Civil Litigation - Plaintiff

This was a costs decision following a successful bifurcation motion by the defendants in a large misfeasance in public office action.

The plaintiff conceded entitlement, hourly rates, and disbursements, but argued that time spent preparing an affidavit was excessive for a procedural motion.

The court declined to second-guess successful counsel's preparation time, finding the affidavit materially helpful and the hours not grossly excessive.

Applying proportionality and reasonableness principles, the court allowed the defendants' bill of costs in full.

The self-represented moving party brought a second motion within six months seeking to lift a stay of proceedings previously imposed pending completion of a related small claims action and payment of outstanding costs.

The court held that the prior costs orders, including those from the small claims action and earlier motions, were a threshold condition to any further consideration of lifting the stay.

The motion was characterized as an impermissible serial attempt to re-litigate issues already decided rather than a timely appeal or proper motion to set aside the earlier orders.

The motion was dismissed, the moving party's request for his own costs was rejected, and aggregate costs of $2,300 were awarded to the responding parties.

The defendant college moved under Rule 21 to strike a student's damages action arising from her withdrawal from a practical nursing program after complaints about social media posts.

The defendant argued the pleading alleged only breaches of procedural fairness and natural justice, which were matters for judicial review rather than a civil action.

Applying the stringent pleadings test, the court accepted the pleaded facts as true, read the claim generously despite poor drafting, and held the allegations disclosed an arguable cause of action in contract and/or tort.

The motion was dismissed, but no costs were awarded because the motion resulted from deficient pleading.

Following a motor vehicle collision, the defendants admitted liability and the jury awarded general damages and future health care expenses.

While the jury was deliberating, the defendants brought a threshold motion under the Insurance Act seeking a declaration that the plaintiff's injuries did not meet the statutory exception for permanent serious impairment of an important physical, mental or psychological function.

The court accepted that the plaintiff had chronic pain and that his condition was permanent, but held the evidence did not establish a serious impairment causing substantial interference with regular training or most usual activities of daily living.

The plaintiff's ability to complete ESL training and continue household activities undermined the claim that the threshold was met.

The motion was granted and the action dismissed.

The applicants sought urgent scheduling of an interlocutory injunction motion in a constitutional challenge to amendments under the Fair Elections Act affecting federal voting procedures, including voter information cards and vouching.

The court held that requests for expedition must balance procedural fairness, potential irreparable harm, and the practicality of a timetable for the parties and the court.

Given the complexity of the Charter issues and the extensive social science and expert evidence, the court declined the very early hearing date sought by the applicants but ordered an expedited case-managed schedule culminating in a two-day motion hearing in July 2015.

This was a costs endorsement following the plaintiff's complete success in enforcing compliance obligations under a co-ownership agreement after the defendant failed to comply with a fire inspection order posing a documented health and safety risk.

The court held that the contractual default provision required the co-owner in default to pay the corporation's losses, liabilities, and reasonable legal costs on a solicitor-and-client basis.

Applying Rule 57.01 together with the agreement, the court awarded the plaintiff full indemnity costs inclusive of HST.

The court emphasized that other co-owners should not bear the expense caused by the defendant's non-compliance.

This costs endorsement followed a refusals motion in which success was divided across eight contested refusals.

The court adopted a per-refusal approach drawn from prior case management directions, using $1,500 per contested refusal as an efficient basis for assessing costs risk and outcome.

Because the responding party succeeded on five refusals, the moving party succeeded on one, and success was split on two, the court fixed costs in favour of the responding party.

Costs were awarded at $6,000 in fees plus HST and $1,525 in disbursements.

The moving defendants sought leave to issue a third party claim for contribution and indemnity against a proposed third party said to have manufactured a component of the crane brake system involved in a motor vehicle accident, or alternatively to consolidate the action with a related contribution and indemnity action.

The court held that, notwithstanding Rule 29.02(1.2), it had no authority to permit commencement of a statute-barred third party claim, and found the claim was discoverable no later than February 23, 2012 and was not advanced within the two-year limitation period under the Limitations Act, 2002.

The court further held that no useful purpose would be served by consolidation because the related actions had already been ordered to be tried together and consolidation would likely add costs through consolidated pleadings.

The motion was dismissed, with costs to the proposed third party.

The plaintiffs sought to preserve assets allegedly traceable to funds stolen by a former controller and bookkeeper.

After disclosure and a Mareva injunction, the defendants asserted that they lacked sufficient funds to pay expenses and legal counsel.

Applying the four-part test for variation of freezing orders, the court held that the defendants failed to provide reliable financial evidence, failed to establish other assets were unavailable, and failed to show the frozen assets were from a non-proprietary source.

The motion was dismissed, with written costs submissions invited.

The moving defendants sought to set aside an order striking their statement of defence and counterclaim, and a subsequent default judgment arising from repeated non-compliance with documentary disclosure obligations and other procedural defaults in a commercial lease action.

The court held that relief was unavailable under rr. 37.14 and 59.06 because the evidence did not establish insufficient notice, accident, mistake, fraud, or newly discovered facts.

Applying the default judgment framework, the court accepted promptness and assumed an arguable defence and counterclaim, but found no plausible excuse for the defaults, found prejudice roughly balanced, and held that setting aside the judgment would adversely affect the integrity of the administration of justice.

The motion was dismissed.

On a Small Claims Court appeal, the appellant challenged the pre-trial dismissal of a $25,000 medical negligence claim arising from alleged negligent treatment causing loss of vision in one eye.

The appeal judge held that the deputy judge improperly treated a Rule 12.02 motion as a summary judgment motion and erred in dismissing the claim based on the appellant's failure to produce expert reports within timelines set at settlement conferences.

The court found the pleading itself was not inflammatory, a waste of time, a nuisance, or an abuse of process, and that dismissal on this basis denied natural justice.

The appeal was granted and the matter remitted to Small Claims Court for a hearing.

The defendant employer moved for summary judgment seeking to strike portions of the reply, bar amendment of the statement of claim, and dismiss the action on the basis that the reply advanced a new wrongful dismissal cause of action outside the limitation period.

The court applied the broader, factually-oriented and purposive approach to whether a pleading asserts a new cause of action, focusing on whether the original statement of claim gave notice of the factual matrix.

The court held that the claim for loss of disability benefits arising from termination was already grounded in the pleaded employment relationship, termination, disability, and alleged breach of the employment contract.

The reply merely answered the defence allegation of termination for misconduct and did not take the employer by surprise.

The summary judgment motion was dismissed.

A bankruptcy trustee sought relief under s. 96 of the Bankruptcy and Insolvency Act in relation to a transfer by an insolvent debtor of her 50% interest in a Toronto property to her business associate.

The court held, on the record before it, that the transferor and transferee were not dealing at arm's length and that one of the transferor's intentions was to defeat her principal creditors, given the surrounding circumstances, the impending bankruptcy, and the treatment of the asset.

However, the court found the valuation evidence insufficient to determine the fair market value of the property at the transfer date and therefore could not decide whether the transaction was a transfer at undervalue.

A summary trial was ordered limited to valuation.

On a motion under Family Law Rule 11(3), the applicant sought to add his former mother-in-law and adult children as respondents and to expand claims arising from alleged misuse of settlement funds and family property following separation and divorce.

The court held there was no limitation period for the support claim against the adult children and permitted that amendment.

The proposed fraudulent conveyance claim concerning one property was found to be governed by a two-year limitation period and was refused as clearly statute barred.

However, the proposed constructive trust and related claims concerning two other properties were allowed because there was a live factual and credibility dispute over discoverability.

The related civil action was ordered transferred to Family Court to be heard together with the family proceeding, subject to the exclusion of the barred Wendell claims.

This was a costs decision following dismissal of a motion to remove defence counsel for alleged conflict of interest.

The court held the defendants were plainly the successful parties because the underlying motion had been dismissed.

The court found no reason to depart from the usual rule that costs follow the event and considered the defendants' prior offer to settle.

Costs were fixed at $6,500 inclusive of disbursements and HST, payable by the plaintiff within 30 days.

In this construction lien costs reference following trial, the successful plaintiff sought more than $298,000 in costs, including substantial indemnity costs after an offer to settle and extensive expert and transcript expenses.

The court held that no settlement offer engaged Rule 49 presumptions in the plaintiff’s favour and, in any event, substantial indemnity costs would have been inappropriate because the plaintiff was unsuccessful on a major quid pro quo claim that materially increased the length and expense of the litigation.

Applying proportionality, the least expensive course principle under the Construction Lien Act, and the general costs factors under the Rules, the court substantially reduced the claimed legal fees and expert disbursements.

Costs were fixed at $137,098.53 inclusive of HST, payable by the defendant to the plaintiff.

The court considered whether an action should be summarily dismissed under Rule 2.1.01 as frivolous, vexatious, or an abuse of process.

Although the pleading appeared deficient, the court held the self-represented plaintiff seemed to be attempting to advance a recognized medical negligence claim against the hospital.

The court was not yet prepared to determine whether Rule 2.1 applied and directed that the remaining defendant be given the plaintiff's written submissions and an opportunity to respond.

The plaintiff also indicated an intention to discontinue against the commission defendant.

On a summary judgment motion arising from a commercial real estate transaction, the court dismissed a counterclaim seeking rescission or $1.5 million in damages based on alleged environmental and structural misrepresentations relating to a former mine site.

The court held the original agreement of purchase and sale, including its warranties, survived closing subject to negotiated changes, but found the purchasers had long possessed the material information about the mine shaft, buried scrap metal, and possible ground instability before closing.

Applying the post-Hryniak summary judgment framework, the court concluded there was no genuine issue requiring a trial because the alleged warranty claim was inconsistent with the purchasers' informed decision to complete the transaction and give a promissory note.

Judgment was therefore granted on the promissory note.

On a summary judgment motion, the defendants argued the plaintiff's motor vehicle tort claim was commenced outside the two-year limitation period.

The court held that, where a claim is subject to the Insurance Act threshold, discoverability requires sufficient medical evidence to indicate a substantial chance of meeting the threshold for recovery.

The plaintiff did not know and ought not to have known within the initial 21 days after the accident that she had sustained a permanent serious impairment.

The limitation defence was dismissed, and the plaintiff obtained partial summary judgment declaring the action timely.

This was a costs decision following dismissal of an interlocutory injunction motion brought against former employees and their new competing company.

The successful defendants sought substantial indemnity costs and relief from the usual offsetting treatment of cross-examination costs under rule 39.02(4)(b).

The court held there was no egregious litigation conduct justifying substantial indemnity costs, but exercised its discretion to award the defendants all of their reasonable partial indemnity costs, including cross-examination costs without offset.

Costs were fixed at $10,000 all inclusive, payable forthwith.