Albert Samson Frank

The plaintiffs sought leave to appeal a $52,000 costs order made against them following their successful motion to amend the statement of claim.

The plaintiffs argued the motions judge misapplied the 'indulgence' principle by awarding costs against the successful moving party.

The Divisional Court dismissed the application, finding no conflicting decisions or reason to doubt the correctness of the highly discretionary, fact-specific costs award.

The court held the stringent test for leave to appeal under Rule 62.02(4) was not met.

In complex estate and commercial litigation arising from estate planning transactions and a will that effectively disinherited family members, the plaintiffs sought leave to further amend their statement of claim to add allegations of knowing assistance in breach of trust and fiduciary duty against an accountant and additional particulars against other defendants.

Several defendants opposed the amendment on the basis of prejudice and limitation periods under the Limitations Act, 2002.

The court held that under Rule 26.01 of the Rules of Civil Procedure leave to amend should be granted unless non-compensable prejudice would result, and that disputes about discoverability and limitation periods should be determined by the trial judge on a full evidentiary record.

As discoveries were ongoing and trial remained more than a year away, any prejudice could be addressed through costs.

Leave to amend was granted with costs awarded to certain defendants for prejudice arising from the amendments.

Following a motion in a wrongful dismissal action involving a multinational employer, the court had previously stayed the Ontario proceeding on the basis of forum non conveniens while finding that Ontario had jurisdiction simpliciter.

The defendants sought substantial costs after obtaining the stay.

The court considered the factors under s.131 of the Courts of Justice Act and rule 57.01 of the Rules of Civil Procedure, including the complexity and novelty of jurisdictional issues involving cross‑border employment disputes.

Because the plaintiff succeeded on the jurisdiction issue while the defendants succeeded on forum non conveniens, the result of the motion was divided.

Exercising its discretion, the court concluded that fairness required no costs award.

The plaintiff, an Ontario resident who was transferred to work in New York for a subsidiary of an Ontario corporation, brought an action in Ontario for wrongful dismissal and human rights violations after her employment was terminated.

The defendants moved to dismiss or stay the action for lack of jurisdiction or on the basis of forum non conveniens.

The court found that it had jurisdiction simpliciter because the Ontario parent corporation exercised effective control over the plaintiff's employment and the employment contract was connected to Ontario.

However, the court declined to exercise its jurisdiction, finding that New York was the clearly more appropriate forum because the key witnesses, evidence, and factual matters at the core of the dispute were located there.

The action was permanently stayed.

Following a motion hearing concerning a significant advance payment request in complex estate-related litigation, the court determined the appropriate costs award.

Applying the factors in Rule 57 of the Rules of Civil Procedure, the court considered the importance and novelty of the issues and the reasonable expectations of experienced litigants.

The plaintiff was successful and entitled to substantial costs for the motion.

The court also addressed the entitlement of the estate trustee during litigation to costs payable from the estate under a prior order.

A surviving spouse sought an advance equalization payment of $4.5 million from the estate of her deceased husband under the Family Law Act or, alternatively, partial summary judgment.

The motion was opposed by several defendants asserting potential claims against the estate and challenging their standing and the appropriateness of the advance.

The court held that the equalization entitlement between spouses is personal under the Family Law Act and that the defendants were neither proven creditors nor beneficiaries.

Applying the three-part test for advance equalization payments from Laamanen v. Laamanen, the court found a reasonable need for litigation funding, little doubt of entitlement to at least the requested amount, and that granting the advance was just in the circumstances.

Following earlier rulings on a derivative leave motion in estate litigation, the court addressed outstanding procedural directions and the issue of costs for five related motions.

The plaintiffs sought substantial indemnity costs exceeding $144,000 for work connected primarily to the derivative issues.

Applying Rule 57 of the Rules of Civil Procedure and the proportionality principles discussed in Boucher v. Public Accountants, the court held that the requested amount far exceeded the reasonable expectations of the unsuccessful parties for a one‑day motion.

Substantial indemnity costs were denied.

The court fixed costs payable by the defendants jointly and severally at $55,000 inclusive of taxes and interest.

The appellant appealed two orders of a Master dismissing its action and ordering payment out of court.

The action, which was over seven years old, had been transferred to Case Management after years of dormancy.

The Master found the appellant had repeatedly breached orders regarding security for costs, delivery of a release, and provision of damages calculations and documentation.

The Divisional Court held that the Master did not err in principle or in the exercise of his discretion under Rules 60.12 and 77.10(7) to dismiss the action.

The appeal was dismissed with costs to the respondent on a partial indemnity scale.