Civil Litigation - Plaintiff

Following reasons staying an application under s. 7(1) of the Arbitration Act, 1991 and referring the dispute to arbitration, the successful parties sought partial indemnity costs of over $169,000.

The opposing parties argued that most pre‑hearing work related to issues that would ultimately be determined in arbitration and requested that costs be limited to $7,500.

The court rejected those submissions, holding that parties who refuse to narrow the scope of a hearing cannot later complain about the extent of pre‑hearing work undertaken.

Applying Rule 57, proportionality, and appellate guidance on fixing reasonable costs, the court reduced certain unexplained factum‑drafting time but otherwise accepted the bill of costs.

Costs of $155,292.66 inclusive of disbursements and HST were awarded.

The defendant employer moved for summary judgment dismissing employees’ claims for willful infliction of mental distress arising from alleged workplace sexual harassment and assault by a co‑worker.

The employer argued the claims were barred by full and final releases signed upon termination.

The employees contended the releases were unconscionable and signed under duress, asserting they did not understand that the releases extended beyond severance issues to claims relating to the co‑worker’s criminal conduct and the employer’s alleged failure to protect them.

The court held that material facts were disputed regarding the scope of the releases, the circumstances surrounding their execution, and the employees’ understanding of their legal rights.

Applying the principles in Hryniak and related cases, the court concluded that the record did not permit fair adjudication on summary judgment and that credibility issues required a full trial.

Following a summary judgment dismissing the plaintiffs’ claim against a municipal defendant, the court addressed costs.

The defendant municipality sought costs of the entire action on a partial indemnity basis, arguing it had succeeded in having the claim against it dismissed.

The plaintiffs argued that awarding full action costs was premature because the municipality remained involved through a cross-claim.

The court agreed that it was inappropriate to assess all action costs before trial but held that reasonable partial indemnity costs for the summary judgment motion were warranted.

The court reduced the requested preparation and attendance costs and awarded a portion of the claimed disbursements attributable to the motion.

The defendants moved for a stay of a civil action on the basis of an arbitration clause contained in a later energy supply agreement, or alternatively sought an extension of time to deliver a statement of defence.

The plaintiff alleged that the agreements were void and sought damages for negligent or fraudulent misrepresentation relating to the formation of the contracts, asserting that the agreements were not authorized and were based on misrepresentations regarding energy savings.

The court held that the arbitration clause applied only to disputes “under” the agreement and did not encompass a challenge to the existence or validity of the agreement itself.

As the dispute concerned the validity of the agreements rather than performance under them, it fell outside the scope of the arbitration clause.

The motion to stay the action was therefore dismissed, though the defendants were granted additional time to deliver their statements of defence.

The moving defendants sought summary judgment dismissing the action arising from a fatal motor vehicle collision on the Gardiner Expressway.

The evidence, including a collision reconstruction report and witness statements, indicated that another driver lost control, changed lanes abruptly, and struck the moving defendants’ vehicle while speeding.

The court found no evidence that the moving defendants breached the standard of care of a prudent driver.

Applying the summary judgment principles articulated in Hryniak v. Mauldin, the court concluded that the evidentiary record permitted the necessary factual findings and legal determinations.

The claim against the moving defendants was dismissed and costs were awarded.

A law firm brought a motion under the Solicitors Act to oppose confirmation of an Assessment Officer’s certificate that substantially reduced the firm’s solicitor‑client accounts arising from family law litigation.

The court reviewed the assessment on the standard of error in principle and held that the officer committed several errors, including mischaracterizing the complexity of the matter, improperly relying on the former Costs Grid to reduce agreed hourly rates, rejecting the firm’s team staffing model without evidentiary basis, and criticizing counsel’s skill and competence without expert evidence.

The court found the assessment reasoning arbitrary and result‑oriented.

Rather than remitting the matter for reassessment, the court substituted its own determination of the appropriate fees and disbursements.

The Attorney General sought a preservation order under the Civil Remedies Act in respect of life insurance proceeds payable following the killing of the insured by the beneficiary, who had been found not criminally responsible on account of mental disorder for the homicide.

The respondent opposed the order and sought payment of legal fees from the preserved funds and a declaration recognizing counsel’s solicitor’s lien based on a contingency fee agreement.

The court held that a verdict of not criminally responsible constitutes proof that the offence was committed for purposes of the Act, and that the insurance proceeds were sufficiently connected to unlawful activity to justify preservation.

Delay by the Crown in bringing the application did not meet the narrow “clearly not in the interests of justice” exception.

The preservation order was granted, while requests for payment of legal expenses and recognition of a solicitor’s lien were denied or deferred.

Following dismissal of a defendant law firm’s summary judgment motion in a securities class proceeding, the court addressed costs of the motion.

The plaintiff sought $150,000 in partial indemnity costs, asserting extensive preparation and the importance of the motion.

Applying Rule 57 of the Rules of Civil Procedure and s. 31(1) of the Class Proceedings Act, 1992, the court considered indemnity principles, proportionality, complexity, and the parties’ reasonable expectations.

Because the motion raised novel issues that would ultimately be determined at trial and did not resolve the merits, the court fixed costs but ordered them payable in the cause.

Costs were set at $100,000 all-inclusive on a partial indemnity basis.

A construction company brought a motion for summary judgment seeking damages after its employee fraudulently forged company cheques and deposited them into a third party’s bank account.

The employee forged signatures on twelve cheques and deposited them into the cohabiting partner’s account, from which most funds were withdrawn.

The court held that the tort of conversion is one of strict liability and that depositing funds belonging to another into an account without legal entitlement constitutes conversion, regardless of the account holder’s innocence or lack of knowledge of the fraud.

Summary judgment was granted against both the employee and the account holder for the remaining loss.

The court also declared that the employee’s liability arose from fraud and misappropriation while acting in a fiduciary capacity and would not be released in bankruptcy.

The applicants sought to set aside a share valuation conducted pursuant to a unanimous shareholders' agreement following the exercise of a put right requiring the purchase of their minority shareholding.

The agreement required the valuator to determine fair market value using generally accepted valuation principles and provided that the valuator's determination would be final and binding.

The court held that judicial intervention is limited to circumstances where the valuator fails to comply with the contractual mandate, not merely where alleged valuation errors occur.

Most complaints raised by the applicants related to matters of professional judgment and therefore did not justify court intervention.

However, the valuator failed to comply with generally accepted valuation standards regarding the analysis of working capital.

Rather than setting aside the entire valuation report, the court ordered a limited independent analysis to determine the appropriate working capital adjustment while leaving the remainder of the valuation intact.

The applicant sought to extend an ex parte Mareva injunction freezing certain shares of a Canadian mining company and associated dividend payments pending enforcement of an international arbitration award.

The award, issued under ICSID Additional Facility Rules, required a foreign state to pay damages for unlawful expropriation.

The moving party argued that shares nominally held by a state‑owned enterprise were beneficially owned by the state and risked being moved beyond the reach of enforcement.

The court found a strong prima facie case that the shares were held for the benefit of the state and that there was a real risk of dissipation or removal of assets.

The Mareva injunction was extended for 90 days and the associated dividend payments ordered held in trust.

The defendant moved to set aside a default judgment arising from a motor vehicle accident action in which the plaintiffs obtained judgment following an undefended trial.

The court considered whether service of the statement of claim was regular and proper under an order for substituted service and whether the defendant satisfied the three-part test under Rule 19.08 of the Rules of Civil Procedure.

The court found the plaintiffs complied with the substituted service order and the defendant failed to rebut the presumption of proper service.

The defendant also failed to provide a plausible explanation for the default or establish an arguable defence on the merits.

The motion to set aside the default judgment was dismissed.

The defendants brought a motion seeking production of the plaintiff’s former counsel’s litigation file, including time dockets, and an order requiring the plaintiff’s witnesses to re-attend cross-examinations in relation to a pending motion alleging that the action had previously been settled.

The defendants argued that references in the plaintiff’s affidavits waived privilege over the lawyer’s file.

The court held that the affidavits merely described the plaintiff’s settlement position and instructions to counsel and did not constitute a waiver of solicitor-client privilege.

While time dockets may in principle be producible subject to redactions for legal advice, the court found the additional dockets sought were not relevant to the issue of whether the parties had reached a binding settlement agreement.

The motion for production and continued cross-examinations was dismissed.

The estate of a deceased shareholder brought a motion under Rule 59.06(2) of the Rules of Civil Procedure to vary a prior order requiring the deceased to purchase the other shareholder’s interest in a corporation owning a Hamilton property.

Following the shareholder’s death, the estate argued that the original premise of the order—his intention and ability to develop the property—could no longer be fulfilled.

The court held that the death constituted a new fact arising after the order that could not have been discovered with reasonable diligence.

Given that the estate lacked the capacity or intention to pursue development, the court varied the prior order and directed that the property be listed for sale on the open market.

Requests by the responding shareholders for historical costs and appraisal expenses were denied.

Following dismissal of a motion seeking removal of the plaintiff’s solicitor for alleged conflict of interest, the court addressed costs.

The plaintiff sought substantial indemnity costs of $6,700, while the defendant argued the time spent was excessive.

The court held that costs should follow the event and that the unsuccessful party should ordinarily pay costs.

Although the motion lacked merit, the court declined to award substantial indemnity costs and instead fixed costs at a reduced amount.

The plaintiff brought a motion seeking leave to issue certificates of pending litigation (CPLs) against two Toronto properties, asserting a constructive trust based on alleged unjust enrichment after paying mortgages and expenses on behalf of the defendants.

The defendants argued that rents collected by the plaintiff exceeded the payments made and that no unjust enrichment occurred.

The court held that there was a triable issue regarding whether the plaintiff had been fully reimbursed and whether a constructive trust could be imposed.

However, the court declined to grant a CPL on one property because it had been sold and the proceeds would not satisfy the mortgage.

Leave to issue a CPL was granted only with respect to the Carlaw Avenue property.

Following a motion to vary a prior order permitting two defence neuropsychological examinations, the court had previously concluded that the defendants failed to disclose a settlement agreement eliminating their adversity on liability.

The order was varied to allow only one examination, and the court considered the appropriate costs consequences of the defendants’ breach of their duty to immediately disclose the agreement.

The plaintiffs sought elevated costs given the defendants’ non‑disclosure and the procedural consequences that followed.

The court held that full indemnity costs were justified as a “consequence of the most serious nature” arising from the breach, even though the conduct was not found to be reprehensible.

Costs of $27,000 inclusive of disbursements and HST were fixed as fair, reasonable, and proportionate to the complexity and importance of the issues.

Multiple defendants brought motions seeking security for costs against a plaintiff who was ordinarily resident outside Ontario in two related civil actions.

The plaintiff argued impecuniosity and contended that an order for security would effectively drive him from the litigation.

The court held that the plaintiff failed to meet the high evidentiary threshold required to establish impecuniosity because he provided outdated financial disclosure and did not produce complete, current documentation regarding income, assets, liabilities, and borrowing capacity.

Finding the requested security amounts reasonable given the anticipated complexity and duration of the litigation, the court ordered the plaintiff to post security for costs in both actions, failing which the proceedings would be stayed.

The defendant organization moved to dismiss a personal injury action on the basis that the claim against it was commenced outside the applicable two‑year limitation period.

The plaintiffs had initially sued another party following a slip and fall at a fundraising skating event and later added the moving party after learning of its potential involvement through a third‑party claim.

The court considered the discoverability principles under s. 5 of the Limitations Act, 2002 and whether reasonable due diligence would have revealed the moving party’s role earlier.

The court found there was no trigger that would reasonably have alerted the plaintiffs to the moving party’s involvement in the ice rink setup prior to receiving the third‑party claim.

As a result, the limitation period had not expired and the action could proceed.

Following dismissal of a commercial action, the successful defendant sought substantial indemnity costs after making a Rule 49 offer to settle.

The court held that where a defendant’s settlement offer involves payment and the action is dismissed entirely, Rule 49 does not automatically permit substantial indemnity costs.

Relying on appellate authority limiting earlier jurisprudence, the court concluded substantial indemnity costs are only appropriate where egregious conduct is demonstrated.

While the defendant’s legal rates were reasonable, the court found some time spent excessive.

Applying the factors in Rule 57.01, the court fixed a reduced partial indemnity costs award including disbursements.