Bethany McKoy

Following a successful trial where the plaintiff recovered a $1.5M fee and defeated a counterclaim, the plaintiff sought costs of $680,152.55.

The defendant argued the plaintiff's offer to settle was served 1.5 hours late and thus did not trigger the mandatory cost consequences of Rule 49.10.

The court applied a holistic approach under Rule 49.13, finding the offer provided adequate time to assess risk in an all-or-nothing case.

The court exercised its residual discretion and awarded the plaintiff its requested costs.

The case involved a claim by Scotia Capital Inc. against Aphria Inc. for an "Independence Fee" under an engagement letter for financial advisory services in defending a hostile takeover bid, and a counterclaim by Aphria for defamation related to Scotia's discontinuation of analyst coverage.

The court found that Scotia successfully defended Aphria against the takeover bid, entitling it to the Independence Fee.

The court dismissed Aphria's defense arguments of lack of causality and repudiation.

The court also dismissed Aphria's counterclaim for defamation, finding no evidence that the discontinuation of coverage lowered Aphria's reputation or caused economic loss.

The defendant brought a motion to compel the plaintiff to answer questions refused during her examination for discovery in a wrongful dismissal and whistleblower retaliation action.

The questions sought the identities of confidential informants who provided the plaintiff with information about her termination and an internal investigation.

The court upheld the plaintiff's refusals regarding her termination, finding the identities irrelevant.

However, the court ordered the plaintiff to disclose the source of her information regarding the HR director's presentation, as the communication did not meet the Wigmore criteria for common law privilege.

The appellant agreed to sell her home at 45 Moore Avenue, Toronto to the respondents.

Between execution of the Agreement of Purchase and Sale and closing, neighbouring property owners asserted ownership of a two-foot-wide strip of the driveway.

The respondents refused to close, claiming the appellant could not convey clear title to the entire driveway.

The appellant sued for damages; the respondents counterclaimed for return of their deposit.

The motion judge found in favour of the respondents, determining that the APS represented the appellant owned all of what visually appeared to be the functioning private driveway, and that the title defect was significant enough to justify refusing to close.

The appellant appealed, arguing the APS only required sale of a seven-foot-wide driveway (per the 1987 survey) and that any defect was not significant.

The Court of Appeal dismissed the appeal.