Alex Robineau

The court addressed two competing motions arising from overlapping proceedings: an application commenced by 9165-6462 Quebec Inc. in Sudbury seeking enforcement of a Transfer Agreement and declarations regarding share ownership, and an action commenced by the plaintiff in Cochrane seeking declarations that the Transfer Agreement is void and that he remains the owner of shares in the DJB companies.

The plaintiff sought to consolidate the proceedings and transfer them to Cochrane, while 9165 Inc. sought to stay or dismiss the action in favour of the application.

The court found that permitting the action to proceed would constitute an abuse of process and an improper collateral attack on a prior judicial order declining to transfer the application.

The court stayed the action against 9165 Inc. pending resolution of the application and dismissed the consolidation motion without prejudice.

This decision concerns the allocation of costs following a trial in which the plaintiffs, Faulkner Real Estate Ltd. and Judy Faulkner, sought damages for alleged exposure to mould in office space leased from the defendants, Sakto Corporation and Waterford Property Group Ltd. The plaintiffs initially claimed over $6,000,000, later reducing the claim to approximately $3,291,000, but were awarded only $4,000 as a partial rent abatement.

The court found the defendants to be the overwhelmingly successful parties and, after considering the offers to settle and other relevant factors, ordered the plaintiffs to pay the defendants' costs on a partial indemnity basis.

The parties settled a motor vehicle accident claim for $9,000 for past loss of income and housekeeping capacity, but could not agree on costs.

The plaintiff sought over $70,000 in costs and disbursements, while the defendants argued for a maximum of $12,278.31 plus HST based on proportionality.

The court found that the plaintiff's costs should be discounted because she was unsuccessful on her claim for general damages.

The court also declined to award costs for the pursuit of Statutory Accident Benefits, as the defendants received no benefit from them.

Costs were fixed at $42,229.05.

Homeowners retained a septic system installer to install a system in 2010, which was approved by the health unit.

Problems with smell and effluent began in 2011 and persisted through 2013.

The installer repeatedly assured the homeowners he could fix the problem and made several attempts to do so.

In 2015, the health unit condemned the system and issued a compliance order.

The homeowners sued in August 2015.

The trial judge dismissed the action as statute-barred under the Limitations Act, 2002, finding the claim was discovered by spring 2013.

The Divisional Court upheld this decision.

The Court of Appeal reversed, finding the trial judge failed to properly analyze section 5(1)(a)(iv) of the Limitations Act regarding when a proceeding would be an appropriate remedy.

The court held that the homeowners reasonably relied on the installer's superior knowledge and expertise, and a proceeding was not appropriate until the installer's remedial efforts ceased in winter 2014.

The action was therefore within the two-year limitation period.

The defendant brought a motion to compel the plaintiff to answer follow-up questions from discovery undertakings, produce an insurance policy, and produce instruction letters sent to its expert witness.

The court held that the defendant did not require leave under Rule 48.04 to bring the motion.

The court ordered the plaintiff to answer one of the two follow-up questions and to produce the insurance policy, as it was a subrogated claim and the policy was relevant.

However, the court dismissed the request for the expert's instruction letters, finding they remained protected by litigation privilege and the expert reports already met the requirements of Rule 53.03(2.1).