C. A. Tucker

Following a successful foreclosure claim on a mortgage in default, the plaintiff sought costs on a substantial indemnity basis pursuant to the mortgage terms.

The plaintiff claimed $47,075 in legal fees, while the defendant argued for approximately $21,000 on a partial indemnity basis and challenged several bill of costs entries.

The court considered the complexity of the litigation, including limitation issues and the time gap between the debt, mortgage, and enforcement proceedings.

Although the court accepted that substantial indemnity costs were appropriate, it found portions of counsel’s preparation time for discovery and trial excessive.

The court fixed costs at $35,000 on a substantial indemnity basis plus disbursements and HST.

The accused, a tow truck operator, was charged with criminal negligence causing death after parking his flatbed tow truck partially in the fast lane of Highway 403 to assist a stranded motorist.

A driver travelling in the fast lane struck the rear of the tow truck and was killed instantly.

The court assessed whether the accused's actions constituted a marked and substantial departure from the standard of care of a reasonable tow truck operator.

After considering expert testimony on towing industry standards and human factors, the court found that the accused's actions, while risky, fell within accepted industry practices and did not amount to a wanton or reckless disregard for the lives and safety of others.

The accused was found not guilty.

The respondent was successful on appeal and sought costs on a partial indemnity basis in the amount of $9,458.72.

The appellant challenged the amount based on proportionality.

The Divisional Court fixed costs at $6,000 inclusive of disbursements and HST, noting the appeal was not complicated and took half a day to argue.

Following a successful motion striking the plaintiff’s statement of claim, certain defendants sought costs including substantial indemnity costs.

The court considered the parties’ extensive submissions regarding delay, cross-examinations, and the complexity of the motion.

While the defendants were wholly successful and entitled to costs, the court declined to award substantial indemnity costs, finding the plaintiff’s conduct did not rise to an abuse of process.

The court awarded partial indemnity costs and rejected the plaintiff’s request to stay the costs determination pending the outcome of a human rights application in another forum.

The plaintiff brought a motion to amend its statement of claim to substitute the individual carrying on business under certain style names as the proper plaintiff instead of the corporate plaintiff.

The defendants opposed the amendment, arguing that it constituted the addition of a new party after the limitation period had expired and that the matter had already been set down for trial.

The court held that the amendment was properly characterized as the correction of a misnomer under s. 21(2) of the Limitations Act and not the addition of a new party.

As the defendants knew the identity of the contracting party and suffered no prejudice that could not be remedied, the amendment was permitted.

The motion was granted, but the plaintiff was denied costs due to delay and ordered to pay costs to the defendants.

The plaintiff bank brought a motion for summary judgment to enforce a personal guarantee executed by a shareholder of a corporate borrower for an operating line of credit.

The defendant guarantor argued that the claim should be dismissed for delay and that his liability ended after he sold his shares, the borrower declared bankruptcy, and a co‑shareholder agreed to indemnify him.

The court held that the wording of the continuing guarantee preserved liability despite changes in ownership, bankruptcy of the borrower, or insolvency of an indemnifier.

The court also found that the action’s delay did not justify dismissal because the case was document‑driven and no actual prejudice was established.

Summary judgment was granted to the bank for the guaranteed amount.

The respondent Corporation sought costs following an application for judicial review of a labour arbitration award.

The court found the amount sought excessive, noting that the usual quantum for such applications is around $5,000.

The court declined to award higher costs based on the Corporation's choice to use out-of-province counsel and fixed costs at $5,000 inclusive of HST and disbursements.

The defendants moved to dismiss the action for alleged non-compliance with a prior disclosure order or, alternatively, for further production, particulars, and additional cross-examinations.

The plaintiff resisted the motion and sought an updated discovery plan.

The court held that the plaintiff had complied with the earlier order requiring production of profit and loss statements and declined to order further disclosure, additional affidavits of documents, or further cross-examinations.

Emphasizing the excessive interlocutory litigation in the matter, the court exercised its inherent jurisdiction to control its process, refused further procedural skirmishes without leave, and directed the parties toward completing discoveries and trial management.

Following the dismissal of the appeal, the parties made written submissions on costs.

The respondent sought costs on a full indemnity basis, which the court rejected, awarding partial indemnity costs of $6,209.88.

Both parties also sought costs for the earlier motion for leave to appeal, on which the appellants had been successful.

The court found that due to divided success between the leave motion and the appeal, no costs should be awarded for the leave motion.

The applicant union sought judicial review of an arbitrator's award ordering compensatory and punitive damages against it for organizing illegal strikes.

The union argued the collective agreement limited the arbitrator to declaratory relief for employer grievances.

The Divisional Court dismissed the application, finding the arbitrator reasonably interpreted the collective agreement and the Canada Labour Code in concluding he had broad remedial authority to award damages.

The moving party sought to vary a prior child support order made on consent that required monthly support based on a six‑figure income.

After the order, the moving party’s assets entered receivership and his income declined dramatically, leading to significant support arrears.

The court found a material change in circumstances but rejected the position that support should be reduced to zero, concluding the moving party failed to demonstrate reasonable efforts to obtain employment.

The court recalculated support for each year based on proven historical income and imputed minimum‑wage income for later years with no reported earnings.

The order was varied accordingly and annual financial disclosure between the parties was directed.

The defendant lender brought a motion for summary judgment dismissing a claim by a third mortgagee arising from a power of sale of residential property.

The plaintiff alleged the sale was improvident and challenged the defendant’s ability to add amounts paid to discharge a prior mortgage to its own mortgage debt.

The court held the sale price fell within the range of professional appraisals and did not demonstrate bad faith or fraud.

The court further held that the defendant was contractually and equitably entitled to add the payout of the prior mortgage to its own mortgage and recover that amount in priority to the plaintiff.

Finding the matter suitable for determination on a documentary record, the court granted summary judgment and dismissed the action.

The appellants appealed two decisions of the Social Benefits Tribunal that upheld an overpayment assessment of $60,231.86 by the Director of the Ontario Disability Support Program.

The appellants argued the Tribunal made factual and procedural errors, failed to consider certain arguments, and demonstrated bias.

The Divisional Court found no errors of law, palpable or overriding errors of fact, or evidence of bias in the Tribunal's merits decision.

The Court also dismissed the appeal of the human rights decision, finding no error in the Tribunal's treatment of the appellant's inheritance, corporate veil, or business expenses.

The appeal was dismissed with no order as to costs.

The appellant appealed a decision of the Board of the Alcohol and Gaming Commission revoking its liquor licence.

The Board found the appellant permitted unlawful gambling and the sale, distribution, or consumption of controlled drugs on its premises.

The Divisional Court dismissed the appeal, finding no error of law.

The Court held that the Board reasonably concluded the appellant had constructive knowledge of the drug activity and that the penalty of revocation was reasonable.

The appellant appealed an order setting aside a previous consent judgment that had dismissed the respondent's action for lack of jurisdiction.

The motions judge had set aside the consent order based on a subsequent change in jurisprudence regarding the court's jurisdiction.

The Divisional Court allowed the appeal, holding that a change in the law does not constitute 'facts arising or discovered after' an order is made under Rule 59.06(2)(a).

The court also found that the respondent's application to re-open the action was barred by cause of action estoppel.

The parties separated in 2008 and settled property issues, leaving custody, access, and child support to be determined.

The mother sought joint custody with final decision-making authority, while the father sought joint custody without such authority and increased access to reach a 40 percent threshold.

The court ordered joint custody with no final decision-making authority to either party, finding they had a history of cooperative decision-making.

The court maintained the children's primary residence with the mother and established a detailed access schedule for the father.

The court also ordered the father to pay ongoing child support of $1,141.25 per month and retroactive child support fixed at $12,000.

The plaintiff sought foreclosure on a mortgage securing loans advanced to her spouse and his son, who were registered owners of the mortgaged property.

One defendant disputed executing the mortgage and argued that any enforcement was barred by the limitation period under the Real Property Limitations Act.

The court found on a balance of probabilities that the defendant had signed the mortgage and that the document was valid and enforceable.

Interpreting the mortgage as collateral security with a fixed term and demand feature, the court held that the limitation period had not expired because demand was made in 2008 prior to maturity of the mortgage term.

The court granted foreclosure and possession of the mortgaged property.

The applicant sought an order compelling the municipality to issue a building permit for a parcel created through a series of intra-family conveyances designed to circumvent the Planning Act.

The court examined whether the parcel constituted a valid lot and whether the municipality could refuse the permit under the Building Code Act on the basis of contravention of other applicable law.

The court held that the initial conveyances forming the root of title were fraudulent and constituted a deceit upon the Planning Act because the purported vendors were never owners of the land.

As a result, the deeds were invalid and could not create a valid chain of title or be cured by the 40‑year rule, Planning Act statements, or subsequent conversion to land titles.

The court concluded that the building permit application was the “fruit from the poisoned tree” and refused to grant relief.

Following a family law trial concerning parenting-related issues, the court was required to determine costs.

The respondent sought costs after succeeding on two of three issues, while the applicant argued each party should bear their own costs.

The court found that success was divided between the parties and that both had acted unreasonably at times during the litigation.

Given the mixed outcome and equal importance of the issues, the court ordered that each party bear their own costs and that no costs be awarded for the costs submissions.

Following a motion concerning the appropriate income to be used in calculating child support, both parties sought costs.

The dispute arose from the payor’s claim that his present income had decreased and should be used instead of prior income, which would have produced significant arrears.

The court accepted the payor’s position on a temporary basis pending a further review of child support.

Although the issue was important and the argument somewhat novel, the payor was successful on the interim motion.

The court therefore awarded the successful party partial costs reflecting the short duration and limited scope of the motion.