Bruce Robertson

Following dismissal of a motion seeking leave to issue a certificate of pending litigation (CPL), the successful party sought costs on a full indemnity basis.

The court considered the discretionary framework for costs under the Courts of Justice Act and the Rules of Civil Procedure, including the principles of proportionality and fairness.

While the successful party argued the opposing party unnecessarily lengthened the motion and improperly registered cautions on title, the court found no reprehensible conduct justifying elevated costs.

The requested costs were also found to be excessive for the nature of the motion.

Costs were therefore fixed at a reduced amount on a partial indemnity basis.

The plaintiff moved for leave to issue a certificate of pending litigation over a residential redevelopment property, alleging an oral joint venture agreement granting him an interest in the land.

The defendant denied the existence of any joint venture and argued the plaintiff acted only as a real estate agent.

The court found the plaintiff met the low threshold of establishing a triable issue regarding an interest in land.

However, after considering additional equitable factors—including lack of property uniqueness, the investment nature of the purchase, the availability and ease of calculating damages, and the existence of an alternative damages claim—the court concluded a CPL was not appropriate.

The balance of convenience did not favour registration, and the motion was dismissed.

In an estate dispute between siblings, the estate trustee moved to dismiss an application requiring an accounting of estate assets on the basis of delay.

The delay resulted largely from the applicant’s former lawyer, who had misled the client and failed to advance the proceeding while suffering from severe personal and mental health issues.

The court held that the delay was adequately explained, the applicant intended to pursue the claim, and the moving party had also failed to take steps to advance the matter or his own related motion regarding a purported will.

The court further found no non-compensable prejudice resulting from the delay.

Exercising its discretion, the court declined to dismiss the application.