Civil Litigation - Plaintiff

In this amended preliminary costs decision arising from a property title and access dispute, the plaintiffs sought a substantial costs award after being largely successful at trial and defeating most of the defendant's counterclaim.

The court held that the successful litigant principle, proportionality, the complexity and importance of the issues, and the limited impact of withdrawn alternative arguments supported an award of costs.

The court rejected the responding party's position that no costs should be awarded and fixed the appropriate scale as partial indemnity.

The quantum was deferred to an assessment after production of dockets and proof of disputed disbursements.

The insurer moved for summary judgment dismissing the plaintiff's claim under unidentified automobile coverage arising from a multi-vehicle collision involving an alleged unknown driver.

The court applied the Rule 20 framework and held the evidentiary record was insufficient to determine that one of the identified defendants would necessarily be at least 1 percent liable, particularly where the insurer relied on a deficient affidavit and the other defendants expressly denied liability.

The court found a genuine issue requiring a trial and declined to use the enhanced fact-finding powers.

The court also rejected the insurer's alternative proposals to abstain from mandatory litigation steps or to be dismissed without prejudice, and awarded the plaintiff costs.

The plaintiff sought judgment on two promissory notes arising from advances totalling $100,000.

The defendant admitted receiving the funds but argued they were an investment tied to the outcome of his dispute with the tax authorities and not yet payable.

The court held the promissory notes, drafted by the defendant's accountant and signed by the defendant, were the best evidence of the parties' agreement and established a promise to repay within 24 months.

Judgment was granted for $99,500, together with partial indemnity costs and pre-judgment interest at the default statutory rate after the initial two-year interest-free period.

The applicant sought a declaration and rectification of title to reflect an express right of way over the respondent's servient lands that had been granted under the Registry Act but omitted from the servient parcel register when the lands were administratively converted to Land Titles.

The court held that the respondent acquired only LT Conversion Qualified title and was subject to the overriding interests preserved by s. 44(1) of the Land Titles Act, including easements, despite the omission from the servient register.

Relying on the statutory scheme and analogous authority concerning administrative conversion errors, the court found the right of way ought to have been noted and ordered rectification.

The order was made without prejudice to any future action alleging abandonment or extinguishment of the easement.

In a receivership, the court gave advice and directions on competing claims to a travel lift between an owner-lessor and a secured lender with a general perfected security interest.

The court held that the lease was, in substance, a financing arrangement that secured payment for the equipment and therefore fell within s. 2(a) of the Personal Property Security Act.

Because the lessor failed to perfect its security interest, its claim was subordinate to the lender's perfected security interest under s. 20(1)(a)(i).

Any alleged pre-receivership termination of the lease, or contractual language purporting to end the debtor's rights on default, did not displace the prior-ranking secured creditor's rights under Part V of the PPSA.

The defendants moved for summary judgment dismissing a fraudulent conveyance action arising from a transfer of farm property allegedly made to defeat unresolved family law support and proprietary claims, and the plaintiff cross-moved for leave to amend to plead constructive trust and tracing remedies.

The court held that an unresolved support claim under the Family Law Act provided standing as a 'creditor or other' under s. 2 of the Fraudulent Conveyances Act.

It further held that an FCA action seeking to set aside a conveyance of real property is an action to recover land governed by s. 4 of the Real Property Limitations Act, attracting a ten-year limitation period rather than the two-year period under the Limitations Act, 2002.

The action and proposed amendments were therefore not statute-barred.

The defendants' motion was dismissed and the plaintiff's cross-motion was granted.

This was a costs endorsement following a six-day trial in which the applicant obtained a $20,000 award on an unjust enrichment claim.

The court held the applicant was the successful party notwithstanding that he claimed $60,000 and recovered less.

The court also recognized that a self-represented litigant may receive reasonable compensation for work personally performed, but reduced the amount sought to reflect documentary issues that caused trial time to be lost.

Costs were fixed at $8,500 inclusive of fees, disbursements and HST, payable forthwith.

This was a costs decision following dismissal of an application for partition and sale of jointly held property, with a prior order requiring the respondents to pay the applicant $13,000 from any future sale or refinancing.

The applicant sought costs up to the date of the respondents' settlement offer, but the court held the respondents were wholly successful on the real issue: preserving the property's equity and restraining enforcement of bare legal title.

Applying the fair and reasonable costs principles under s. 131 of the Courts of Justice Act and Rule 57.01, the court fixed the respondents' costs at $13,000 on a partial indemnity basis.

The court set that amount off against the applicant's prior $13,000 recovery so that the formal judgment would simply declare the respondents' ownership and dismiss the applicant's claims.

The defendant Ministry moved to strike a negligence claim arising from the death of a child at an unlicensed private-home daycare after the Ministry had received multiple complaints about excessive numbers of children and had sent a warning letter but allegedly failed to follow up.

The court held that on a motion to strike it was required to accept the pleaded facts as true and determine only whether it was plain and obvious the claim could not succeed.

Applying the duty of care framework and authorities on proximity in claims against public actors, the court found it was arguable that the pleaded facts could establish proximity and foreseeability sufficient to support a private law duty of care.

The claim was novel, but the uncertainties could not be resolved at the pleadings stage and required a full record at trial.

The plaintiff sought summary judgment against a bank for conversion after sale proceeds from her home were used to obtain a bank draft payable to the bank and deposit it into a third party's line of credit.

The bank cross-moved for summary judgment dismissing the action.

Applying the banking conversion principles and the summary judgment framework, the court held the bank was entitled to accept a draft payable to itself and apply it to a debt owed by its customer.

Any fraud in inducing the plaintiff to obtain the draft may have supported claims against other participants, but not against the bank.

The plaintiff's motion was dismissed, the bank's motion was granted, and the action against the bank was dismissed.

The defendants moved for summary judgment dismissing a commercial dispute arising from a failed business relationship and an Asset Allocation Agreement concerning several development properties.

The moving parties argued the claim was answered by the agreement or was statute-barred under the Limitations Act, 2002.

The court held the matter was not suitable for summary judgment because the evidentiary record disclosed numerous genuine issues for trial, including unpleaded rescission-related allegations and intertwined disputes across several related proceedings.

The motion was dismissed, and the court indicated a present intention to award no costs because the responding party had helped provoke the motion through deficient pleadings.

On a registrar-referred Rule 2.1 review, the court considered a claim against the Crown for malicious prosecution arising from provincial offence charges withdrawn in 2000.

The record disclosed multiple prior proceedings arising from the same underlying prosecution, including dismissals based on res judicata and appellate affirmance.

The court held that the pleading appeared on its face to be an abuse of process and directed that notice issue inviting written submissions on dismissal.

Pending that process, the action was stayed under s. 106 of the Courts of Justice Act and no further filings were permitted except the responding party's written submissions.

On a Rule 2.1 screening request brought by the defendants, the court held that a civil action alleging negligent corruption, abuse of authority, constitutional breaches, and police failure to investigate appeared on its face to be frivolous, vexatious, or an abuse of process.

The pleaded complaints all arose from the handling of another court proceeding and were required to be addressed within that proceeding rather than through a fresh action.

The court further noted there is no private right of action against police for failing to investigate a particular crime.

Notice under Form 2.1A was directed to issue, the plaintiff was invited to make written submissions, and the action was stayed pending the written hearing.

Following summary judgment concerning sham property transfers designed to defeat creditors, the successful plaintiff sought full indemnity costs against two defendants based on reprehensible conduct in the litigation and underlying fraudulent dealings.

The court held this was a rare case where the successful party should bear none of the expense of pursuing justice, given the fabrication of a defence, abusive conduct, stalling, and untrue evidence.

Full indemnity costs of $121,523.99 inclusive of disbursements and taxes were awarded jointly and severally against the two defendants who acted in concert.

The court further held that s. 45(1) of the Bankruptcy and Insolvency Act applied to one defendant’s liability for costs in relation to the properties at issue.

The plaintiff sought a declaration arising from a 50/50 partnership agreement to purchase an investment property.

The defendant argued that the plaintiff had agreed to withdraw in exchange for the return of his share of the deposit.

The court rejected that position on the evidence, finding it improbable that the plaintiff would abandon a lucrative venture and concluding that the surrounding circumstances supported the plaintiff's account.

The court granted a declaration that the plaintiff held a 50 percent ownership interest in the property, subject to payment of an amount to be determined by the local Referee, including assessment of purchase and carrying costs.

Following success on a summary judgment motion and dismissal of the plaintiffs' cross-motion, the defendant sought costs primarily on a substantial indemnity basis.

The court accepted the defendant's submissions that the litigation involved serious unproven allegations and that the contractual documents supported recovery of legal costs on a solicitor and own client basis, while declining to rely on one incomplete evidentiary submission regarding the plaintiffs' conduct.

Applying the Rule 57.01 factors and the governing reasonableness and fairness principles, the court awarded the full substantial indemnity amount requested.

The moving defendant sought to bifurcate the action so that the plaintiff's successor liability claim against it would be determined before the negligence and related claims against the remaining defendants.

Applying the governing bifurcation principles, the court held that bifurcation is an exceptional remedy available only in the clearest cases where the preponderance of factors favours severance and the proceeding will more likely than not be resolved justly, expeditiously, and inexpensively.

The court found the successor liability issue was not simple, the case was not extraordinary merely because it involved a novel American doctrine, and any clear advantage or costs savings were largely limited to the moving defendant.

The proposed procedure would also create delay, multiplicity of proceedings, and prejudice to the plaintiff.

The motion was dismissed, with costs to the plaintiff on a partial indemnity basis.

The plaintiff mortgagee brought a summary judgment motion seeking sale of the mortgaged property, possession, and payment of the mortgage debt after default on a third mortgage.

The defendant argued there were triable issues concerning the amount advanced, the purpose of the mortgage, related mortgage transactions, and his alleged inability to understand the transaction due to disability.

Applying the post-Hryniak summary judgment framework under Rule 20, the court found the record sufficient to determine that the mortgage funds were advanced as directed, the mortgage was in default, and the psychiatric report did not support incapacity.

The court also found no evidence supporting the counterclaim for damages tied to another mortgage transaction.

Summary judgment was granted.

In this personal injury action arising from a motor vehicle accident, the moving defendant sought leave after the action had been set down for trial to bring a motion compelling the plaintiff to attend a defence psychiatric examination shortly before a scheduled jury trial.

The court held the defendant knew or ought to have known for years that serious psychological impairment was being advanced and that the recent report did not amount to a substantial or unexpected change in circumstances.

The court found the late request risked imperilling the long-scheduled trial and would unfairly prejudice the plaintiff, while any prejudice to the defendant was self-induced.

Leave and the requested examination order were refused.

Following a wrongful dismissal judgment, the court released an addendum correcting the pre-judgment interest rate from the post-judgment rate to the proper statutory pre-judgment rate under the Courts of Justice Act.

On costs, the successful plaintiff sought substantial indemnity costs based on offers to settle, but the court held rule 49.10 was not triggered because the judgment was not as favourable as the operative offer.

The court nevertheless considered the offers under rule 49.13, but reduced costs to reflect the plaintiff's unsuccessful assault, human rights, punitive, and aggravated damages claims and to disallow certain disbursements.

Partial indemnity costs of $24,053.70 were awarded against one defendant only, with no costs for or against the bankrupt individual defendant.