Allison A. Russell

Following the settlement and dismissal of the plaintiff's claim for a constructive trust and equitable easement over the defendants' property, the defendants sought costs of $121,298.36.

The plaintiff argued the amount was excessive and should be capped at $50,000 under the simplified procedure rules.

The court found the $50,000 cap did not apply because the action was commenced under the ordinary procedure and the defendants had reserved their right to seek costs incurred prior to the conversion.

Considering the defendants' early and repeated offers to settle, the complexity of the proceedings, and the conduct of the parties, the court awarded the defendants fixed costs of $110,000.

The defendants brought a motion to strike portions of the plaintiff's Amended Amended Statement of Claim and Amended Reply on the basis that they improperly referred to settlement discussions.

The plaintiff argued the motion was out of time because the action had been set down for trial.

The court granted leave for the motion, finding the plaintiff knew the motion was forthcoming.

Applying the test for settlement privilege, the court struck the impugned paragraphs, finding they improperly disclosed settlement negotiations, offers regarding damages, and alleged admissions made during those discussions.

The plaintiffs moved to strike the defendants’ Statement of Defence due to repeated non-compliance with the Rules of Civil Procedure and court orders, including failure to serve affidavits of documents and notices of intention to act in person after their counsel was removed.

The court reviewed the relevant rules and case law, found the defendants’ non-compliance clear and material, and granted the motion to strike the defence.

The moving parties sought leave to appeal an order of Justice Kershman dated May 27, 2022.

The Divisional Court denied the motion for leave to appeal, awarding costs of $5,000 all-inclusive to the responding party.

The appellant appealed a judgment of the Superior Court of Justice determining that fencing and a retaining wall along Greenfield Avenue in Ottawa constituted "Shared Property" under a Co-Tenancy Agreement dated December 15, 1998, governing a townhouse development known as Kings Landing.

The Court of Appeal upheld the lower court's contractual interpretation, finding no palpable and overriding error and no extricable question of law.

The application judge had correctly articulated and applied the principles of contractual interpretation and read the contract as a whole.

The appeal was dismissed with costs fixed at $20,500 including HST and disbursements.

The plaintiff, AGC Flat Glass North America Ltd., moved for summary judgment on its construction lien claim against the defendants, Man-Shield (NWO) Construction Inc. et al., concerning a condominium development.

The court granted partial summary judgment to AGC for specific amounts related to the windows and doors subcontract ($84,201.80), a glass shower enclosure extra ($53,839.42), and mirrors and hollow glazing extras ($19,484.07).

However, the court found genuine issues for trial regarding alleged "walking glass" deficiencies in guardrails and the quantum of a caulking extra, necessitating mini-trials for these two issues.

The court rejected the respondent's general arguments for delaying payment based on counterclaims and "flow through" claims from the owner, emphasizing the need for parties to present their best evidence on summary judgment motions.

This decision addresses costs following an application concerning a Co-Tenancy Agreement.

The Applicants sought declarations regarding 'Shared Property' and alleged bad faith by the Co-Tenancy Committee.

The court previously ruled against the Applicants on both issues.

The Respondents sought substantial indemnity costs, while the Applicants and Intervenor argued for reduced or no costs, citing an early offer to settle and proportionality.

The court fixed the Respondents' total costs at $145,000, apportioning $28,000 to the Intervenor and $117,000 to the Applicants, based on partial indemnity for the interpretation issue and substantial indemnity for the bad faith claim due to the Applicants' conduct.

The defendant general contractor brought a motion for security for costs against the plaintiff sub-contractor in a construction lien dispute.

The plaintiff, an insolvent corporation whose only significant asset was the lien claim, argued that its impecuniosity should relieve it from posting security.

The court found that the plaintiff failed to provide full and frank financial disclosure regarding the ability of its shareholders to post security.

The motion was granted, and the plaintiff was ordered to post $150,000 in security for costs, plus an additional $50,000 prior to trial.

The moving parties sought summary judgment dismissing a counterclaim alleging misrepresentation, breach of contract, and intentional interference with economic relations on the basis that it was barred by the two‑year limitation period under the Limitations Act, 2002.

The counterclaim asserted claims virtually identical to those raised by the respondent in an earlier action that had been dismissed for lack of jurisdiction following enforcement of a forum selection clause by the Supreme Court of Canada.

The court held that the Limitations Act, 2002 is exhaustive and does not permit courts to decline to apply statutory limitation periods based on special circumstances.

As the claims were discovered years earlier and no statutory exception applied, the counterclaim was statute‑barred.

The court granted summary judgment striking the counterclaim and ordered the respondent to pay funds into court pending resolution of an indemnity claim, failing which judgment would issue.

The Court considered whether defendants could seek dismissal under Ontario Rule 21.01(3)(a) based on arbitration and forum selection clauses after delivering a statement of defence.

It held that a defence pleading the foreign forum clause does not itself bar a subsequent Rule 21 motion, provided the motion is brought promptly.

Applying the strong-cause framework for displacing contractual forum clauses, the Court found no basis to refuse enforcement.

The appeal was dismissed with costs.

The appellants appealed a Small Claims Court decision finding them liable for fraudulent misrepresentation regarding a latent defect in a property they sold to the respondent.

The trial judge found that the appellants recklessly answered a Disclosure Statement regarding basement leakage.

The Divisional Court applied the Housen standard of review and found no palpable or overriding error in the trial judge's conclusions that the basement leak was a latent defect and that the appellants' reckless answers constituted fraudulent misrepresentation.

The appeal was dismissed.