Christine G. Carter

This endorsement addresses costs following a summary judgment motion where the plaintiffs succeeded against Paul McEnery but failed against the law firm Williams McEnery/Williams Litigation Lawyers.

The law firm, as the successful defendant, was awarded its partial indemnity costs of $56,398.22 from the plaintiffs.

The plaintiffs, while successful against Mr. McEnery, were only awarded $2,500 in costs from him, as most of their litigation expenses were attributable to the unsuccessful claim against the law firm.

The court denied the plaintiffs' request for a Sanderson order, which would have made Mr. McEnery responsible for the law firm's costs, finding it would not be just or fair given the plaintiffs' deliberate decision to pursue the law firm and the distinct nature of the claims.

This decision addresses costs arising from a successful interlocutory injunction motion brought by Wayne and Liana Gendron against the City of Kawartha Lakes.

The Gendrons sought substantial indemnity costs, while TD Bank, a non-party, also requested costs.

The City opposed both requests.

The court awarded partial indemnity costs to the Gendrons, finding the City's opposition to the underlying injunction motion to be without merit.

TD Bank's request for costs was denied, as it was a non-party with a mere "watching brief" whose counsel's attendance added nothing to the argument.

The Gendrons moved for an interlocutory injunction to prevent the City of Kawartha Lakes from selling their home, which was subject to a priority lien under the Environmental Protection Act.

The City opposed, arguing estoppel, res judicata, failure to meet the injunction test, and lack of an undertaking for damages.

The court granted the prohibitive injunction, finding serious issues to be tried regarding the lien's validity and amount, irreparable harm to the Gendrons and TD Bank, and the balance of convenience favoring the Gendrons.

The court also ordered priority for the underlying motions.

The plaintiffs brought actions in debt against a lawyer and moved for summary judgment against both the lawyer and the law firm he shared space with, alleging they were partners or that the firm held him out as a partner.

The court granted summary judgment against the lawyer for the unpaid loans.

However, the court dismissed the claims against the law firm, finding that the lawyer was a sole practitioner and not a partner in fact.

Furthermore, while the lawyer may have been held out as a partner, the plaintiffs failed to prove they extended credit in reliance on that representation.

The court granted a 'boomerang' summary judgment dismissing the claims against the law firm despite the lack of a cross-motion.

The City of Kawartha Lakes appealed a Master's order compelling its solicitor to answer questions and produce documents on cross-examination regarding an affidavit she swore.

The Master found that the City had waived solicitor-client and settlement privilege by voluntarily disclosing detailed narratives of its conduct, legal advice, and settlement negotiations in the affidavit.

The Superior Court dismissed the appeal, upholding the Master's findings that the information was relevant and that the privileges had been waived.

The court also confirmed that section 239 of the Municipal Act does not create a new 'closed session' privilege.

The appellant municipality appealed a trial judgment awarding the respondent approximately $995,000 in damages plus $921,508 in costs for injuries sustained while riding a bicycle on a recreational path.

The respondent's bicycle struck an exposed metal bracket from a removed bollard, causing her to fall and sustain a brain injury.

The trial judge found the municipality solely liable under the Occupiers' Liability Act and awarded damages for lost income.

The Court of Appeal dismissed the appeal, rejecting arguments regarding misinterpretation of the Act, failure to apply the but-for test, lack of jurisdiction regarding lost income damages, and failure to find contributory negligence.

The court also denied leave to appeal the costs award.

The appellant protested outside town hall with a megaphone against a municipal by-law permitting a medical marijuana facility to be built near his home.

Town employees expressed fear for their safety, and the town issued a one-year trespass notice banning the appellant from all town property.

The application judge found the appellant's protest was violent and therefore not protected by the Charter.

The Court of Appeal reversed, holding that the appellant's protest was peaceful expression protected by section 2(b) of the Canadian Charter of Rights and Freedoms, and that the trespass notice unjustifiably limited his freedom of expression.

The plaintiff, Wanda Labanowicz, sought costs and interest following a successful three-week trial against the Corporation of the Town of Fort Erie, where she was awarded $894,839.72 in damages for a bicycle accident.

The court considered the plaintiff's pre-trial offers, which she surpassed, the defendant's "scorched earth" defence, the case's complexity, and the parties' reasonable expectations.

The court found the defendant's offers to be 'nuisance' value and criticized its unreasonable and unsupported defences.

While largely granting costs to the plaintiff on a partial indemnity basis to the date of her May 2016 offer and substantial indemnity thereafter, the court reduced the plaintiff's proposed Bill of Costs by $35,000 for pre-May Offer costs and made further reductions for post-May Offer costs and costs submissions due to duplication from multiple law firms and excessive clerk/student time.

Disbursements and OHIP claims were largely upheld, and full interest was awarded to the plaintiff.

The plaintiff sustained a brain injury after her bicycle struck an empty bollard housing on a municipal recreational trail.

She sued the municipality under the Occupiers' Liability Act.

The court found the municipality 100% liable, holding that leaving an unpainted, unlocked, and easily removable bollard housing exposed on the trail amounted to reckless disregard for the safety of cyclists.

The court rejected arguments of contributory negligence and found the accident caused the plaintiff's post-concussion syndrome, rendering her competitively unemployable in her previous field.

Damages for past and future income loss were awarded in the amount of $737,339.72.

The Town of Fort Erie sought costs on a partial indemnity basis after successfully defending an application brought by Fredrick Bracken.

Bracken argued for no costs, claiming public interest litigant status.

The court awarded costs to the Town, finding Bracken was not a public interest litigant and his conduct necessitated the proceedings.

The court fixed costs at $15,000, inclusive of disbursements and HST, payable by Bracken within 60 days, applying Rule 57.01(1) and the principle of reasonableness.

The applicant sought a declaration that a trespass notice issued by the respondent municipality violated his freedom of expression under s. 2(b) of the Charter.

The applicant had protested at the town hall using a megaphone and siren, exhibiting erratic and intimidating behaviour that caused staff to fear for their safety.

The court found that while the issue was moot, it warranted a decision.

The court dismissed the application, holding that the applicant's aggressive and disruptive conduct crossed the line from peaceful protest to violent expression, which is not protected by s. 2(b) of the Charter.

Following dismissal of a motion seeking removal of the plaintiff’s counsel from the record and allegations impugning counsel’s professional integrity, the plaintiff sought costs of the motion.

The defendant argued the court was functus and that costs were disproportionate.

The court rejected those arguments, holding that the earlier endorsement expressly contemplated a later determination of costs.

Given that the motion alleged serious misconduct against opposing counsel without evidentiary foundation, the court held that substantial indemnity costs were warranted as a punitive response.

Costs were fixed on a substantial indemnity basis in the amount of $50,537.03.

Following a trial involving competing defences, the court addressed costs where each side experienced partial success.

The defendants succeeded on a late‑amended secondary defence but failed on their primary defence alleging deliberate misrepresentation by the plaintiff.

Most pre‑trial costs related to the unsuccessful fraud allegation, while only a small portion of the trial addressed the successful defence.

Applying Rule 57.01(2) of the Rules of Civil Procedure and considering the timing of the amendment and the nature of the allegations, the court ordered that the plaintiff recover costs incurred prior to the amendment while each party bear its own trial costs.

The plaintiff sought payment under a critical illness insurance policy after being diagnosed with thyroid cancer.

The insurer rescinded the policy alleging the insured failed to disclose sleep apnea during the application process.

The court held the insurer was not entitled to rescind the contract because the application questions were ambiguous and the insured reasonably did not understand sleep apnea to fall within the categories asked.

However, the insurer successfully relied on a contractual 90‑day exclusion clause because signs leading to the cancer diagnosis began before the 91st day after the policy came into effect.

As a result, coverage was excluded despite the insurer’s failed rescission argument.

The plaintiff municipality sought to recover environmental remediation costs following a residential furnace oil spill that migrated onto public lands and into a lake.

Several defendants, including an insurer, insurance adjuster, and environmental remediation contractor, brought summary judgment motions to dismiss statutory and negligence claims against them under the Environmental Protection Act.

The court held that none of the moving parties were “owners of the pollutant” or persons “having control of the pollutant” within the meaning of the statute and dismissed the statutory claims.

However, the court declined to summarily dismiss the negligence claims, finding that the potential duty of care owed by an insurer, adjuster, or remediation contractor to an adjoining landowner presented a novel question requiring a full Anns analysis at trial.

Amendments to the statement of claim were also permitted as they arose from the same factual matrix and did not introduce a new cause of action.