlying order dismissed a motion to set aside a $1.2 million judgment and awarded substantial indemnity costs against the respondent, but denied the applicants' request for costs payable personally by the respondent's lawyer.

The court held that the costs order against the non-party lawyer was part of the final judgment and could not be severed.

Therefore, the Divisional Court lacked jurisdiction to hear the appeal, as appeals of final orders over the monetary limit lie to the Court of Appeal.