Alexander Bissonnette

Following a successful defence against an application to terminate a commercial lease, the respondents sought substantial indemnity costs.

The applicant argued costs should be limited to partial indemnity.

The court found that although the respondents' settlement offers were not formal Rule 49 offers, they were sincere efforts to resolve the matter on terms as favourable as the judgment.

The court exercised its discretion to consider the offers and awarded elevated costs fixed at $20,000.

The Court-Appointed Receiver of Ashcroft Homes – Capital Hall Inc. sought approval of a settlement agreement with Northbridge Financial Corporation concerning an action for approximately $60 million in damages related to a fire that interrupted construction of a 353-unit residential condominium building in Ottawa.

The Receiver also sought a sealing order to protect the confidential terms of the settlement.

The court approved the settlement as reasonable and granted the sealing order, finding that the public interest in maximizing recovery for stakeholders and promoting settlement outweighed the principle of court openness under the three-part test established in Sherman Estate v. Donovan.

The decision resolves an application for directions in the administration of the estate of Prema Raddalgoda.

The applicant, Sidath Raddalgoda, sought orders for occupation rent, reimbursement of legal fees, directions regarding renovation expenses, and removal of his brother, Malsiri Raddalgoda, as co-Estate Trustee.

The court found that Malsiri Raddalgoda’s conduct delayed and prejudiced the administration of the estate, ordered him to pay occupation rent and legal fees, required documentation for renovation expenses, and removed him as co-Estate Trustee.

The court also addressed costs, awarding fixed costs to the applicant.

Central 1 Credit Union applied to appoint a receiver over 2139770 Ontario Inc. following defaults on a $43.5 million credit facility.

The parties had entered into a forbearance agreement, but the debtor failed to deliver required underwriting documents and appraisals by the agreed deadline.

The court found the defaults were not trivial but granted the debtor a brief extension to cure the breaches and provide the missing information, effectively granting relief from forfeiture.

If the debtor fails to meet the strict new deadlines, a receiver will be appointed.

This costs endorsement followed a motion by Fundstream Inc. to strike portions of 9695672 Canada Inc. o/a Vector's claim, which was dismissed.

Vector, as the successful party on the underlying motion, sought substantial indemnity costs.

The court, applying Rule 57.01 of the Rules of Civil Procedure and s. 131 of the Courts of Justice Act, awarded Vector $7,000 in costs on a partial indemnity basis, finding this amount to be fair and reasonable given the complexity and importance of the motion, and considering the principle of indemnity and the reasonable expectations of the parties.

The applicant builder sought judicial review of a decision by Tarion Warranty Corporation ordering it to pay $7,500 in delayed occupancy compensation to a purchaser.

The builder argued that the delay was unavoidable due to a fire and the COVID-19 pandemic, and that it had provided proper notice to the purchaser.

The Divisional Court dismissed the application, finding that Tarion's decision was reasonable because the builder's notice failed to specify an end date for the unavoidable delay or provide a brief description of it, and the builder failed to provide sufficient evidence that the entire delay was caused by the fire and pandemic.

The defendant Fundstream Inc. brought a motion to strike portions of the plaintiff Vector's Statement of Claim, specifically allegations of conspiracy by unlawful means, predominant purpose conspiracy, and false representation.

Fundstream argued that these claims lacked sufficient particularity.

The court reviewed the test for striking pleadings, emphasizing a generous reading of the claim and a high threshold for striking.

Despite the requirement for heightened particularity in pleading fraud and conspiracy, the court found that Vector's pleadings provided enough detail for the defendants to know the case they had to meet, acknowledging that some specific details of the alleged conspiracy might only become known through the discovery process.

The motion to strike was dismissed.

The applicant brought an application seeking to manage the personal care of her elderly mother, challenging the validity of recent powers of attorney granted to the mother's husband and son.

The applicant alleged the mother lacked capacity and was subject to undue influence, and alternatively sought to be appointed guardian and requested ordered visits.

The court dismissed the application, finding insufficient evidence of incapacity or undue influence to invalidate the powers of attorney.

The court also declined to appoint a guardian or order visits, noting the mother was not found incapable of personal care and the court's parens patriae jurisdiction was not warranted.

Following the dismissal of the plaintiff's defamation claims, the successful defendants (the Attorney General of Canada and an individual) sought partial indemnity costs of $16,084.

The plaintiff objected to the hourly rates proposed for Crown counsel, arguing they exceeded internal department rates and violated the indemnity principle.

The court rejected this argument, applying the principle that costs for salaried government lawyers should be fixed as though they were independent outside counsel.

The court found the proposed rates reasonable and awarded the requested costs.

The defendants moved to dismiss or stay the plaintiff's defamation claim arising from statements allegedly made at a conference in Montreal, arguing the Ontario court lacked jurisdiction.

They also moved to strike the remaining defamation allegations for failing to disclose a reasonable cause of action.

The court granted the motion, finding it lacked subject-matter jurisdiction over the Montreal defamation claim under s. 21(1) of the Crown Liability and Proceedings Act because the claim arose in Quebec.

The court also struck the remaining defamation claims without leave to amend, as the plaintiff failed to plead the necessary material facts to establish a prima facie case of defamation.

The Applicant, successful in an oppression application under the Canada Business Corporations Act, sought substantial indemnity costs after recovering a modest $14,555.34.

The court assessed the Applicant's costs outline, which included two offers to settle.

The first offer was deemed invalid for costs consequences under Rule 49.11 as it was not made to all jointly and severally liable defendants and was not unilaterally controllable.

The second offer, while made to both respondents, was structured in a way that required an ad hoc assessment of costs, making it difficult to determine if the result was better than the offer.

Emphasizing proportionality given the modest recovery and the significant costs incurred by the Applicant (including multiple lawyers), the court awarded a proportionate sum of $20,000, all inclusive, payable jointly and severally by the Respondents, significantly less than the Applicant's claim.

The defendant brought a motion under Rule 2.1.01(1) to dismiss the plaintiff's action as frivolous, vexatious, or an abuse of process.

The plaintiff's claim alleged the defendant "perverted the course of justice" by failing to attend a Small Claims Court settlement conference to provide medical documents.

The court, noting the plaintiff's history of numerous similar claims referencing an involuntary committal, driver's licence suspension, and vague conspiracy allegations, found the current claim to be abusive litigation.

The action was dismissed.

The appellants appealed a trial judgment enforcing a construction lien against them.

The trial judge had applied the 'special circumstances' doctrine to extend the limitation period to add a tenant corporation as a defendant, and pierced the corporate veil to find the landlord corporation was an 'owner' under the Construction Lien Act due to common ownership.

The Divisional Court allowed the appeal, holding that the 'special circumstances' doctrine does not apply to the mandatory statutory deadlines in the Construction Lien Act, and that the corporate veil cannot be pierced absent conduct akin to fraud.

The plaintiff brought a motion to compel the defendant to provide further affidavit of documents and permit additional examinations for discovery, eight years after the action commenced and after it was set down for trial.

The defendant opposed, arguing the plaintiff required leave and that the request was untimely and disproportional.

The court found that a pre-trial endorsement by Justice Doyle constituted leave.

It determined the requested documents, concerning other clients using the same IP address and related performance issues, were relevant to the plaintiff's negligence claim.

Despite the significant delay and potential for trial adjournment, the court ordered disclosure, with the plaintiff bearing the initial costs of retrieval, to mitigate proportionality concerns.

Costs for the motion were not awarded to the successful plaintiff due to the delay and non-compliance with case management orders.

The plaintiff, Pryers Construction Ltd., sought to enforce a construction lien for $34,601.66 against MVMB Holdings Inc., Scott Birnie, and Riverside Ford Sales Limited for renovation work.

Key issues included the applicability of the old Construction Lien Act versus the new Construction Act, the addition of Riverside as a party despite the Limitations Act, and the personal liability of Scott Birnie.

The court found the old Construction Lien Act applied, allowed the addition of Riverside as a party under the doctrine of special circumstances, and determined that both corporate defendants were "owners" under the Act.

However, the court declined to pierce the corporate veil to hold Scott Birnie personally liable.

Judgment was granted in favour of the plaintiff against the corporate defendants for the claimed amount.

The applicant, Dennis Marchand, brought a motion to add Christine Denis and 8766177 Canada Inc. as parties to an existing oppression remedy application under section 241 of the Canadian Business Corporations Act.

Marchand alleged that the original respondents, Stuart Graham and David Harroch, dissolved their shared company (7104383 Canada Inc.) and subsequently operated a new hockey tournament through Christine Denis's company (8766177 Canada Inc.).

The court dismissed the motion, finding no evidence that Denis or 8766177 Canada Inc. were involved with the original corporation or were affiliates, thus lacking a foundation for a cause of action under section 241 of the CBCA against them.

The plaintiff sued his insurance broker for negligence after his insurer denied coverage for a fire loss because the rental property had been vacant for over five years.

The defendant broker brought a motion for summary judgment to dismiss the claim.

The court found that the broker had discharged its duty of care by sending letters explicitly warning the plaintiff about the vacancy exclusion.

Furthermore, the property's uninhabitable state constituted an unreported material change in risk.

The court granted the defendant's motion and dismissed the plaintiff's claim.