Clinton V. Ellis

Following reasons granting summary judgment in a reduced amount, the court determined the appropriate costs award.

The successful party sought substantial indemnity costs exceeding $18,000 plus disbursements and interest.

The court applied Rule 57.01(1) of the Rules of Civil Procedure and s.131 of the Courts of Justice Act, considering factors such as the degree of success, proportionality between the amount claimed and recovered, the limited complexity of the proceeding, and the conduct of the responding party which unnecessarily prolonged the litigation.

Although the moving party succeeded, the recovery was less than half the amount claimed.

The court awarded reduced costs and granted prejudgment interest.

The defendant brought a motion for leave to amend her statement of defence and add a counterclaim in a commercial lease dispute involving alleged rental arrears, utilities, and insurance costs.

The plaintiff opposed the amendment, arguing the proposed defences, including a limitation period defence and allegations of fiduciary duty, were legally untenable and constituted delay tactics.

Applying Rules 26.01, 26.02, and 27.07 of the Rules of Civil Procedure, the court held that leave to amend should generally be granted unless non-compensable prejudice would result.

The court found that although some proposed defences appeared tenuous, the litigation was at an early stage and the plaintiff would suffer no prejudice that could not be compensated by costs.

Leave to amend and add the counterclaim was granted, with directions that the summary judgment motion proceed after the amended pleadings and related steps.

Following an earlier endorsement that did not address costs, counsel for the applicant requested that the court determine the costs of a motion.

The court reviewed the prior endorsement and noted that the issue underlying the motion involved findings of credibility regarding settled intention.

Given that credibility determinations would ultimately be made at trial, the court declined to determine costs at this stage.

Instead, costs of the motion were reserved to the trial judge.

At a case conference in a family law proceeding, the parties sought directions relating to custody, support, and property issues following marital breakdown.

The matter involved disputes over custody of the child of the marriage, the status of a stepchild as a child of the marriage, spousal support, and the proposed sale of the matrimonial home.

The court addressed significant delay in service of the application and considered the high-conflict environment between the parties while they continued to reside in the same residence.

Orders were made for disclosure, a clinical assessment by the Office of the Children’s Lawyer, screening for alcohol dependency, and steps to list and sell the matrimonial home.

The matter was adjourned to a settlement/trial management conference with interim procedural directions.