5 total
Costs fixed at a fair and reasonable all-inclusive amount of $50,000.
Following judgment for the plaintiff and dismissal of the counterclaim, the court determined the appropriate costs award on written submissions.
The successful party sought full indemnity costs based on an unaccepted offer to settle, while the unsuccessful party conceded entitlement to partial indemnity costs before the offer and substantial indemnity costs thereafter.
Applying Rule 57, proportionality, and appellate guidance that costs must be fair and reasonable rather than a reimbursement of actual fees, the court fixed all-inclusive costs at $50,000.
Known site risks defeated the warranty-based counterclaim.
On a summary judgment motion arising from a commercial real estate transaction, the court dismissed a counterclaim seeking rescission or $1.5 million in damages based on alleged environmental and structural misrepresentations relating to a former mine site.
The court held the original agreement of purchase and sale, including its warranties, survived closing subject to negotiated changes, but found the purchasers had long possessed the material information about the mine shaft, buried scrap metal, and possible ground instability before closing.
Applying the post-Hryniak summary judgment framework, the court concluded there was no genuine issue requiring a trial because the alleged warranty claim was inconsistent with the purchasers' informed decision to complete the transaction and give a promissory note.
Judgment was therefore granted on the promissory note.
Costs of $3,500 awarded to successful plaintiffs on motion for leave to appeal.
The plaintiffs were successful in their motion for leave to appeal, with the ultimate issue concerning the limitation period reserved to the trial judge.
The court awarded costs of the motion to the plaintiffs in the amount of $3,500, exclusive of disbursements and HST, considering the factors in Rule 57.01 and the uniqueness of the law.
Leave to appeal denied; discoverability of limitation period for amended pleadings is a factual issue for trial.
The defendant, Dietrich Construction Limited, sought leave to appeal an order allowing the plaintiffs to amend their Statement of Claim to include claims for sand removal dating back to 1998.
The defendant argued the motion judge erred regarding the expiration of the limitation period and the conflict between the Limitations Act, 2002 and Rule 26.01.
The Divisional Court dismissed the motion, finding no conflict in the law and that discoverability remained a factual issue for the trial judge.
Amendment to pleadings allowed where limitation issue required factual determination at trial.
The plaintiffs brought a motion to amend their amended Statement of Claim to increase damages and extend the time period over which the defendants allegedly removed and converted sand from the plaintiffs’ property.
The defendant contractor opposed the amendment, arguing that claims relating to sand removal prior to 2007 were statute‑barred under the Limitations Act, 2002.
The court held that whether the claims were discoverable earlier was a factual issue unsuitable for determination on a motion.
Because the limitation issue was disputed and the amendments did not introduce a new tort, the court held that Rule 26.01 required the amendment to be permitted absent non-compensable prejudice.
The motion to amend was therefore granted, with procedural directions for further discoveries and expert reports.
