Alan Patrick Wymes

The defendants brought a motion to discharge a construction lien registered by Erbsville Electrical, which had remained unperfected for almost three years.

Erbsville Electrical removed the lien the day before the motion was heard.

The court held that Erbsville Electrical was responsible for the defendants' costs of the motion, as it was unreasonable to register a lien, take no steps to perfect it, and then refuse to pay the costs of its removal.

The court awarded partial indemnity costs of $750 plus HST against Erbsville Electrical, but declined to make it jointly and severally liable for costs ordered against other lien claimants.

The plaintiff settled a motor vehicle accident claim for $190,000 plus costs.

An assessment officer awarded $231,137.93 in costs, which a Superior Court judge reduced to $102,000 on appeal.

The plaintiff sought to appeal the judge's decision to the Court of Appeal.

The defendant moved to quash the appeal, arguing that leave to appeal was required under s. 133(b) of the Courts of Justice Act because the appeal related only to costs.

The Court of Appeal agreed, holding that an appeal from a Superior Court judge's decision reviewing a costs assessment is a final order relating to costs and requires leave to appeal to the Court of Appeal.

Following a successful appeal reducing a costs assessment, the court determined the appropriate costs of the appeal.

The moving parties had substantially reduced the costs awarded to the plaintiffs by the assessment officer through the application of the proportionality principle.

Applying the general rule that costs follow the event, the court awarded the successful appellants partial indemnity costs.

The costs of the appeal were fixed at $7,000 inclusive of HST and disbursements.

The appellants were permitted to set off this amount against the outstanding balance of costs payable to the plaintiff.

The plaintiffs in a motor vehicle negligence action brought a motion to strike portions of the statement of defence on the basis that it failed to plead material facts regarding damages as required by the Rules of Civil Procedure.

They also sought an order requiring the defendant to answer a list of written discovery questions.

The court held that the impugned pleadings sufficiently set out material facts relating to damages, particularly given that the defendant would not yet possess detailed knowledge of the plaintiff’s medical condition.

The court further found that the proposed written discovery questions constituted an improper and excessive use of the discovery process.

The motion was dismissed in its entirety.

Appeal from a Certificate of Assessment of Costs following settlement of a motor vehicle accident action.

The plaintiffs accepted a pre‑trial settlement of $190,000 plus costs to be assessed, after which an assessment officer awarded partial indemnity costs exceeding $231,000.

The defendants appealed, arguing that the assessment officer failed to properly apply Rules 57.01(1) and 58.06 of the Rules of Civil Procedure and failed to consider the principle of proportionality.

The court held that the assessment officer committed errors in principle by misdirecting himself regarding the applicable rules and by failing to address proportionality in light of the settlement amount.

The costs award was reduced to $102,000 inclusive of fees, HST, and disbursements.

Following a trial in which the plaintiff bank succeeded in obtaining judgment against one defendant for fraud and under a personal guarantee, the court addressed competing claims for costs.

The bank sought substantial indemnity costs exceeding $600,000, while certain defendants who successfully defended fraud allegations sought substantial indemnity costs for both trial and a prior Mareva injunction motion.

The court found that the bank had overstated and pursued broad allegations of fraud despite prior judicial warnings, unnecessarily lengthening the litigation.

Costs were therefore limited to partial indemnity and further reduced under Rule 57 for litigation conduct.

After applying equitable set‑off against costs awarded to two defendants, the court ordered one defendant to pay net costs to the bank.

The plaintiff sought costs after successfully defending two motions by the defendants that attempted to restrain her from filing further requests to admit.

The plaintiff claimed approximately $62,895 in legal fees and disbursements and had made a Rule 49 offer to settle costs for $33,000 all-inclusive.

The defendants argued the claim was disproportionate to the nature of the motions and proposed significantly lower amounts.

Applying the principles of fairness, reasonableness, and proportionality under the Rules of Civil Procedure, the court found the claimed time and assistant billing rate excessive.

Costs were reduced and fixed at $20,000 all-inclusive.

The applicant sought judicial review of a decision by the Workplace Safety and Insurance Appeals Tribunal regarding his entitlement to Future Economic Loss (FEL) and Non-Economic Loss (NEL) benefits.

The applicant suffered a workplace back injury and later a non-work-related motor vehicle accident.

The Tribunal found that the applicant was not totally disabled prior to the motor vehicle accident and upheld the 18% NEL award.

The Divisional Court dismissed the application, finding that the Tribunal's decisions were reasonable and fell within its specialized expertise.

The defendants brought a motion seeking to strike numerous requests to admit served by the plaintiff and to prohibit the plaintiff from serving further requests, alleging abuse of process and an attempt to circumvent the limits on oral discovery under Rule 31.02 of the Rules of Civil Procedure.

The court considered Rule 51 governing requests to admit and the jurisprudence addressing excessive or abusive use of such requests.

While some requests were imperfectly drafted, the court held that most were relevant and that the Rules impose no numerical limit on requests to admit so long as they are served more than 20 days before trial.

The circumstances did not approach the extreme situations in prior cases where restrictions were imposed.

The motion was dismissed and the defendants were expected to respond to the outstanding requests.

Following dismissal of a motion for an interlocutory injunction relating to alleged breaches of non‑competition and confidentiality obligations, the court determined costs.

The defendants sought substantial partial indemnity costs exceeding $93,000, while the plaintiff argued the amount was excessive and that costs should be in the cause.

The court reviewed principles governing costs under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, emphasizing reasonableness, proportionality, and the reasonable expectations of the paying party.

While finding the defendants substantially successful, the court held the claimed hours and staffing levels excessive and reduced the award.

Partial indemnity costs were fixed at $40,000 plus HST and disbursements, payable forthwith.

The plaintiff former employer moved for an interlocutory injunction to enforce non-competition and confidentiality clauses against a former employee who invented a specialized technology.

The court applied the heightened 'strong prima facie case' standard for restrictive covenants in employment contracts.

While the court found a strong prima facie case that the employee breached non-competition provisions, it dismissed the injunction because the plaintiff failed to demonstrate irreparable harm, as damages could be quantified.

However, the court granted a preservation order regarding the disputed technology and related electronic records.

The appellants appealed a trial judgment that found them liable for a $15,653 breach of contract committed by the main defendant, Nicholas Bulut, and awarded substantial indemnity costs against all defendants without hearing submissions.

The Divisional Court allowed the appeal, finding no legal basis in contract, corporate veil piercing, or unjust enrichment to hold the other defendants liable for Nicholas Bulut's breach.

The Court also set aside the trial judge's costs award due to a breach of procedural fairness and natural justice, as the trial judge refused to hear submissions.

The Court substituted its own costs order, awarding the appellants partial indemnity costs from the date of their Rule 49 offer to settle.

The defendant bank moved to quash the plaintiffs' appeal from a Master's order requiring the plaintiffs to pay $100,000 into court as security for costs.

The plaintiffs had appealed to the Divisional Court, arguing the order was effectively final because they were impecunious.

The court held that orders for security for costs are interlocutory, not final, and therefore the Divisional Court lacked jurisdiction.

The motion to quash the appeal was granted.

The appellants defaulted on a commercial mortgage, prompting the respondent mortgagee to issue a Notice of Sale and accept an offer to purchase the property.

The appellants subsequently obtained a higher offer and sought to enjoin the sale, arguing the Notice of Sale was defective and the accepted offer was improvident.

The application judge declined to enjoin the sale, and the sale closed before the appeal was heard.

The Court of Appeal dismissed the appeal, finding the Notice of Sale was reasonable and the mortgagee could not be restrained from exercising its power of sale after entering into a binding agreement in good faith.

The applicants sought leave to appeal an interim order that imposed strict terms on an adjournment, including paying $20,000 into court as security for damages and filing an undertaking.

The applicants argued the motions judge erred in exercising his discretion.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the order and that the issues were strictly between the parties and not of general importance.

The appellant appealed an order of the motions judge, which was based on the finding that the underlying action had been lying dormant since 1996.

The Court of Appeal reviewed new court material not available to the motions judge, which demonstrated the action was not dormant.

The Court set aside the order in the interests of justice, allowing the respondent to renew its motion with full consideration of the delay.

The appellant appealed a summary judgment granted in favour of the respondent bank for $32,796.01.

The appellant argued that her cross-motion to dismiss the bank's motion should have been granted due to the bank's failure to attend cross-examinations on its amended affidavit of documents.

The appellant conceded that summary judgment was properly granted based on the documentation eventually provided.

The Court of Appeal dismissed the appeal, finding no basis to set aside the judgment.

The court noted the bank's dilatory production but observed that the motion judge had already accounted for this by limiting prejudgment interest and denying the bank costs at first instance.

The appellant appealed a Master's decision refusing to stay an order for partial summary judgment requiring her to pay $126,500 owing on two promissory notes.

The Master had exercised his discretion under Rule 20.08, considering the equities and the weakness of the appellant's draft counterclaim.

The Divisional Court dismissed the appeal, finding that the Master applied the correct legal principles and was not clearly wrong in his exercise of discretion.