Chris Donovan

This is a costs endorsement following a successful summary judgment motion by the defendants, which dismissed the plaintiffs' action in its entirety.

The court considered the defendants' requests for partial indemnity costs and the plaintiffs' financial hardship.

Exercising its discretion under section 131 of the Courts of Justice Act, the court reduced the costs payable by the plaintiffs, ordering them to pay $15,000 to one defendant and $15,000 to the corporate defendants, inclusive of all fees, disbursements, and HST.

The defendants moved for summary judgment to dismiss the plaintiffs' action, which alleged solicitor's negligence against one defendant and sought damages against the other defendants (former mortgagee).

The court found the action time-barred under the Limitations Act, 2002, as it was commenced more than two years after the plaintiffs were aware of their claims.

Furthermore, the court found no evidence of solicitor's negligence or a valid cause of action against the mortgagee, concluding that the plaintiffs' financial hardships were a consequence of their mortgage default and the new lender's risk assessment, not the defendants' fault.

The action was dismissed.

The plaintiff sued its former defence counsel for professional negligence and negligent misrepresentation, alleging the lawyer misrepresented a settlement offer from the Crown in an underlying environmental prosecution, which led the plaintiff's insurer to cap coverage.

The defendants moved for summary judgment.

After a mini-trial to resolve credibility issues, the court found that the lawyer accurately reported the conditional nature of the settlement discussions and did not misrepresent the offer.

The court also found no conflict of interest and held that the lawyer acted reasonably and upon instructions in providing a case assessment memorandum to the insurer.

The summary judgment motion was granted and the action dismissed.

The plaintiff brought two motions: one for leave to amend the statement of claim to add fraudulent conveyance allegations against the defendants' children, and another to compel answers to questions refused during cross-examinations on affidavits.

The defendants did not oppose the amendment but opposed the refusals motion.

The court granted leave to amend as of right.

However, the court dismissed the refusals motion, finding that the broad questions regarding the children's financial circumstances were not relevant to the pending jurisdiction motion, which would focus on factors such as where the parties reside and where the loan contracts were made.

The defendant union brought a motion to bifurcate the trial of three related wrongful dismissal actions, seeking to separate the employment contract issues from the election and membership issues raised by some plaintiffs.

The defendant also sought to have the actions assigned to case management.

The court dismissed the motion for bifurcation, finding that the issues were complex and intertwined, and the defendant failed to demonstrate a clear benefit to severing them.

The court also declined to order case management, as there was no demonstrated need for court intervention at this time.

The actions were ordered to be tried together on consent.

Following dismissal of a negligence action against a lawyer, the successful defendant sought partial indemnity costs of approximately $74,000.

The plaintiffs challenged the quantum, arguing that certain hours were excessive, that some work should have been done by junior counsel, and that an expert report not used at trial should not be compensable.

The court applied the discretionary factors under Rule 57.01 of the Rules of Civil Procedure, emphasizing fairness and reasonableness in light of the issues and expectations of the parties.

While the hourly rates and expert report were found reasonable, some time entries and disbursements were reduced.

The court awarded reduced costs inclusive of disbursements and tax.

The plaintiffs alleged negligence against a lawyer who discharged their mortgages without authorization, claiming they had never met the lawyer or signed discharge authorizations.

The lawyer maintained that the plaintiffs attended his office, produced identification, and executed written authorizations.

The court evaluated conflicting testimony, contemporaneous documentation, and the lawyer’s standard practice for client identification.

Finding the lawyer’s evidence more credible and supported by photocopies of the plaintiffs’ identification and witnessed signatures, the court concluded that the plaintiffs had likely attended and authorized the discharges or, alternatively, that the lawyer had exercised reasonable care consistent with the applicable standard.

The plaintiffs also failed to prove the alleged outstanding mortgage advances.

The negligence claim was dismissed.

Following dismissal of a Rule 21 motion brought by one defendant seeking to bar claims relating to expulsion from union membership, the court addressed costs.

The plaintiffs had successfully resisted the motion, which sought to preclude the action for failure to exhaust internal union appeals or for lack of jurisdiction.

Applying the discretionary costs framework under s. 131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court considered proportionality, complexity, and the results achieved.

Relying on appellate guidance regarding fair and reasonable costs awards, the court held that the successful plaintiffs were entitled to costs.

Partial indemnity costs of $4,990 were ordered payable by the moving defendant only.

Former union members brought a civil action seeking damages for wrongful dismissal and declarations that their expulsion from union membership was invalid and contrary to the union’s constitution and principles of natural justice.

The international union moved under Rule 21 of the Rules of Civil Procedure to bar portions of the claim on the basis that the plaintiffs failed to exhaust internal union appeal mechanisms and, alternatively, that a forum selection clause required the dispute to be litigated in the Federal District Court for the District of Columbia.

The court held it was not plain and obvious that the plaintiffs were precluded from pursuing the claims without first exhausting internal remedies because the evidentiary record was insufficient to determine whether those remedies were unreasonable, impracticable, or illusory.

The court also held that a forum selection clause does not deprive Ontario courts of jurisdiction simpliciter and that jurisdiction and forum non conveniens issues had not been properly argued.

The motion was dismissed.

The plaintiff appealed a Master's decision refusing leave to vacate a trial record after the action had been set down for trial.

The trial record had been filed to avoid dismissal following a status notice, but doing so prevented further discovery under rule 48.04(1) of the Rules of Civil Procedure.

The Master held that leave could only be granted if there was a substantial or unexpected change in circumstances or if substantive rights were affected.

The court held that the Master fettered his discretion by applying the test too narrowly.

Even without a substantial change in circumstances, leave may be granted where the interests of justice require it, particularly where the plaintiff would otherwise suffer significant prejudice in preparing for trial.