Andra M. Pollak

This is a costs endorsement following an unsuccessful application by Catharine Patricia Patterson.

The successful respondent, York Condominium Corporation No. 70, sought substantial indemnity costs, arguing for deterrence against unmeritorious lawsuits.

The unsuccessful applicant requested partial indemnity costs in her favour, despite losing the application.

The court, applying Rules 49 and 57.01 of the Rules of Civil Procedure and principles from Boucher v. Public Accountants Council for the Province of Ontario, found the applicant's submissions unacceptable and the respondent's request for substantial indemnity costs unwarranted.

While agreeing the application lacked merit, the court did not find the threshold for substantial indemnity met.

The court awarded the respondent partial indemnity costs of $14,646, to be paid by the applicant.

The appellant, Travelers Insurance Company, appealed an arbitrator's decision that it was the priority insurer for statutory accident benefits following an accident in Nunavut.

The arbitrator found Travelers liable because it was an Ontario insurer, had filed a Power of Attorney and Undertaking (PAU) in Ontario, and was the insurer of the car involved.

Travelers argued the arbitrator erred by applying Ontario law to a Nunavut policy without first determining if the policy provided Ontario benefits coverage.

The court upheld the arbitrator's decision, finding that the standard of review was reasonableness and that Travelers, as an Ontario-licensed insurer and PAU signatory, was bound by Ontario's priority laws, precluding it from denying coverage based on the accident's location.

The applicant sought declarations and orders against the condominium corporation and a board member for alleged failures to fulfill obligations under the Condominium Act, including inadequate funding of reserve accounts, failure to increase common expenses, and neglect of necessary repairs.

The respondents argued that the issues were being addressed by a new management company and that the business judgment rule applied.

The court dismissed the application, finding no evidence that the board had acted unfairly or unreasonably, or that court intervention was required.

The plaintiff moved for summary judgment to enforce a foreign arbitration award.

The defendant raised multiple genuine issues requiring trial, including the validity of the arbitration, set-off, scope of arbitration, and identity of the contracting party.

The court dismissed the motion, emphasizing the cautions against partial summary judgment articulated in Hryniak and Butera, noting the risk of inconsistent findings, delay, increased costs, and wasted judicial resources, as the motion would not dispose of the entire action and many issues would remain for trial.

Following the dismissal of the plaintiffs' motion for summary judgment, the court issued a costs endorsement.

The parties had agreed at the hearing that the successful party would receive $25,000 in costs on a partial indemnity basis.

The court found no reason to depart from this agreement and awarded $25,000 in costs to the defendants.

The plaintiff employee brought a motion for summary judgment claiming he was terminated without cause with 72 weeks remaining on a fixed-term employment contract.

He sought liquidated damages for the balance of the term, while leaving alternative claims regarding the validity of the termination clause for trial if unsuccessful.

The court dismissed the motion, finding that partial summary judgment was inappropriate in these circumstances.

Applying the principles from Butera and Hryniak, the court held that bifurcating the issues risked inconsistent findings at trial and would not serve the goals of proportionality, timeliness, and affordability.

RONA Inc. brought a motion for summary judgment to dismiss a wrongful dismissal action initiated by Brian Roskaft.

Roskaft, who had been on long-term disability (LTD) since 2012, was terminated in 2015 on the grounds of frustration of contract, with RONA asserting there was no reasonable likelihood of his return to work.

The court considered the totality of evidence, including post-termination medical information, to determine if the contract was frustrated at the time of dismissal.

The motion was granted, and Roskaft's claim was dismissed.

The defendant, the Office of the Children’s Lawyer (OCL), brought a motion for summary judgment to dismiss the plaintiff's claim for notice or payment in lieu of notice upon the expiry of her contract.

The central issues were whether the plaintiff was a dependent or independent contractor and, if dependent, whether she was entitled to notice despite a fixed-term contract.

The court found the plaintiff to be a dependent contractor, considering the 13-year continuous relationship, the integral nature of her work for the OCL, public perception, and the OCL's control, despite her OCL income averaging less than 50% of her total billings.

The court also rejected the argument that fixed-term contracts preclude notice in this context due to the repeated renewals.

The motion for summary judgment was dismissed.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' claims for damages arising from construction on an adjacent property and a failed retaining wall, or alternatively, to transfer the action to Small Claims Court.

The plaintiffs claimed damages for interference with their home's use and enjoyment, including punitive and aggravated damages.

The court dismissed the defendants' motion, finding that genuine issues requiring a trial existed, particularly concerning punitive damages and the complex nature of the crossclaims.

The court emphasized that partial summary judgment is a "rare procedure" and that the motion did not meet the objectives of proportionality, timeliness, and affordability as outlined in *Hryniak* and *Butera*.

The Plaintiff, James Joseph Walsh, brought a motion for summary judgment seeking repayment of outstanding debts from the Defendants, Janina Joseph-Walker and Avenue Developments Inc., totaling $353,000 from dishonoured bills and $100,000 in unsecured debt.

The Defendants denied the debts were due, asserting they were subject to repayment terms and disputing personal liability for Ms. Joseph-Walker.

The court applied the three-part summary judgment analysis, finding genuine issues of material fact regarding the terms of the agreements and the applicability of the Bills of Exchange Act.

The motion judge determined that a mini-trial was inappropriate and that a full trial was necessary to resolve the conflicting evidence.

Consequently, the motion for summary judgment was dismissed.

The plaintiff brought a motion to strike the defendant's Statement of Defence without leave to amend and for default judgment.

The defendant admitted to misappropriating funds but claimed her actions were caused by mental distress resulting from the plaintiff's demands that she assist in fraudulent acts.

The court found it was not plain and obvious that the defence could not succeed, but held that the particulars improperly focused on the plaintiff's alleged illegal acts rather than the acts causing the defendant's stress.

The court struck paragraphs 6 to 14 of the Statement of Defence with leave to amend.

The applicants brought a motion to oppose the confirmation of a Master's report regarding the amount owing under a boiler and machinery insurance policy issued by the respondent.

The applicants argued the Master erred in law by distinguishing between the valuation clauses in their property policies and the respondent's policy, and by accepting the respondent's valuation evidence which allegedly factored in depreciation improperly.

The Superior Court of Justice dismissed the motion, finding no error in the Master's conclusion that the respondent's policy required replacement with property of 'like kind, capacity, size and quality', which differed from the 'new for old' replacement cost coverage in the applicants' policies.

The plaintiff rented his high-performance vehicle to the defendant for a weekend.

The vehicle suffered catastrophic engine failure while in the defendant's possession.

The plaintiff sued for breach of contract, alleging the defendant over-revved the engine and drove beyond legal limits, evidenced by a depleted methanol tank.

The court found the defendant breached the agreement to use utmost care and return the vehicle in substantially the same condition.

The plaintiff was awarded $53,535.30 in damages for the engine replacement.

Claims for punitive damages, the defendant's counterclaim for the rental fee, and a third-party claim were dismissed.

The plaintiff brought a motion for summary judgment for an admitted debt of $164,451.82.

The defendant counterclaimed, alleging that a representative of the plaintiff conspired with a third-party livestock dealer to exert undue influence and duress, forcing the defendant to sell his livestock and ruining his business.

The court granted summary judgment for the plaintiff and dismissed the counterclaim, finding it was barred by the Limitations Act, 2002 and lacked sufficient evidence to establish the tort of civil conspiracy.

The plaintiffs brought a motion for summary judgment seeking a declaration that they validly rescinded a franchise agreement under the Arthur Wishart Act due to deficient disclosure, and claiming rescission damages of $228,611.83.

The defendants argued that adequate disclosure was provided and that the plaintiffs did not rely on the allegedly missing documents.

The court found that there were genuine issues requiring a trial due to significant conflicts in the evidence regarding what documents were provided and when, and whether the plaintiffs were deprived of the opportunity to make an informed investment decision.

The motion for summary judgment was dismissed.

The police defendants brought a motion to strike the plaintiff's statement of claim without leave to amend.

The plaintiff, who had been charged with careless driving, alleged a broad organized crime conspiracy, racial profiling, and malicious investigation by the police.

The court found that the claim was frivolous, vexatious, and an abuse of process, as it contained bald, inflammatory allegations unsupported by material facts and failed to plead the required elements for conspiracy, negligent investigation, or Charter breaches.

The motion was granted and the claim was struck in its entirety without leave to amend.

Following a successful motion for summary judgment, the defendants sought costs on a full indemnity basis, citing the plaintiff's unreasonable conduct and late withdrawal of serious allegations.

The plaintiff argued that full indemnity costs were not justified and challenged the time spent by the defendants.

The court found that the defendants' offer to settle, which proposed dismissing the action without costs, was a valid compromise.

Costs were awarded to the defendants on a partial indemnity basis up to the date of the offer and on a substantial indemnity basis thereafter.

The applicant applied for an order to resolve an insurance policy dispute by arbitration at JAMS offices in Toronto.

The respondent argued that the arbitration should be conducted under the English Arbitration Act and that the applicant had not properly commenced the arbitration.

The court found that its jurisdiction to intervene only arises if there is a failure of the parties to agree on the appointment procedure.

Since the applicant had not followed the agreed procedure by making a proper written request and appointing its arbitrator, the court declined to intervene and dismissed the application.

The plaintiff, a 70-year-old senior executive with 30 years of service, brought a motion for summary judgment for wrongful dismissal.

The court awarded a 24-month reasonable notice period based on the Bardal factors.

However, the court dismissed the plaintiff's claims for lost bonus during the notice period and a pro-rated bonus for the year of termination, finding that the bonus plan's language unambiguously excluded such payments upon termination.

The court ordered the employer to pay the balance of the notice period in monthly installments, subject to the plaintiff's continuing duty to mitigate.

The plaintiff brought a motion for summary judgment seeking possession of a property pursuant to a reverse mortgage that went into default due to unpaid property taxes.

The self-represented defendant did not deny the default but raised unclear allegations of fraud and unreasonableness.

The court applied the Hryniak framework, found no genuine issue requiring a trial, and granted the plaintiff's motion for possession, awarding partial indemnity costs of $9,000.