Brian Alan Babcock

The decision addresses a motion for production of solicitors’ files in an estate dispute.

The applicant, Gary Brian Prosser, sought production of files, notes, and records relating to real estate transactions and wills of the deceased, Anne Jaun, and the respondent, Rudy Jaun.

The court held that Gary was entitled to Anne’s solicitors’ files but not to Rudy’s, as the latter were protected by solicitor-client privilege and no exception or waiver applied.

The court also found that the applicant had not met the onus to establish a secret trust or a right to the trust documents.

The motion was granted in part, ordering production of Anne’s documents only.

The plaintiffs sought leave to extend the time for service of their statement of claim almost two years after the deadline.

The action alleged breach of a 1993 agreement regarding timber harvesting buffer zones.

The Crown argued the action was a nullity for failure to provide notice under s. 7 of the Proceedings Against the Crown Act.

The court found the plaintiffs' prior correspondence did not constitute proper notice to the Crown.

Furthermore, the plaintiffs failed to rebut the presumption of prejudice caused by the delay in service.

The motion was dismissed and the action against both defendants was dismissed.

The applicant owns two adjacent lots used for aggregate extraction.

The Planning Board took the position that one of the lots was zoned Rural, prohibiting extraction.

The applicant applied for a declaration under the Aggregate Resources Act that no zoning by-law prohibits the operation of pits and quarries on the lot, arguing it had a legal non-conforming use.

The court found that the lot had been used continuously for aggregate extraction since 1952, prior to the zoning by-law, and that the use had not been abandoned or intensified.

The court granted the declaration, confirming the legal non-conforming use.

The plaintiff, a 20-year employee, went on stress leave and never returned to work after her employer hired an individual who had sexually harassed her 12 years earlier.

The plaintiff sued for constructive dismissal and intentional infliction of mental suffering.

The court dismissed the tort claim, finding that while the employer's conduct was flagrant and outrageous, it was not calculated to produce harm.

However, the court found the plaintiff was constructively dismissed because the employer's dismissive response to her concerns made continued employment intolerable.

The plaintiff was awarded 12 months' pay in lieu of notice and $100,000 in Honda damages for the employer's insensitive conduct.

This decision addresses the costs arising from a dismissed motion by two campers' associations to intervene in a proceeding.

Rock Solid Holdings Inc., the applicant in the main proceeding, sought costs.

The court, exercising its discretion under s. 131(1) of the Courts of Justice Act, awarded Rock Solid partial indemnity costs of $7,750 plus HST and disbursements of $829.08.

The court considered Rule 39.02(4)(b) regarding cross-examinations but "ordered otherwise" due to "bald assertions" in the affidavits filed by the proposed intervenors.

The costs were to be paid jointly and severally by the two campers' associations.

Two cottage associations, Trout Lake Campers’ Association and The Surprise Lake Campers’ Association, sought leave to intervene in an application by Rock Solid Holdings Inc. for a declaration regarding zoning for a gravel pit.

The court dismissed the motion for leave to intervene, finding that while the associations had an interest in the subject matter and could be adversely affected, their interests were adequately represented by the Lakehead Rural Planning Board, and their intervention would unduly delay the main application.

The court emphasized the narrow scope of the main application, which concerned only the zoning bylaw and historical use.

The appellant law firm appealed a decision regarding the interpretation of s. 39(6) of the General Regulation under the Health Insurance Act, which dictates how the Ontario Health Insurance Plan shares the legal costs of an insured person who recovers damages including a subrogated claim for the Plan.

The Court of Appeal held that 'the total recovery of the insured person' includes the amount recovered on behalf of the Plan.

Furthermore, the Court clarified that when an insured person recovers costs, those costs must first be deducted from the total legal costs payable to their lawyer before calculating the Plan's proportionate share of the net costs.

On a status hearing motion under Rule 48.14, the moving defendants sought dismissal of a commercial misrepresentation action for delay.

The court held that the plaintiff provided an acceptable explanation for the delay, including difficulties arising from prior counsel's solicitor's lien and file transfer, and that the alleged prejudice was either attributable to the existence of the claim itself or too speculative to justify dismissal.

Balancing the plaintiff's right to a determination on the merits against the defendants' interest in timely litigation, the court declined to dismiss the action.

The parties were ordered to file an agreed timetable or return to the case management judge.

Following dismissal of a motion under s. 47 of the Construction Lien Act seeking to discharge a construction lien as filed out of time, the court determined the appropriate costs award.

The successful lien claimant sought substantial indemnity costs alleging the motion was tactical and should have been abandoned after cross‑examination evidence emerged.

The court held there was no unreasonable conduct or bad faith justifying substantial indemnity and applied the general discretion under the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure.

Considering reasonableness, complexity, the amount in issue, and duplication of lawyer time, the court reduced the claimed partial indemnity fees.

Costs were fixed at $8,000 plus HST and disbursements, payable within 30 days.

During a lawful strike at the plaintiff’s manufacturing facility, the employer sought variation of a prior court order governing picketing and requested an injunction against certain strike activities.

Evidence showed incidents of delay, intimidation, and obstruction at the picket line, including targeted delays of supervisory staff and confrontations with delivery vehicles and bus passengers.

The court emphasized that picketing is constitutionally protected expressive activity but may be limited where unlawful conduct occurs.

Applying the modified interlocutory injunction test for labour disputes, the court held that the threshold requirement of demonstrating unsuccessful reasonable efforts to obtain police assistance had not been met.

The injunction was denied, but the court varied earlier orders to simplify wait‑time rules, expand the pedestrian corridor for bus passengers, and clarify police enforcement obligations.

Solicitors sought declarations regarding the validity of contingency fee agreements and the allocation of legal costs between injured plaintiffs and the Ontario Health Insurance Plan (OHIP) under s. 39 of Regulation 552 to the Health Insurance Act.

The court held the contingency fee agreements did not comply with the Solicitors Act and Regulation 195/04 because they improperly incorporated amounts arising from costs and failed to include mandatory statutory statements.

The court also interpreted the cost‑sharing formula under s. 39(6), concluding that a proportion of costs recovered in the action should be attributed to the plan when determining the plan’s share of taxable costs.

However, the total recovery used in the denominator must include both the plan’s and the injured person’s recoveries.

Declaratory guidance was provided for calculating the plan’s proportional liability for solicitor’s fees.

The defendant subcontractor brought a motion under s. 47 of the Construction Lien Act to discharge the plaintiff's claim for lien, arguing it was filed out of time.

The plaintiff had stopped providing hoisting services to the defendant due to unpaid arrears but continued providing services on the project after the general contractor agreed to pay for them directly.

The court found a genuine issue for trial regarding whether the subsequent services were provided under a continuing contract with the defendant or a new contract with the general contractor.

The motion was dismissed.

The plaintiff brought a motion seeking production of a defence medical examination report and later sought costs after the report was produced following service of the motion.

The defendants argued the motion was unnecessary and that no order for a medical examination had been made under s. 105 of the Courts of Justice Act, rendering rule 33.06(2) inapplicable.

The court held that disclosure obligations could still arise under the broader document production rules and found the defendant failed to produce the report promptly after receiving it.

Although the motion was resolved prior to argument, it was reasonable for the moving party to have brought it.

Partial indemnity costs of $1,000 were awarded, reflecting both the defendant’s delay and the plaintiff’s own failure to comply with an earlier order to set the action down for trial.

Decision on costs following motions by two defendants seeking leave to appeal an interlocutory order permitting the plaintiff to examine a key witness before trial under Rule 36.01(2) of the Rules of Civil Procedure.

The defendants sought over $28,000 in partial indemnity costs after obtaining leave to appeal, arguing the motion involved complex jurisdictional questions and issues of broader importance.

The plaintiff argued the claimed hours and duplication of work by multiple counsel were excessive and that success on the motion was partially divided.

Applying the discretionary framework under s. 131 of the Courts of Justice Act and Rule 57.01, the court held the claimed costs were excessive for a short motion and reduced the award significantly.

The court fixed costs of $3,000 to each of the two successful defendants payable by the plaintiff.

The plaintiffs moved to set aside a registrar’s order dismissing their action for delay under rule 48.14 of the Rules of Civil Procedure after failing to set the action down for trial by a deadline established at a status hearing.

Applying the contextual approach articulated in Court of Appeal jurisprudence, the court considered factors including the explanation for delay, inadvertence in missing the deadline, promptness in bringing the motion, and prejudice to the defendants.

Although the affidavit evidence explaining the delay was limited, the record demonstrated the action had progressed through discoveries and expert reports and that counsel’s failure to meet the deadline was inadvertent rather than deliberate.

The defendants filed no evidence of prejudice and other related actions arising from the same accident remained active.

Balancing the relevant considerations and the principle favouring determination on the merits, the court set aside the registrar’s dismissal order but declined to award costs due to the plaintiffs’ responsibility for the missed deadline.

The appellants appealed a judgment ordering them to pay the respondent $53,765.04 US under a travel insurance policy.

The appellants argued the trial judge erred in interpreting the pre-existing condition exclusion, finding a stress test was not a medical consultation, and refusing evidence on mitigation and Florida law.

The Court of Appeal dismissed the appeal, finding the appellants failed to prove the respondent's angioplasty was caused by his pre-existing hypertension, and upheld the trial judge's findings on the stress test and evidentiary rulings.

The appellants appealed a summary judgment dismissing their claim to an interest in a company.

The appellant, an undischarged bankrupt, argued that his interest should be returned to him under s. 40(1) of the Bankruptcy and Insolvency Act as property incapable of realization, and that the trustee had told him not to disclose the interest.

The Court of Appeal dismissed the appeal, finding that the trustee had not determined the property was incapable of realization, and the appellant's bare assertions about the trustee's advice lacked sufficient detail to raise a genuine issue for trial.

The appeal was dismissed with costs fixed at $9,000.