Andrew J. MacDonald

This costs decision addresses the allocation of costs for a distribution motion concerning competing claims over preserved funds in a complex fraud and investment scheme case.

The Trial Parties, who succeeded at trial on fraud, breach of fiduciary duty, conspiracy, and unjust enrichment claims, sought to recover their judgment from preserved funds.

The Settling Parties, who had reached settlement agreements with the defendants before trial, sought equitable liens and constructive trusts over the same preserved funds.

The court awarded costs to the Trial Parties against the Settling Parties, finding that the Settling Parties had deliberately delayed enforcement of their settlements and improperly sought to benefit from the Trial Parties' litigation efforts without bearing the associated costs and burdens.

On a post-trial distribution motion arising from a failed land development scheme, the court addressed competing claims between settling investors and investors who proceeded through trial and appeals.

The settling parties obtained judgment on their settlement agreements, but were denied equitable liens over preserved funds because their rights were contractual, the defendants were not shown to own the preserved funds, and equity favoured the trial parties who preserved assets and bore the burdens of the litigation.

The court also held that the trial parties lacked standing to raise limitation defences to enforcement of the settlements, and excluded a disputed email under settlement privilege.

The funds paid into court were ordered distributed pro rata among the trial parties, subject to specified limitations tied to claims against one defendant.

The appellants sought a permanent stay of the plaintiffs' action, arguing that the plaintiffs' failure to immediately disclose a settlement agreement with a former defendant, Sean Antonello, fundamentally altered the litigation landscape.

The Court of Appeal for Ontario dismissed the appeal, affirming the motion judge's finding that the settlement did not significantly change the adversarial relationship between the parties.

The court held that the motion judge's determination was entitled to deference and that the drafting of affidavits by plaintiffs' counsel and a non-disparagement clause did not, by themselves, demonstrate an improper cooperative relationship.

The appellant appealed the dismissal of her defamation claim against a hotel and its night manager.

The claim arose from a log entry made by the manager describing the appellant and her husband as 'very intoxicated' and belligerent during a late-night dispute over a hotel room.

The trial judge found that while the appellant was not intoxicated, the description of her belligerent behaviour was justified and the log entry was protected by qualified privilege.

The Divisional Court dismissed the appeal, finding no palpable and overriding errors in the trial judge's conclusions on justification, qualified privilege, and the absence of malice.

The appellant, a black man, was unlawfully stopped, punched, searched, and left handcuffed on ice by police officers.

The trial judge found breaches of ss. 8, 9, and 10 of the Charter but declined to find racial profiling under s. 15.

On appeal, the Divisional Court found that the circumstantial evidence clearly established racial profiling.

The court increased the Charter damages against the Police Services Board to $50,000 to vindicate society's interest and deter future breaches, and increased punitive damages against both the Board and the offending officer to $25,000.

The appellants (lawyers) appealed a judgment finding that they had agreed to represent the respondent on a pro bono basis and ordering them to repay funds improperly applied to legal fees.

The Court of Appeal dismissed the appeal, finding that the application judge made no errors in allowing the matter to proceed by application, in finding that the retainer was pro bono, or in resolving ambiguity in the retainer in favour of the client.

The court also rejected the appellants' argument that the application judge's conduct raised a reasonable apprehension of bias.

The defendants brought a motion to quash the plaintiff's notice of appeal to the Court of Appeal on jurisdictional grounds.

The trial judge had dismissed the plaintiff's defamation claim but indicated that if the claim had been allowed, damages would have been assessed at $25,000.

The Court of Appeal held that under s. 19(1.2)(d) of the Courts of Justice Act, the Divisional Court has jurisdiction because the trial judge indicated the award would have been not more than $50,000.

The motion to quash was allowed and the appeal was transferred to the Divisional Court.

The applicant brought an application under section 23 of the Solicitors Act for a declaration that legal services provided by the respondent lawyer in an underlying veterinary malpractice action were rendered on a pro bono basis.

The respondent argued the oral retainer was a contingency fee arrangement and billed the applicant $34,000 after the action settled.

The court found that the respondent failed to discharge the heavy onus of proving the terms of the oral retainer over the client's understanding.

The court declared the services were provided pro bono and ordered the return of fees previously paid.

Following a successful civil Charter action against police defendants, the plaintiff sought substantial indemnity costs after obtaining modest damages and declaratory relief.

The defendants argued that no costs should be awarded because the plaintiff recovered less than $100,000 and should have proceeded under the Simplified Procedure.

The court held that it was reasonable for the plaintiff to proceed under the ordinary procedure given the need for full discovery and cross-examination to establish credibility and Charter violations.

The court further found troubling litigation conduct by the defendants, including problematic testimony and evidentiary issues relating to video recordings.

Balancing the factors under Rule 57.01 and access to justice considerations, the court awarded substantial indemnity costs to the plaintiff.

The plaintiff sued for battery, false arrest, and Charter damages after police stopped him without a reasonable suspicion of criminal activity, forcibly subdued him, searched his pockets and wallet, and kept him handcuffed outside in freezing conditions.

The court held there was no lawful investigative detention under the common law framework in Mann, no lawful basis for the searches, and breaches of ss. 8, 9, 10(a), and 10(b) of the Charter.

The court also found that one officer punched the plaintiff twice and committed battery and false arrest.

General damages of $9,000, punitive damages of $18,000, and declarations of Charter breach were awarded.

The appellant appealed a partial summary judgment granted in a simplified proceeding under Rule 76, arguing it was not an efficient and proportionate way to deal with the issues.

The Court of Appeal dismissed the appeal, noting that summary judgment is available in Rule 76 actions and the appellant had failed to file any responding evidentiary materials to challenge the respondent's straightforward collection claim.

The defendant brought a motion seeking a stay of a civil action on the basis that the plaintiff had initiated a parallel complaint before the Canadian Human Rights Commission arising from substantially the same facts.

While courts sometimes allow simultaneous civil and human rights proceedings, they may also prevent duplicative litigation as an abuse of process.

Before the motion was decided on the merits, the Commission issued a report recommending that the human rights complaint be held in abeyance pending the outcome of the civil action, effectively eliminating the basis for the stay motion.

The court dismissed the motion without prejudice to it being brought again if the administrative complaint were revived.

The plaintiff was awarded partial indemnity costs for defending the motion.

The appellant appealed a summary judgment decision.

The Court of Appeal found that there was a genuine issue requiring a trial regarding whether the respondent employer was entitled to direct the appellant to take his vacation during the notice period.

The employer's vacation policy was ambiguous, meaning the issue could not be resolved on summary judgment before discoveries.

The appeal was allowed and the summary judgment was set aside.

The defendant moved for security for costs under Rule 56.01(1)(c) of the Rules of Civil Procedure on the basis that a prior costs order contained in a consent judgment remained partially unpaid.

The court held that even where the technical requirements of the rule are met, the court retains discretion to refuse security for costs after considering all relevant circumstances, including the merits of the claim.

The court clarified that the role of the merits under Rule 56.01(1)(c) falls on a continuum between the standards applicable under Rule 56.01(1)(a) and Rule 56.01(1)(e).

On the evidence, the plaintiffs demonstrated a good likelihood of success in their action to set aside a consent judgment based on alleged undisclosed liabilities in a share purchase transaction.

In light of the strength of the plaintiffs’ case and the absence of responding evidence from the defendant, ordering security for costs would be unjust.

The applicant, a nursing student on academic probation, sought judicial review of a decision by the Dean of Nursing suspending her from a clinical placement, which effectively required her withdrawal from the program.

She alleged a reasonable apprehension of bias, failure to apply the professional suitability policy, and procedural unfairness.

The Divisional Court dismissed the application, finding no reasonable apprehension of bias, substantial compliance with the policy, and that the subsequent appeal hearing was a hearing de novo that cured any alleged procedural defects.

The defendant brought a motion for leave to appeal a decision dismissing its appeal from a Master's order.

The Master had struck a summons issued by the defendant to examine the plaintiff as a witness on a motion to strike the defendant's counterclaim for defamation.

The Divisional Court dismissed the motion for leave to appeal, confirming that under Rule 21.01(1)(b) of the Rules of Civil Procedure, no evidence is admissible on a motion to strike a pleading for disclosing no reasonable cause of action.

The parties were involved in a joint venture agreement to develop land.

When the lender demanded repayment of its loan, the appellants did not pay their share.

The respondents used a non-arm's length company to purchase the loan and foreclose on the lands, appropriating the appellants' investment.

The appellants sued for breach of the joint venture agreement.

The trial judge dismissed the action, finding that none of the parties relied on the agreement's provisions and instead pursued self-interest outside its terms.

The Court of Appeal upheld the decision, ruling that a party cannot enforce an agreement it has demonstrated an intention not to be bound by.

The appellants appealed a decision enforcing a settlement agreement.

The motion judge had found that the respondent's letters were acceptances of the appellants' settlement offer, not counteroffers, and that terms regarding timing of payment and releases were merely incidental.

The Court of Appeal agreed with the motion judge's conclusions and dismissed the appeal, awarding costs to the respondent.

The appellant estate challenged a deathbed transfer of land changing title from tenancy in common to joint tenancy, alleging lack of capacity and undue influence.

The Court of Appeal, by majority, held that the trial judge's findings were entitled to deference and were reasonably supported by the evidence.

The majority found the deceased had the requisite disposing mind and memory and that the successful persuasion to sign appealed to fairness rather than amounting to coercion.

A dissenting judge would have found actual undue influence based on the cumulative pressure exerted in the hospital room.

The appeal was dismissed with costs to the respondent payable from the estate.