Alan J. Davis

This decision addresses costs arising from two competing applications concerning land ownership between Aragon (Wellesley) Development (Ontario) Corporation and Piller Investments Limited.

While Aragon and Piller settled their costs, the court determined the costs payable by Piller to William Alexander Young and John David Dinsdale, who were participants in the original dispute.

The court awarded partial indemnity costs for the period Young and Dinsdale were represented by counsel, along with disbursements.

However, claims for costs for their time as self-represented litigants were denied, as they failed to demonstrate a loss of remunerative activity, consistent with established principles for self-represented litigants.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' claims for damages arising from construction on an adjacent property and a failed retaining wall, or alternatively, to transfer the action to Small Claims Court.

The plaintiffs claimed damages for interference with their home's use and enjoyment, including punitive and aggravated damages.

The court dismissed the defendants' motion, finding that genuine issues requiring a trial existed, particularly concerning punitive damages and the complex nature of the crossclaims.

The court emphasized that partial summary judgment is a "rare procedure" and that the motion did not meet the objectives of proportionality, timeliness, and affordability as outlined in *Hryniak* and *Butera*.

The corporate plaintiff sued for the return of a deposit on a failed real estate transaction.

The defendants counterclaimed and successfully moved before a Master for security for costs and leave to amend their counterclaim to add the plaintiff's principals as defendants.

The plaintiff and its principals appealed.

The Superior Court granted the appeal regarding security for costs, finding the Master erred by relying on speculation rather than evidence of the plaintiff's financial insufficiency.

The court dismissed the appeal regarding the amendment of pleadings, finding a tenable claim that the corporation acted as a bare trustee or agent for its principals.

A duplicative second action commenced by the defendants was dismissed.

The defendants brought a motion to dismiss the plaintiffs' action for inordinate delay and abuse of process, nearly 24 years after its commencement.

The plaintiffs attributed the delay to their various former counsel.

The court found the delay to be inordinate and inexcusable, with primary responsibility resting with the plaintiffs.

The presumed prejudice to the defendants due to the passage of time, faded memories, and loss of a witness was not rebutted, making a fair trial impossible.

The court also exercised its inherent jurisdiction to dismiss the action, finding the severe and aggravated delay, including breaches of court-ordered deadlines and a 7-year period of inactivity, amounted to an abuse of process.

The motion to dismiss was granted, and the action was dismissed.

Following a settlement of the principal amount in a long-standing construction contract dispute, the court conducted a "mini-trial" to determine the applicable pre-judgment interest rates on the settled funds and the award of costs.

The court found that $116,000 of the settlement, attributable to architect fees, was payable under the Construction Contract, thus attracting the contractually stipulated interest rate of prime plus 2%.

The remaining $30,300 for miscellaneous expenses was subject to the standard Courts of Justice Act interest rate due to insufficient evidence linking it to the contract.

The court awarded the plaintiff substantial costs, noting that while both parties contributed to the litigation's longevity, the plaintiff was entirely successful on the issues before the court and the defendant's evidentiary case was weak.