Annette Casullo

The plaintiff sought reconsideration of a costs award after her counsel was not given an opportunity to make submissions on costs following the dismissal of her motion for disclosure.

The court confirmed its jurisdiction to reconsider an order before it is formally entered to avoid a miscarriage of justice, particularly where a procedural error by the court prevented a party from being heard on costs.

After reviewing written submissions, the court found no reason to vary the original partial indemnity costs award of $8,741.50 to the defendant, concluding the time and effort expended were not disproportionate.

No costs were awarded for the reconsideration endorsement.

The applicant sought a de novo review of his detention order under s. 520(1) of the Criminal Code, having previously consented to detention.

Facing charges including assault with a weapon, uttering threats, and robbery, and being in breach of a conditional sentence, the onus was on the applicant to justify release.

The court considered the secondary and tertiary grounds for detention, noting the applicant's lengthy criminal record and his provision of a materially false affidavit.

Despite the proposed surety and the risks associated with COVID-19 in correctional facilities, the court found the applicant failed to persuade it that he should be released, citing his disrespect for the law and substantial likelihood of breaching conditions.

The application for release was dismissed, and the detention order was maintained.

The defendant, Gore Mutual Insurance Company, brought a motion to consolidate two actions (CV-19-108 and CV-19-109) commenced by the plaintiffs, David Coon and Susan Leslie Coon.

Both actions arose from property damage due to a tree falling and subsequent flooding.

The first action ("Coverage Action") concerned the denial of an insurance claim for a destroyed rental unit, based on contractual interpretation.

The second action ("Negligence Action") related to the defendant's alleged negligent instruction to stop mitigation efforts, leading to further property damage.

The court applied Rule 6.01 of the Rules of Civil Procedure and a detailed 17-factor test for consolidation, finding that despite common parties and originating incident, the legal issues and heads of damages were distinct.

The motion for consolidation was dismissed, with the court ordering that the actions be tried together or one after the other as determined by the trial judge.

Costs were awarded to the plaintiffs.

The respondent brought a motion to transfer an estate application from Ottawa to Newmarket.

The applicant, who commenced the application in Ottawa, opposed the transfer.

The court considered the factors under Rule 13.1.02(2) of the Rules of Civil Procedure and found that the convenience of the parties was equally balanced.

The court also noted that keeping the matter in Ottawa would trigger mandatory mediation under Rule 75.1, which would benefit the parties.

The motion was dismissed as the respondent failed to establish that Newmarket was a significantly better venue.

The plaintiff, Richard Froud, brought an action against his sister, Susan Froud, seeking disgorgement of life insurance proceeds she received following their mother's death.

Richard alleged that a family agreement required the mother's $1,000,000 life insurance policy to be reduced to $500,000 in exchange for him receiving a house at a discounted price.

The court found that the written agreements, including an Agreement of Purchase and Sale and an Acknowledgment, did not contain a condition to reduce the policy.

The court also dismissed claims of breach of fiduciary duty and bad faith, concluding that the parties acted in their own best interests.

The action was dismissed in its entirety.

The defendants in a nuisance action brought a motion for leave to bring a motion and for an order to inspect the plaintiffs' property under Rule 32 of the Rules of Civil Procedure.

The parties were involved in two separate actions regarding a dispute over encroaching earth and water.

The defendants had previously been ordered to seek leave before bringing further motions due to past intransigence.

The court granted leave, finding the defendants had not been frivolous or vexatious in recent years.

The court also granted the request for inspection, allowing the defendants' experts to visually inspect the plaintiffs' property, as it was necessary for the proper determination of the issues and would not cause prejudice.

Costs of $23,000 were awarded to the moving parties.

The defendant owner brought a motion to discharge the plaintiff construction manager's claims for lien.

The plaintiff had registered a lien for over $7.5 million, representing its 50% share of cost savings realized on the construction project pursuant to the contract.

The defendant argued that cost savings are akin to profit-sharing and are not lienable under section 14 of the Construction Act.

The court dismissed the motion, finding that cost savings provisions are integrally linked to the services provided by a construction manager and are therefore properly lienable.

The applicant and respondent, siblings, engaged in a dispute over their mother and sister's properties and the respondent's management as attorney for property.

Both incapable parties resided in long-term care.

The applicant sought an order for the respondent to pass her accounts and to reverse the severance of a joint tenancy, while the respondent sought to enforce a mediated settlement.

The court declined to enforce the settlement as it prejudiced the incapable parties, refused to order a passing of accounts to preserve limited funds, and ordered the sale of the properties to fund the incapable parties' ongoing care, applying the anti-ademption provisions of the Substitute Decisions Act to the proceeds.

The Applicants, beneficiaries of an estate, sought costs against the Respondent, the initially appointed estate trustee, after the court ordered the Respondent to be passed over due to unreasonable conduct and delay in estate administration.

The court awarded the Applicants costs of $29,276.15, payable personally by the Respondent, to be set off against any executor compensation.

The decision emphasized the modern approach to costs in estate litigation, focusing on fairness, proportionality, and reasonableness, and noting that estate trustees are not indemnified for costs incurred defending personal interests or due to unreasonable actions.

This costs endorsement followed an unsuccessful summary judgment motion brought by the defendants.

The plaintiff sought costs totaling $37,358.51, arguing for substantial indemnity from November 19, 2018, due to an Offer to Settle.

The court found the Offer to Settle lacked a true element of compromise and did not trigger substantial indemnity costs.

Applying principles of fairness, proportionality, and reasonableness under the Courts of Justice Act and Rule 57.01, the court awarded the plaintiff $20,000 in partial indemnity costs, inclusive of costs thrown away and disbursements, noting the motion's importance but not its complexity.

The City of Markham brought an application seeking a declaration that AIG had a duty to defend it in an underlying personal injury action, and that the City was entitled to appoint independent counsel at AIG's expense due to a conflict of interest.

AIG conceded the duty to defend but disputed the right to independent counsel, pre-tender costs, and argued Lloyd's should share defence costs.

The court found a reasonable apprehension of conflict of interest, entitling the City to independent counsel.

The court denied pre-tender costs based on policy wording and held AIG responsible for all defence costs, including uncovered claims, subject to a right of reimbursement from Lloyd's.

Following a 10-day jury trial for a motor vehicle collision, the plaintiff was awarded a net judgment of $17,688.64.

The plaintiff sought costs on a partial indemnity basis.

The defendants argued that the costs should be reduced to reflect proportionality, as the recovery fell within the Small Claims Court jurisdiction.

The court rejected the defendants' argument, finding that the plaintiff's decision to proceed in Superior Court was reasonable given the defendants' failure to make any settlement offers.

The court awarded the plaintiff $275,456.60 in costs and disbursements, noting that limiting costs based solely on proportionality would encourage unreasonable positions by defendants.

Alceste Pileggi was convicted of possession of cocaine for the purpose of trafficking.

The court considered aggravating factors, including the quantity of cocaine (1 kg with an estimated street value of $40,000-$65,000) and the financial motivation, and mitigating factors, such as no prior criminal record, strong family support, remorse, and judicial resource savings due to an agreed statement of facts after Charter issues were resolved.

The Crown sought a sentence of five to eight years, while the defence sought three to four years.

The court imposed a sentence of four years and four months, reduced by 13 months for stringent pre-trial bail conditions (25% credit for 26 months), resulting in a balance of three years and three months imprisonment.

Ancillary orders for a DNA sample and a ten-year weapons prohibition were also imposed.

The plaintiffs, Robert and Donna Van Nispen, brought a motion for summary judgment seeking payment of the outstanding purchase price for a business sold to the defendant, McCarron & Chobotiuk Financial Services Inc., and dismissal of the defendant's counterclaim.

The defendant alleged breach of contract, client solicitation, and breach of fiduciary duty by the plaintiffs.

The court found no credible evidence to support the defendant's claims of client diversion or breach of fiduciary duty.

The defendant failed to present sufficient evidence to raise a genuine issue requiring a trial, despite opportunities to file additional material.

Consequently, the motion for summary judgment was granted, and the counterclaim was dismissed.

The appellant, David Loucks, appealed his conviction for assault causing bodily harm.

The appeal was based on four grounds: the trial judge's misapprehension of evidence regarding the appellant's testimony, the failure to admit photographic evidence, the failure to properly scrutinize the complainant's intoxication, and the failure to appreciate the significance of the lack of blood in the home.

The appellate court found that a minor misapprehension of evidence regarding a thumb injury was peripheral to the trial judge's reasoning and did not warrant intervention.

While the exclusion of photographic evidence was an error, it did not amount to a miscarriage of justice as the conviction was based on other credible evidence.

The trial judge was found to have appropriately considered the complainant's intoxication.

The appeal was dismissed, upholding the conviction.

The defendant Aizenstros brought a motion seeking a declaration that the plaintiff Nigeco's construction lien was invalid, arguing it was registered out of time because the contract was either terminated by Aizenstros on June 13, 2017, or abandoned by Nigeco on June 5, 2017.

Nigeco contended the contract was never completed and the lien was validly registered within 45 days of Aizenstros abandoning it.

The court found that the contract was neither abandoned by Nigeco nor terminated by Aizenstros on the dates claimed, as post-purported termination conduct, including a site visit and continued negotiations, indicated an ongoing intention to complete the project.

The court determined the contract was terminated by Nigeco on August 3, 2017, when Aizenstros failed to respond to resolution efforts.

Consequently, the lien was valid, and the defendant's motion was dismissed.

The plaintiff bank brought a motion for summary judgment against the defendant co-applicant for an outstanding credit card balance of $26,067.74.

The defendant argued she never signed the credit card application and that her husband managed the finances.

The court granted summary judgment, finding that under section 68(1) of the Consumer Protection Act, 2002, the defendant was deemed to have entered into the credit agreement by using the card, making her jointly and severally liable for the debt.

The appellant, convicted of driving while disqualified, appealed a 30-day intermittent sentence.

The Superior Court of Justice found that the trial judge erred by overemphasizing general deterrence and failing to adequately consider the appellant's unique medical challenges and potential for rehabilitation.

The appeal was allowed, the intermittent sentence was set aside, and a 30-day conditional sentence with house arrest was substituted, while maintaining the one-year driving prohibition.

The victim fine surcharge was also vacated.

This costs endorsement followed a trial where the plaintiffs, Wayne and Diane Mason, were largely successful in establishing an unpaid purchase price and a vendor's lien against property, despite failing on punitive damages.

The court assessed costs based on offers to settle, parties' conduct, and success at trial, guided by principles of fairness, proportionality, and reasonableness.

The Masons were awarded their costs as sought.

Bluechip Services Inc. recovered costs on a partial indemnity basis.

Robina Khan McCracken and Jozef Zubrzycki were denied costs due to their unreasonable positions and lack of success, which hindered resolution.

The decision details the distribution of funds held in court, including trial awards, interest, and costs.

The applicant, Alceste Pileggi, sought to exclude evidence obtained during a search of his residence and subsequent detention and questioning, alleging breaches of his Charter rights under sections 8 (unreasonable search and seizure), 9 (arbitrary detention), 10(a) (right to be informed of reasons for arrest), and 10(b) (right to counsel).

The police executed a telewarrant for drug trafficking offences, using a forced entry.

The court found no infringement of Pileggi's Charter rights, determining that the telewarrant procedure was justified by impracticability, the forced entry was reasonable given concerns for evidence destruction and officer safety, his detention and handcuffing were not arbitrary, and he was promptly informed of the initial charge.

While there was a delay in accessing counsel, police efforts were reasonable and not deliberate, and Pileggi ultimately spoke with duty counsel.

The application to exclude evidence was dismissed.