Christopher D. Bredt

Following the dismissal of their appeals from decisions of the Environmental Review Tribunal regarding wind farm approvals, the appellant landowners argued they should not pay costs because the litigation was in the public interest.

The Divisional Court held that while the appeals were not public interest litigation that would merit no costs, they did contain a strong public interest component regarding the constitutionality of the legislative regime.

Taking this into account, along with the lack of particularity in the respondents' bills of costs and the lower scale of costs typically awarded on appeals to the Divisional Court, the court awarded reduced partial indemnity costs to the successful respondents totaling $67,000.

The appellants, residents living near three proposed wind turbine farms, appealed decisions of the Environmental Review Tribunal (ERT) that confirmed the Director's issuance of Renewable Energy Approvals (REAs) for the projects.

The appellants argued that the statutory test requiring them to prove the projects would cause 'serious harm to human health' violated section 7 of the Charter.

The Divisional Court dismissed the appeals, finding that the statutory test aligned with the jurisprudential threshold for section 7 claims and did not depart from the consensus scientific view on wind turbines.

The Court also upheld the ERT's treatment of lay witness evidence, its finding that it lacked jurisdiction to review the Director's REA issuance process for Charter compliance, and its discretionary decisions denying adjournments.

The appellants brought motions to stay the construction of two wind turbine projects pending their appeals of the Environmental Review Tribunal's decisions upholding the Renewable Energy Approvals.

The court found it lacked jurisdiction under the Rules of Civil Procedure or the Environmental Protection Act to stay the Director's approvals directly, treating the motions as requests for interlocutory injunctions.

Applying the RJR-MacDonald test, the court found a serious issue to be tried but concluded the appellants would not suffer irreparable harm prior to the appeal hearing, as the turbines would not be operational by then.

The motions were dismissed.

The applicants sought urgent judicial review of an Ontario Securities Commission decision denying their request to adjourn a hearing.

The adjournment was requested after the applicants' expert lost her work product due to a computer error.

The Divisional Court dismissed the application as premature, applying the general rule that procedural decisions of administrative tribunals should not be reviewed prior to the final determination of the proceeding unless there is a prospect of real unfairness amounting to a denial of natural justice.

The Court found the Commission's conclusion that the expert could be adequately prepared was reasonable.

The plaintiff railway company sought an ex-parte interim injunction to clear a blockade by unknown protesters on its Toronto to Montreal Main Line.

The blockade halted significant freight and passenger traffic, causing severe economic and operational disruptions.

Applying the R.J.R. MacDonald test, the court found a serious question to be tried regarding trespass, irreparable harm to the plaintiff and the public, and that the balance of convenience overwhelmingly favoured the plaintiff.

The court granted the interim injunction for ten days.

The appellants brought two companion libel actions arising from an article in a corporate newsletter that was posted on a website.

The respondents, Shaw Satellite G.P. and Bell Expressvu Limited Partnership, successfully moved for summary judgment, and the actions against them were dismissed.

The appellants appealed, arguing the motions judge erred by failing to draw an adverse inference from refusals given on cross-examinations.

The Court of Appeal dismissed the appeals, finding it was open to the motions judge to decline to draw an adverse inference based on the record.

The appellant challenged summary judgment enforcing a disciplinary costs award made by a securities self-regulatory organization after professional misconduct proceedings.

The issue was whether the organization could sue a former member in breach of contract to recover the unpaid costs award, and whether s. 9 of the Recognition Order barred that remedy by treating costs like fines or settlements.

The court held that prior authority recognizing contractual enforcement of disciplinary sanctions applied equally to costs awards, and that the plain wording of s. 9 was limited to fines and settlements.

The appeal was dismissed and appeal costs were awarded to the respondent.

Following the granting of summary judgment dismissing libel actions against certain defendants, the court reconsidered the appropriate costs award.

The defendants argued that an early offer to settle should justify full or substantial indemnity costs after the plaintiffs refused the offer and ultimately lost on summary judgment.

The court held that the offer did not trigger Rule 49 cost consequences because it expired before the hearing, but it could still be considered under the court’s discretion under s. 131 of the Courts of Justice Act and Rule 57.01.

The court found no reprehensible or unreasonable conduct warranting full or substantial indemnity costs but concluded the early offer should have prompted a careful reassessment of the claim.

The costs award was therefore increased from $25,000 to $35,000.

The plaintiff brought a motion for civil contempt against the respondent for his participation as a spokesperson in a railway blockade, in defiance of an injunction.

The respondent admitted knowledge of the order and his continued participation, leading to a finding of contempt.

In determining the appropriate sanction, the court declined to issue a continuing restraining order, noting the respondent had helped dismantle the blockade.

Applying principles for aboriginal contemnors and costs rules, the court ordered the respondent to pay costs of $16,584.87 to the plaintiff.

The moving defendants brought summary judgment motions seeking dismissal of defamation actions arising from an internal investigative firm newsletter describing an investigation into alleged unauthorized retransmission of satellite television signals in apartment buildings.

The plaintiffs alleged the article defamed them and that the moving defendants conspired with the investigation firm to publish it.

The court found no evidence linking the moving defendants to the creation or publication of the article and held that the record did not support conspiracy or vicarious liability.

The court also rejected arguments that unanswered questions on cross‑examination created adverse inferences.

Summary judgment was granted dismissing the actions against the moving defendants, with costs awarded.

The alleged contemnor, Ron Plain, brought a motion for extensive disclosure in a civil contempt proceeding arising from a railway blockade.

He sought the disclosure to mount a novel Charter challenge and collateral attack against the underlying injunction.

The court dismissed the motion, holding that a collateral attack on a valid court order is not permitted in contempt proceedings.

Furthermore, applying a contextual approach to civil contempt, the court found that the extensive disclosure sought was not necessary, particularly given that the applicant sought only costs as a sanction.

The plaintiff self-regulatory organization brought a motion for summary judgment to recover $80,000 in costs ordered by its disciplinary hearing panel against a former registrant.

The defendant had previously been found guilty of misconduct involving undisclosed financial interests in client accounts and was permanently banned and fined by the disciplinary panel.

Appeals to the securities regulator and the Divisional Court were dismissed, and the defendant failed to pay the ordered costs.

The court held that membership in the regulatory organization created a contractual obligation to comply with its by-laws, rules, and disciplinary orders, including costs awards.

The court concluded that the costs order was enforceable through a civil action for breach of contract.

Following the dismissal of defendants’ summary judgment motions and related motions to set aside an Anton Piller order, the court addressed the issue of costs.

The defendants had argued the plaintiff’s action was barred by limitation periods under s. 18(5) of the Radiocommunication Act and the Ontario Limitations Act and sought dismissal on summary judgment.

The court held that the motions were unreasonable given the extensive factual disputes, credibility issues, and evidentiary record requiring trial under the “full appreciation test” articulated in Combined Air Mechanical Services Inc. v. Flesch.

The defendants also unsuccessfully sought to challenge the Anton Piller order.

Costs were therefore awarded to the plaintiff on a substantial‑indemnity basis.

The plaintiff railway company sought an ex parte interim injunction to restrain protestors from blockading its Toronto-Montreal main line.

The protestors, who were members of a First Nation, claimed to be showing support for First Nations chiefs in an upcoming meeting with the Prime Minister.

The court granted the injunction, finding that the plaintiff had established a strong case of trespass and tortious interference, and that the blockade was causing irreparable harm to the plaintiff and its customers.

The court held that neither the expressive nature of the protest nor the aboriginal identity of the protestors altered the balance of convenience, which overwhelmingly favoured the plaintiff.

The plaintiff railway company sought to continue an interim injunction restraining aboriginal protesters from blockading its spur line.

The blockade was causing irreparable economic harm to the plaintiff and its customers.

The local police had refused to enforce the initial injunction, citing a desire to negotiate a peaceful resolution and maintain goodwill with the aboriginal community.

The court found that the protesters were trespassing and that the balance of convenience favoured the plaintiff.

The court continued the injunction, removing a clause that explicitly recognized police tactical discretion, but declined to schedule contempt proceedings due to the police's unwillingness to enforce the court's orders.

The defendants brought motions to set aside an Anton Piller order and to exclude evidence obtained under it, and also sought summary judgment dismissing the action on limitation grounds.

The action alleged an unauthorized SMATV scheme distributing encrypted satellite television programming to hundreds of tenants using residential subscriber accounts, contrary to the Radiocommunication Act, contract, and tort principles.

The court held that the plaintiff established a strong prima facie case and that the Anton Piller order was properly granted, finding no failure of full and frank disclosure.

The court also found that complex factual disputes, credibility issues, and allegations of fraudulent concealment prevented determination of limitation defences on summary judgment.

Both the motions to set aside the Anton Piller order and the motions for summary judgment were dismissed.

Following an earlier refusal to schedule the plaintiff’s motion for summary judgment, the court directed the parties to develop a trial preparation plan.

The parties submitted a proposed plan addressing production, examinations for discovery, undertakings, interlocutory motions, witness evidence, mediation, and trial management.

The court issued detailed case management directions establishing timelines for documentary production, discoveries, undertakings, and mediation, and provided guidance on the conduct of witness evidence and trial scheduling.

The decision also required the parties to schedule discovery-related motions and a further case conference to determine time limits for the anticipated two-week trial.

Following a motion hearing concerning a significant advance payment request in complex estate-related litigation, the court determined the appropriate costs award.

Applying the factors in Rule 57 of the Rules of Civil Procedure, the court considered the importance and novelty of the issues and the reasonable expectations of experienced litigants.

The plaintiff was successful and entitled to substantial costs for the motion.

The court also addressed the entitlement of the estate trustee during litigation to costs payable from the estate under a prior order.

The court heard two separate motions to strike or stay pending summary judgment motions on the Commercial List.

Applying the principles from Combined Air and the proportionality requirements of the Rules of Civil Procedure, the court held that concerns about the appropriateness of summary judgment motions should be addressed through case management rather than formal motions to strike.

The court reviewed the proposed summary judgment motions in both actions and concluded that neither was an appropriate candidate for summary judgment due to the complexity of the issues, the voluminous records, and the need for a full trial to appreciate the evidence.

Both summary judgment motions were directed not to proceed, and the parties were ordered to prepare for trial.

A surviving spouse sought an advance equalization payment of $4.5 million from the estate of her deceased husband under the Family Law Act or, alternatively, partial summary judgment.

The motion was opposed by several defendants asserting potential claims against the estate and challenging their standing and the appropriateness of the advance.

The court held that the equalization entitlement between spouses is personal under the Family Law Act and that the defendants were neither proven creditors nor beneficiaries.

Applying the three-part test for advance equalization payments from Laamanen v. Laamanen, the court found a reasonable need for litigation funding, little doubt of entitlement to at least the requested amount, and that granting the advance was just in the circumstances.