Civil Litigation - Defendant

This endorsement addresses the issue of costs following a largely successful summary judgment motion brought by the defendants.

The defendants sought $26,687.94 in partial indemnity costs.

The plaintiff, M.W., argued for a significant reduction to $8,807.02, citing modest means and the defendants' partial, rather than complete, success.

The court acknowledged the plaintiff's arguments but found the proposed reduction too substantial.

Considering the defendants' "large part" success on the summary judgment motion, the volume of materials filed, and a comparative case, the court exercised its discretion to award the defendants $25,000.00 in all-inclusive partial indemnity costs.

A mortgage broker appealed the dismissal of its negligence claim against the Crown arising from fraud perpetrated by an individual who filed a fraudulent notice of change with the Ministry of Government and Consumer Services, falsely identifying himself as a director and officer of a corporation.

The appellant relied on a corporation profile report obtained from the Ministry when advancing $1.8 million in loans.

The Court of Appeal upheld the dismissal, finding that no duty of care arose at the first stage of the Anns/Cooper test.

The governing legislation did not contemplate a private law duty of care, and the payment of a fee for access to public corporate records was insufficient to establish proximity.

This is a costs endorsement addressing the allocation of costs for certification and summary judgment motions in the Superior Court and the costs of the appeal to the Court of Appeal for Ontario.

The plaintiffs appealed from orders of Justice Paul M. Perell denying certification and granting summary judgment.

On appeal, the plaintiffs achieved partial success: they obtained certification on some common issues but not on their negligent misrepresentation claim, and they reversed summary judgment on some claims while others remained time-barred.

The Court of Appeal awarded costs to the plaintiffs reflecting their overall success.

The appellants sought to review an order dismissing their motion to set aside a default judgment.

The original action arose from a purchase of equipment in November 2007, with default judgment obtained in March 2011.

The appellants delayed over three years before bringing a motion to set aside the default judgment, which was dismissed by the motion judge.

The appellants then appealed but failed to perfect their appeal, resulting in dismissal for delay in April 2015.

After over three years of inaction, they brought a motion to review the dismissal order.

The Court of Appeal upheld the dismissal, finding the delay extraordinary and the equities of the situation favored dismissal despite the appellants' arguable defences on the merits.

This is a costs endorsement following a successful appeal by the defendants.

The appellants were entitled to costs on a full indemnity basis for the motion and proceedings below, with Corus Entertainment Inc. awarded $30,000 and the McSloy appellants awarded $30,000, both inclusive of taxes and disbursements.

On the appeal itself, the appellants were successful and entitled to costs on a partial indemnity basis, with Corus awarded $15,000 and the McSloy appellants awarded $15,000, both inclusive of disbursements and taxes.

The request for damages under section 137.1(9) of the Courts of Justice Act was denied.

This is a costs endorsement on appeal from a Superior Court of Justice order.

The appellants appealed a decision and the Court of Appeal addressed the application of cost presumptions under the Court of Justice Act.

The court held that the statutory cost presumptions in s. 137.1(7) and (8) do not apply on appeal, as the statutory language does not expressly refer to costs on appeals.

However, the court exercised its discretion to apply the presumption for the motion costs and awarded the appellants costs on a full indemnity basis for the motion and on a partial indemnity basis for the appeal.

Appeal from a Superior Court decision on a motion under section 137.1 of the Courts of Justice Act.

The appellant brought multiple motions, including a successful section 137.1 motion but also unsuccessful constitutional and procedural motions.

The Court of Appeal addressed costs for both the motion and the appeal.

On the motion, no costs were awarded due to the presumption in section 137.1(8) and the offsetting effect of the appellant's unsuccessful meritless motions.

On the appeal, the appellant was awarded partial indemnity costs reduced to account for time spent on unsuccessful constitutional and procedural arguments.

The respondents successfully appealed the lower court decision.

The Court of Appeal awarded costs on a full indemnity basis, fixing costs at $40,000 inclusive of taxes and disbursements.

The court found that the suit had the markings of a true SLAPP (Strategic Lawsuit Against Public Participation) and did not apply the presumption in section 137.1(7) of the Courts of Justice Act on appeal, but considered the nature of the suit in fixing costs.

The appellant, a former employee of the Ministry of Community and Social Services, appealed an order from the Superior Court that restricted her ability to commence legal proceedings.

The order prohibited her from initiating or continuing any civil or criminal proceedings without prior authorization from a Superior Court judge.

The appellant had engaged in extensive litigation across multiple forums, filing numerous civil actions, private informations, and peace bond applications, all of which were dismissed or withdrawn.

The Court of Appeal upheld the restriction on civil proceedings under section 140 of the Courts of Justice Act but struck down the restriction on criminal proceedings, finding that the Superior Court lacked the inherent jurisdiction to prevent access to justices of the peace for private informations and peace bond applications.

The appellants appealed a motion judge's decision granting judgment in the amount of $55,555.55 in accordance with a Rule 49 offer to settle.

The appellants claimed the offer had been revoked before acceptance, arguing it was revoked orally at a pretrial conference and subsequently by a second written offer.

The respondent contended the first offer had not been effectively revoked and that acceptance occurred before service of the second offer.

The Court of Appeal upheld the motion judge's decision, finding that Rule 49 offers can only be revoked in writing, and that the respondent's acceptance of the first offer preceded service of the second offer based on credible evidence and the appellants' failure to provide an affidavit of service.

The appellants sought to set aside an order of the Deputy Registrar dismissing their appeal for delay and to extend the time for perfecting the appeal.

The underlying motion had resulted in the striking of the appellants' statement of defence due to their failure to comply with a discovery plan order.

The appellants did not attend the motion before the motion judge and did not file materials.

The Court of Appeal dismissed the motion on two grounds: first, the appellants were in the wrong court as they had failed to exhaust their remedies in the court of first instance under Rules 37 and 19; and second, even if the court had jurisdiction, the appellants failed to meet the test for setting aside the Deputy Registrar's order, as the delay was long and largely unexplained, prejudice to the respondent was evident, and there was no merit to the underlying appeal.

The applicant sought an order setting aside a decision by Doherty J.A. dismissing his motion for leave to intervene as an added party in an appeal.

The applicant claimed to be the effective alter ego of the appellants and sought to adduce evidence he characterized as important and not previously presented.

The court found that the applicant had not satisfied the threshold criteria under Rule 13.03(1) for intervention as an added party, noting that the arguments he sought to make were more properly made by the appellants through their counsel.

The motion was dismissed.

The appellant sought an adjournment of the appeal to allow newly retained counsel to review the file and prepare a new factum focusing on the mental impairment issue, which had not been addressed by the trial judge.

The respondent opposed the adjournment but offered alternative conditions including payment of costs thrown away.

The court granted the adjournment on conditions including payment of costs within 14 days, counsel going on record within one week, and filing of a new factum within 30 days.

The appellant appealed a summary judgment dismissing his claim against his former lawyer and law firm on the basis that the claim was statute barred under section 4 of the Limitations Act, 2002.

The motion judge found that the appellant discovered the material facts giving rise to his claim no later than February 3, 2014, and that the statement of claim issued on March 2, 2016 was therefore outside the two-year limitation period.

The Court of Appeal upheld the motion judge's findings and dismissed the appeal, awarding costs to the respondents.

Nathalie Murray sought spousal and child support from Robert Bortolon, requesting a significant income imputation to him.

Her child support claim also relied on Robert standing in the place of a parent to her two sons.

Robert primarily sought an equalization payment and claimed a proprietary interest in the matrimonial home.

The court dismissed Nathalie's claims for child and spousal support, finding Robert did not stand in the place of a parent and that Nathalie had no legal basis for spousal support.

The court also found no basis to impute a higher income to Robert.

Robert's claim for a proprietary interest in the matrimonial home was dismissed.

Ultimately, Nathalie was ordered to pay Robert an equalization payment of $5,816.

In a negligence action concerning alleged property damage caused by a gas shutoff, the defendant utility brought a motion under Rule 31.10 of the Rules of Civil Procedure seeking leave to examine two non‑party witnesses who serviced the property’s heating system.

The witnesses had created conflicting documents regarding service dates and billing records, raising questions about whether the gas supply had been shut off at the time alleged.

The court held that examinations of the non‑parties were necessary because they were the only individuals able to clarify key factual issues regarding furnace maintenance and the creation of the disputed records.

The defendant was granted leave to examine the non‑party witnesses.

The plaintiff’s motion for further production of records was granted in part, requiring production of certain account and procedural records, while her request to examine the defendant’s employees was dismissed.

The applicant sought a declaration that her homeowner’s insurer owed a duty to defend counterclaims alleging negligent supervision of a child that resulted in injury to her son.

The counterclaims arose after the family sued third parties for injuries sustained by the child, and those defendants sought contribution and indemnity against the applicant.

The insurer denied coverage relying on a policy exclusion for bodily injury to the insured or any person residing in the insured’s household.

The court held that the exclusion, read together with the policy’s liability coverage provisions, clearly removed coverage for claims relating to bodily injury suffered by a household member.

Because the injured child fell within the policy definition of “you”, the insurer had no duty to defend the counterclaims.

Following a wrongful dismissal trial, the only remaining issue concerned the quantum of partial indemnity costs payable by the employer to the employee.

The employee sought over $455,000 in costs, including a large disbursement for services provided by a corporate entity associated with a lay witness who assisted counsel and testified at trial.

The court found several categories of claimed legal fees excessive, particularly for pleadings and trial preparation, and held that the defendant should not bear the cost of premium legal services retained by the plaintiff.

The court also significantly reduced the claimed disbursement for the lay witness’s advisory services, noting that much of the evidence was rejected and the invoices lacked sufficient detail.

Fees and disbursements were therefore substantially reduced.

The moving defendants sought to transfer two related medical negligence actions from Toronto to London, Hamilton, or Milton under Rule 13.1.02(2) of the Rules of Civil Procedure.

The claims arose from alleged latex exposure during medical treatment in London and Ancaster, and the defendants argued that the events and witnesses were primarily located outside Toronto.

Applying the holistic analysis of the enumerated factors under Rule 13.1.02(2), the court considered the location of events, convenience of parties and witnesses, court availability, litigation costs, and other relevant circumstances.

The court concluded that the moving parties failed to demonstrate that any proposed venue was significantly better than the plaintiff’s chosen venue.

The motion to transfer the actions was dismissed.

The plaintiffs appealed an order of a case management master requiring them to post additional security for costs in complex civil litigation.

The plaintiffs were non-residents of Ontario and did not claim impecuniosity, but argued that the strength of their claims justified denying security for costs.

The court held that the master applied the wrong legal standard by requiring the plaintiffs to show an "overwhelming likelihood of success" rather than the correct standard of a "good chance of success" when assessing the merits under Rule 56.01 of the Rules of Civil Procedure.

Because this constituted an error of law, the appeal was allowed in part and the matter was remitted to the case management master for reconsideration using the proper standard.