Civil Litigation - Defendant

This is a costs endorsement following the dismissal of the plaintiffs' motion for recusal of the case management judge.

The plaintiffs alleged actual and perceived bias, which the court found to be unsubstantiated.

The defendants sought substantial or partial indemnity costs for their opposition to the recusal motion.

The court awarded the defendants partial indemnity costs, finding their participation necessary and appropriate, and rejected the plaintiffs' arguments for no costs based on access to justice or financial hardship without evidentiary support.

The court declined to award substantial indemnity costs as a reprimand for unsubstantiated bias allegations, emphasizing that costs awards should be reasonable and not punitive.

This decision addresses costs arising from a successful interlocutory injunction motion brought by Wayne and Liana Gendron against the City of Kawartha Lakes.

The Gendrons sought substantial indemnity costs, while TD Bank, a non-party, also requested costs.

The City opposed both requests.

The court awarded partial indemnity costs to the Gendrons, finding the City's opposition to the underlying injunction motion to be without merit.

TD Bank's request for costs was denied, as it was a non-party with a mere "watching brief" whose counsel's attendance added nothing to the argument.

The defendants brought a motion under Rule 2.1.01 to dismiss the plaintiff's action, alleging it was frivolous, vexatious, and an abuse of process.

The court found the action lacked merit and constituted an abuse of process, as the plaintiff, previously declared a party under disability and subject to an order precluding him from bringing actions without leave, had disregarded court guidance and orders regarding his legal capacity and the involvement of the Public Guardian and Trustee.

The motion to dismiss was granted, and the claim was stayed.

The respondents brought a motion seeking a contempt order against the applicant for breaching a disclosure order, an order to set aside restraining orders against Wilfred Abraham, and an order to appoint an inspector for Scorpio Specialty Services Inc. The court dismissed the contempt claim, finding non-compliance but not intentional breach.

It terminated the restraining orders against Wilfred Abraham, concluding they were no longer necessary due to changed circumstances and the applicant's inconsistent positions regarding Abraham's status.

The court granted the request to appoint BDO as an inspector under s. 161(2) of the Ontario Business Corporations Act, finding a prima facie case that the business affairs may have unfairly disregarded security holder interests, with the respondents initially bearing the investigation costs subject to re-apportionment at trial.

The plaintiff sought over $20,000 in enforcement costs, including private investigator fees and legal costs, after obtaining a judgment and cost order against the defendants, who failed to make payments.

The court found it had jurisdiction to award costs beyond Rule 60.19 but deemed the private investigator fees and associated legal costs unreasonable and unnecessary, as an examination in aid of execution was a less expensive and available alternative.

The court awarded $7,139.60 plus HST for execution costs, including property/corporate searches, garnishment issuance, process server fees, and a portion of legal fees.

No costs were awarded for the motion itself due to mixed success.

The applicant, KB Group Inc., sought a declaration that four agreements of purchase and sale for commercial condominium units were terminated and that the individual respondent was personally liable for damages.

The respondents, Dr. Satinder Kaur Saroya Medicine Professional Corporation and Dr. Satinder Kaur Saroya, opposed the termination and personal liability.

The court found that the agreements did not grant the applicant a unilateral right to terminate and were not terminated by the doctrine of frustration.

The court converted the remaining issues of repudiation, promissory estoppel, and illegality of the agreements or a collateral agreement into an action for trial, citing the need for extensive factual findings and the risk of inconsistent findings if resolved by partial summary judgment.

The defendants successfully moved for summary judgment, dismissing the plaintiffs' action based on alleged fiduciary duties related to home insurance and mortgage renewal.

This endorsement addresses the defendants' claims for costs.

TD Canada Trust was awarded full indemnity costs of $19,035 based on contractual terms in the mortgage.

TD Insurance was awarded substantial indemnity costs of $13,840 for the motion due to the plaintiffs' unreasonable conduct in failing to provide evidence, and partial indemnity costs for the action.

The court adjusted claimed fees and disbursements for both defendants, disallowing duplication of effort, unidentified timekeepers, travel costs, and excessive process server expenses.

The applicant, Maryam Rezaee, brought a motion for a mandatory injunction to restore her as manager of a hospitality business, alleging that a corporate restructuring which transferred control to her son, Raymond Zar, was unenforceable due to *non est factum* and constituted oppression.

She also sought alternative prohibitory injunctions.

The respondent, Raymond Zar, brought a cross-motion to remove an existing interim order preventing property encumbrance, arguing non-disclosure of independent legal advice during the *ex parte* application for that order.

The court dismissed Maryam's motion for both mandatory and prohibitory injunctions, finding she did not meet the "strong prima facie case" standard for mandatory relief or the "irreparable harm" standard for either.

The court also dismissed Zar's cross-motion, thereby maintaining the interim order pending the resolution of the Certificates of Pending Litigation motion.

John Przybytek, having successfully obtained an order to discharge an invalid and unconscionable mortgage, sought substantial indemnity costs against 3002071 Canada Inc., 1457563 Ontario Inc., and lawyer Claude-Alain Burdet personally.

The court awarded costs against 3002071 Canada Inc. only, on a substantial indemnity basis, for fees and disbursements incurred up to March 11, 2019, totaling $16,570.00.

The request for costs against Mr. Burdet personally was denied, as the court found that the applicant's own counsel's firm had engaged in similar problematic conduct regarding a second mortgage, creating an ironic basis for the argument.

The court issued a costs endorsement for multiple motions heard on January 9, 2020, in an insurance dispute.

The plaintiffs were awarded partial indemnity costs against AXA and McLeod for successful production motions, and against AXA for a successful motion regarding the "building under construction" exclusion.

The defendants Irvin Hoffman and Cohen & Lord Insurance Brokers Limited also received partial indemnity costs from AXA for their successful motion on the "building under construction" exclusion.

The plaintiffs were awarded substantial indemnity costs against McLeod and the brokers for their unsuccessful summary judgment motions, as the moving defendants acted unreasonably by failing to adduce sufficient evidence on discoverability.

The court fixed specific amounts for each cost award.

The defendants brought a motion to dismiss the plaintiff's claim for non-pecuniary damages following a jury trial in a personal injury action.

The jury awarded general damages but zero for past income loss, future income loss, future housekeeping, and future healthcare costs.

The motion judge, exercising statutory duty to determine the threshold under s. 267.5(5)(b) of the Insurance Act, found that the plaintiff's impairments were not permanent, important, or serious.

The judge considered the jury's implied findings regarding the plaintiff's credibility and the non-permanence of injuries, preferring the defendants' medical expert evidence.

Consequently, the plaintiff's claim for non-pecuniary loss was dismissed.

The court apportioned costs between the defendants following a 39-day trial where the plaintiffs were awarded approximately $12 million in damages.

The Jantzi defendants were found 80% at fault for a motor vehicle accident, and All Star Tap & Grill 20% at fault for over-serving alcohol, with the plaintiff Wesley Hummel 25% contributorily negligent.

The Jantzi defendants argued All Star should bear 80% of post-offer costs due to their refusal to settle, while All Star argued costs should follow the trial's liability apportionment (75% Jantzi, 25% All Star after contributory negligence).

The court considered factors under Rule 57.01 and Section 131(1) of the Courts of Justice Act, including offers to settle and policy limits.

Ultimately, the court ordered the Jantzi defendants to pay one-third of the plaintiffs' costs and All Star Tap & Grill to pay two-thirds, based on their respective insurance policy limits ($1 million for Jantzi, $2 million for All Star).

The plaintiff, Canadian National Railway Company, sought to continue an interim injunction against protestors blockading its main rail line and to compel OPP officers to identify the protestors for contempt proceedings.

The court validated service of the motion record, continued the injunction, finding a serious issue to be tried, irreparable harm, and balance of convenience favoring the plaintiff.

The court also granted leave to examine an OPP officer to identify the protestors, expressing concern over police inaction in enforcing the initial order.

The plaintiff sought summary judgment for wrongful dismissal damages after being terminated without cause.

The court found the employment agreement's termination clause to be unclear and incomplete, thus entitling the plaintiff to common law reasonable notice.

The court awarded 22 months' notice, determining the plaintiff held a senior executive role.

It also ruled that the Ontario Employment Standards Act applied to the calculation of lost benefits, despite the plaintiff working in California, due to an Ontario choice-of-law clause in the agreement, rejecting the defendant's public policy argument.

The valuation of lost benefits was deferred for further resolution, and mitigation income was partially offset by $30,000 USD.

The plaintiff moved to set aside a registrar's order dismissing his action for delay, nearly four years after the dismissal.

The court applied the established principles for setting aside such orders, requiring a reasonable explanation for delay, inadvertence in missing the deadline, promptness in bringing the motion, and rebuttal of prejudice.

The court found no reasonable explanation for the delay, no evidence of inadvertence by the former lawyer, and significant prejudice to the defendants due to the passage of nearly a decade since the incident, impacting witness recollection and the ability to defend.

While the motion was brought promptly after the plaintiff's new counsel discovered the dismissal, the overall delay and resulting prejudice outweighed the plaintiff's plea for indulgence, upholding the principle of finality.

The motion was dismissed.

The father brought motions to adjourn the trial and to increase his parenting time with the child, including overnight access.

The mother opposed the increase in parenting time and requested an update to a s. 30 assessment.

The court granted the adjournment of the trial due to counsel's unavailability and the need for the father to respond to an expert income report.

However, the court denied the father's request to change the temporary parenting order, emphasizing the principle against disturbing temporary orders prior to trial without compelling reasons.

The court also denied the mother's request for an updated s. 30 assessment due to the broken relationship between the father and the assessor, and made specific orders for further disclosure.

The father sought leave to appeal a decision that dismissed his motion to change an access schedule and granted temporary sole custody to the mother.

The original decision required a "material change in circumstances" to vary a "temporary, without prejudice" consent order.

The court granted leave to appeal on the access issue, finding good reason to doubt the correctness of applying the material change test to such orders, and that this issue was of public importance due to conflicting judicial opinions.

Leave to appeal on the custody issue was denied as it was fact-specific and did not raise questions of public importance.

No costs were awarded due to divided success.

The plaintiff, Wylie, brought a motion to amend his Amended Statement of Claim in a wrongful dismissal action.

The proposed amendments sought to increase the prayer for relief and to specifically claim damages for past short-term disability (STD) benefits and past and future long-term disability (LTD) benefits, arguing that the employer failed to provide benefits during the notice period or prejudiced his right to such benefits.

The defendants opposed, arguing that the amendments introduced new causes of action beyond the limitation period and would cause irreparable prejudice.

The court granted the motion, finding that the amendments did not constitute new causes of action but rather provided particulars or different legal conclusions arising from facts already pleaded.

The court also found that any alleged prejudice to the defendants was self-inflicted due to their own actions regarding the plaintiff's termination and benefits.