B. P. O’Marra

The plaintiff brought a motion under Rule 49.09 of the Rules of Civil Procedure to enforce a settlement arising from email exchanges between counsel.

The dispute concerned charitable funds provided to a defendant organization to hold in trust that had not been repaid.

The court found that the emails demonstrated a complete agreement on essential settlement terms and that counsel had ostensible authority to bind the parties.

The defendants’ failure to execute formal settlement documentation did not negate the enforceability of the agreement.

Judgment was granted enforcing the settlement terms, with damages, interest, and costs awarded.

The plaintiffs sought costs after successfully opposing an interlocutory motion by the defendants seeking to stay the action and refer the dispute to arbitration.

Both parties filed extensive materials and the motion occupied most of a court day.

Applying the principles governing costs under Rule 57.01(1) of the Rules of Civil Procedure and the guidance in Boucher v. Public Accountants Council for the Province of Ontario, the court considered the need for a fair and reasonable costs award proportionate to the proceeding.

Given that the plaintiffs were completely successful on a contested and significant motion, the court awarded costs on a partial indemnity basis.

Costs were fixed at $17,750 inclusive of disbursements and HST.

The moving party sought to combine two related actions arising from an insurance claim following a residential fire and to strike the other claimant’s statement of claim.

The actions were brought separately by former spouses asserting competing interests in insurance proceeds.

The court considered Rule 6.01(1) of the Rules of Civil Procedure governing consolidation or joint hearings where proceedings share common questions of law or fact or arise from the same transaction.

Finding that the claims involved overlapping factual issues and competing interests in the same insurance proceeds, the court held that the most expeditious and fair procedure was to have the actions tried together.

The request to strike the other action was not granted, and directions were provided for joint discovery, production, mediation, and potential cross-claims.

The plaintiff commenced a civil action seeking repayment of an alleged unsecured loan dating back to the mid‑1990s, together with interest.

The defendant denied any personal indebtedness and asserted that certain payments referenced by the plaintiff were donations or related to third‑party obligations.

The court considered documentary evidence including cheques, correspondence, and a handwritten acknowledgment dated April 9, 1997, as well as witness testimony regarding the parties’ financial dealings.

The court accepted independent witness evidence that the defendant acknowledged a personal debt in 1997 but rejected certain amounts claimed as personal loans where the payments appeared to be donations to a third‑party organization.

Judgment was granted for the plaintiff in the reduced amount of $17,724 with interest at 21% from September 9, 1997.

Following dismissal of an application challenging confirmation of a Master’s Report after a lengthy trial, the successful party sought costs on a partial indemnity basis.

The court reviewed the reasonableness of the hours claimed for responding to and preparing for the motion, noting that the same counsel had participated at trial and were already familiar with the evidence.

The court held that the preparation time claimed for the motion was excessive and reduced it by half.

Applying the principle that costs awards must be reasonable and reflect parties’ expectations as to quantum, the court fixed a reduced lump‑sum costs award.

Following an application and counter‑application relating to an agreement of purchase and sale, the successful party sought costs on a substantial indemnity basis exceeding $45,000.

The court found the successful party had prevailed entirely, including obtaining an order that the deposit be paid and establishing liability for breach of contract.

However, the issues were primarily contractual interpretation and the facts were largely non‑controversial.

Applying Rule 57.01(1) of the Rules of Civil Procedure and the fairness principle from Boucher v. Public Accountants Council, the court declined substantial indemnity costs.

Costs were awarded on a partial indemnity basis against two opposing parties jointly and severally.

Following a successful trial, the plaintiff sought costs and disbursements against the defendant.

The defendant largely agreed with the plaintiff’s bill of costs but raised objections concerning certain travel expenses and the calculation of prejudgment interest.

The court held that the plaintiff was entitled to airfare to attend the trial but not travel costs for the pre‑trial hearing because participation could have occurred by teleconference.

The court also required proper receipts corresponding with trial dates and adjusted prejudgment interest to reflect a 16‑month period rather than the 19 months claimed.

Subject to those adjustments, the plaintiff was awarded the costs and disbursements set out in the bill of costs.

The plaintiff brought an application for summary judgment under Rule 20.04 of the Rules of Civil Procedure following the defendant’s default on a truck lease.

The defendant did not dispute the default, arrears, or interest calculation but challenged the value credited for the returned vehicle.

The court found the appraisal relied on by the plaintiff to credit $47,000 for the truck was vague and insufficient to determine the proper credit.

As the only genuine issue was the appropriate valuation of the returned vehicle, the court ordered a trial limited to that issue.

The moving parties sought an order converting an application into an action in a dispute between condominium corporations concerning alleged oppressive conduct and administration of a shared facilities agreement.

The responding party argued the matter could proceed by application because the material facts were not disputed and delay would result from conversion.

The court held that the allegations involved complex factual disputes, potential expert evidence concerning building systems and structural issues, and credibility assessments inappropriate for determination on an application record.

Considering Rule 38.10 of the Rules of Civil Procedure and the governing jurisprudence, the court found that the interests of justice and procedural fairness required the matter to proceed as an action.

The defendants applied under Rule 54.09(2) to oppose confirmation of a master's report following a 12‑day construction lien trial.

The master had found that the owner repudiated the construction contract, that performance milestones were implicitly amended due to design and structural changes imposed by the owner, and that the contractor was entitled to damages and a construction lien.

On review, the court applied the appellate standard of review requiring an error in principle or palpable and overriding error.

The court held that the master's factual findings regarding the applicable construction plans, scope changes, and amended milestone sequence were supported by the evidence and entitled to deference.

The application to oppose confirmation of the master's report was dismissed.

On an adjournment appearance following a prior order, the court was asked to resolve two disputed terms of a draft order pending the return of a motion.

The first issue concerned whether defendants could withdraw $500 each or $500 in total per week for living expenses from a corporate bank account subject to court supervision.

The court interpreted the prior order and determined the permitted withdrawal was $500 per week in total for the named individuals.

The second issue concerned a proposed requirement that certain defendants produce monthly bank account statements; the court ordered that provision deleted pending further proceedings.

Costs of the attendance were reserved to the judge hearing the motion on the return date.

The applicant sought to enforce the terms of a settlement agreement accepted under Rule 49 of the Rules of Civil Procedure relating to a family dispute over funds held in a joint bank account and payment of £62,000.

The central dispute concerned whether the settlement required that the applicant be solely entitled to withdraw all funds from the joint account once restrictions were removed.

The court held that the executed settlement did not explicitly provide that the funds would be for the applicant’s exclusive use and that a third party joint account holder, who was not a party to the litigation or settlement, could not be bound by the agreement.

The court therefore declined to interpret the settlement as granting exclusive entitlement to the account funds but enforced the agreed payment and the obligation to arrange removal of restrictions on the account.

Franchisees commenced an action seeking rescission of a franchise agreement and related relief under the Arthur Wishart Act (Franchise Disclosure), 2000, along with damages for negligent misrepresentation.

The defendants moved to stay the proceeding and refer the dispute to arbitration pursuant to an arbitration clause in the franchise agreement.

The court held that several defendants were not parties to the arbitration agreement and therefore could not invoke the stay provisions under s. 7(1) of the Arbitration Act, 1991.

Given the presence of non‑signatory defendants and the risk of delay, duplication of resources, and inconsistent findings, the court declined to order a partial stay.

The motion to stay the action in favour of arbitration was dismissed.

A former employee sought enforcement of a severance settlement reached following termination without cause after the employer refused payment upon later discovering a shortfall in funds related to an employee social committee activity.

The employer conducted an internal investigation and asserted after-acquired cause, alleging theft and material nondisclosure during settlement negotiations.

The court found the investigation inaccurate and unreliable, noting the employee had not admitted theft and the criminal charge had been withdrawn without admission.

The conduct occurred in relation to an informal arrangement unrelated to the employee’s job duties and was accompanied by an intention to repay the funds.

The employer failed to establish just cause or grounds to rescind the settlement.

Following a jury conviction for sexual assault under s. 271 of the Criminal Code, the court imposed sentence for an offence involving penetration and a breach of trust where the offender was the complainant’s stepfather.

The court considered the principles in s. 718.2(e) and the Supreme Court of Canada decisions in Gladue and Ipeelee, including systemic factors affecting Indigenous offenders, based on a detailed Gladue report.

Aggravating factors included the breach of parental trust and the devastating psychological impact on the victim, including a suicide attempt shortly after the assault.

Mitigating factors included the offender’s lack of criminal record, expressed remorse, sobriety since arrest, and prospects for rehabilitation.

A penitentiary sentence at the low end of the range was imposed together with mandatory ancillary orders.

Following a motion concerning whether to set aside a default judgment or reduce an interest rate, the court had awarded costs to the plaintiff.

After judgment, the defendants argued that a prior Rule 49 offer to settle matched the result and therefore disentitled the plaintiff to costs while entitling the defendants to their costs of the motion.

The court held that the cost consequences regime under Rule 49.10 does not apply to motions to set aside default judgments in the same manner as trial judgments.

The defendants therefore could not rely on the offer to alter the costs determination.

The previously ordered costs award in favour of the plaintiff was confirmed.

Third parties in a catastrophic personal injury action moved to set aside a defence filed on their behalf by their insurer’s counsel after the insurer mistakenly assumed the insured had been served with the third party claim.

In fact, the third party claim had never been personally served on the insured homeowner who had relocated abroad.

The court considered Rules 16.01(2), 1.04, 2.01, and 3.02 of the Rules of Civil Procedure and held that the deemed service rule should not apply where the defence was filed based on a mistaken assumption of service.

Emphasizing that procedural rules should not allow form to triumph over substance, the court set aside the defence and granted the defendant six months to attempt personal service of the third party claim.

A housing co‑operative applied for a declaration terminating a member’s occupancy rights and sought arrears and compensation after the member vacated the unit.

The respondent had accrued rent arrears and her membership was terminated by the co‑operative’s board, but she claimed she had vacated earlier and did not owe further charges.

The court found the co‑operative had not been informed that the unit was vacated until March 2014 and was entitled to arrears and compensation until possession was recovered.

The respondent received credit for a security deposit previously paid.

The court granted the declaration, ordered payment of arrears and compensation, and awarded full indemnity costs pursuant to the co‑operative’s bylaws.

A paving contractor sought payment for unpaid invoices relating to asphalt work performed at two Canada Post facilities.

The defendant alleged the work was deficient and counterclaimed for remedial costs, asserting the plaintiff failed to perform the contract as originally agreed.

The court held that the parties had orally varied their written contract at a pre‑construction meeting, changing the scope of work from removal and replacement of asphalt to grinding and repair while maintaining the same price structure.

The court rejected the defendant’s credibility on key issues and found no evidence of complaints from the project owner or of required remedial work.

Judgment was granted for the unpaid balance and the counterclaim was dismissed.

The applicant condominium corporation sought costs following an order requiring the respondent to vacate and sell her unit.

The applicant claimed over $117,000 on a partial indemnity scale or $125,000 on a full indemnity scale, including non-legal charges such as locksmith and security fees.

The court held that non-legal charges are not 'additional actual costs' under s. 134(5) of the Condominium Act.

The court also reduced the claimed legal hours, finding the time spent by a junior associate excessive and largely educational.

Costs were fixed at $58,000 inclusive of disbursements and HST.