Colin Pendrith

Following the dismissal of the plaintiff's $10.5 million claim and the granting of the defendant's counterclaim on a motion for summary judgment, the successful defendant sought costs on a substantial indemnity basis.

The court rejected the claim for substantial indemnity costs, finding the plaintiff's conduct did not meet the requisite standard of reprehensible conduct.

Applying the factors under Rule 57.01 and the principle of proportionality, the court reduced the defendant's claimed hours and fixed costs at $80,000 inclusive of disbursements and HST.

The parties agreed that the respondent should have its costs fixed at $66,191.27, inclusive of disbursements and relevant taxes.

The Court of Appeal ordered costs in that amount.

The plaintiffs sued Greenpeace Canada for defamation and intentional interference with economic relations regarding statements about the plaintiffs' logging activities.

In its statement of defence, Greenpeace pleaded qualified privilege and a moral duty to publish the statements.

In reply, the plaintiffs pleaded sweeping allegations about the historical conduct of international Greenpeace organizations.

Greenpeace appealed a motion judge's refusal to strike these portions of the reply.

The Divisional Court allowed the appeal and struck the impugned paragraphs, finding they would improperly expand the scope of the litigation into an inquiry of the entire global Greenpeace movement, causing prejudice that outweighed any probative value.

The appellants operated businesses leasing mobile signs.

The respondent municipality enacted a new sign bylaw in 2002 and enforced it by confiscating the appellants' signs.

The appellants sued for negligent enforcement, arguing their signs were exempt because the previous bylaw had expired, leaving their signs lawfully in place when the 2002 bylaw took effect.

The trial judge dismissed the action.

On appeal, the Court of Appeal affirmed the dismissal, finding no evidence that the municipality breached the standard of care or acted unreasonably in enforcing the bylaw, as the municipality had a viable argument for the bylaw's enforceability at the time.

The appellants entered into an agreement with the respondent to build and operate a car dealership.

The respondent terminated the agreement after the appellants failed to meet construction deadlines.

The trial judge found the termination was unreasonable but held that an exclusion clause protected the respondent from liability for damages.

On appeal, the appellants argued the exclusion clause should not apply to an unreasonable termination.

The Court of Appeal dismissed the appeal, finding the trial judge's interpretation of the broadly worded exclusion clause was reasonable and not tainted by palpable and overriding error.

Following a successful appeal of a Master's order regarding a certificate of pending litigation, the appellants sought substantial indemnity costs based on an ex parte non-disclosure and settlement offers.

The court declined substantial indemnity but awarded partial indemnity costs with a premium for a bona fide settlement offer made prior to the hearing.

Costs were fixed at $24,805.22 inclusive of the motion below and the appeal.

The defendant, King Packaged Materials Company, brought a motion for summary judgment to dismiss the plaintiff's (Construction Distribution & Supply Co. Inc.) action for insufficient termination notice of a distribution agreement and to grant its counterclaim for unpaid products.

The court found that the unwritten, non-exclusive distribution agreement, which lasted 18 years, implied a term for reasonable notice of termination based on industry custom.

Considering factors such as the plaintiff's low dependence on the defendant's products (less than 5% of total sales) and lack of substantial investment, the court determined that the three months' notice provided by the defendant was reasonable.

Consequently, the plaintiff's claim for damages was dismissed, and the defendant's counterclaim for $93,890.49 plus interest for unpaid products was granted.

This is an appeal from a Master's decision concerning an ex parte certificate of pending litigation.

The Superior Court found that the plaintiff failed to make full and fair disclosure of material facts when obtaining the certificate, misstating the nature and purpose of underlying agreements related to an interest in land.

The Master also erred in ordering all proceeds of sale into court, exceeding the plaintiff's claimed interest.

The appeal was allowed, the Master's order set aside, and the certificate of pending litigation discharged.

The plaintiff sued ten fuel providers for losses arising from fraudulent fuel card transactions.

The defendants brought motions to sever the proceedings.

The parties agreed to sever the claims against the Imperial defendants and stay the remaining claims pending the outcome of the Imperial action.

Shell brought a separate motion to stay the action against it based on a forum selection clause designating Alberta as the exclusive jurisdiction.

The court dismissed Shell's motion, finding that the policy against a multiplicity of proceedings constituted 'strong cause' to override the forum selection clause.

The appellants appealed a decision.

At the hearing, an alleged conflict was raised.

The Divisional Court was unable to ascertain the facts respecting the alleged conflict on the record.

As a result, the appeal was adjourned to be heard on a later date with a newly constituted panel due to scheduling exigencies.

Following the dismissal of the plaintiffs' $7.5 million action for negligent enforcement of a sign by-law, the successful defendant municipality sought costs on an elevated partial indemnity basis.

The plaintiffs argued for a distributive costs order or no costs, claiming the action was public interest litigation.

The court rejected the public interest argument and declined to make a distributive costs order, but reduced the defendant's fees by 25% to account for time spent on an unsuccessful defence regarding a 1988 by-law.

The court also declined to award elevated costs, finding no reprehensible conduct by the plaintiffs.

Costs were fixed at $275,000 for fees and $79,510.26 for disbursements.

The defendants sought leave to appeal an interlocutory order dismissing their motion to strike portions of a reply in a defamation action.

The underlying action alleged defamatory statements and economic interference arising from publications about forestry practices in the Canadian boreal forest.

The reply pleading introduced allegations concerning a decades-long history of alleged unlawful campaigns by environmental organizations unrelated to the pleaded claim.

The court held there was good reason to doubt the correctness of the motions judge’s order permitting the expanded reply because it risked significantly broadening the scope of the litigation beyond the pleaded dispute.

Leave to appeal was granted given the importance of defining the permissible scope of reply pleadings and the risk of prejudice, delay, and unnecessary litigation costs.

The plaintiffs, who operated mobile sign leasing businesses, sued the City of Mississauga for $7.5 million in damages for negligent enforcement of a 2002 sign bylaw.

They argued their signs were 'grandfathered' and exempt from the new bylaw because the previous bylaw had expired, leaving a period of no regulation.

The court found that while the signs were lawfully erected and grandfathered, the City did not owe a private law duty of care to the plaintiffs.

The City's actions in publicizing and implementing the bylaw were protected policy decisions, and finding a duty of care would expose the City to indeterminate liability.

The action was dismissed.

The appellant appealed a motion judge's order granting a conditional stay of proceedings in Ontario.

The motion judge found that while Ontario had jurisdiction simpliciter, other actions in Nevada and British Columbia were relevant to the forum non conveniens analysis, and ordered a temporary stay that would become permanent if the respondent commenced an action in those jurisdictions within 60 days.

The Court of Appeal dismissed the appeal, finding the motion judge's application of the Van Breda factors and the resulting disposition to be reasonable and fair.

The appellants appealed an order dismissing their motion to strike the respondents' claim for intentional interference with economic relations.

The appellants argued the claim lacked sufficient particulars regarding unlawful conduct, actionable conduct against third parties, and damages.

The Divisional Court dismissed the appeal, finding that the statement of claim and amended particulars provided sufficient material facts to allow the appellants to respond, and that the pleading adequately disclosed a reasonable cause of action.

The defendants brought a motion under Rules 21.01(1)(b) and 25.06 of the Rules of Civil Procedure seeking to strike portions of the statement of claim, including claims against an individual corporate officer and a claim for oppression under the Canada Business Corporations Act.

The action alleged that a former corporate partner withdrew from a partnership while its share capital account reflected a negative balance arising from partnership drawings, resulting in claims for breach of fiduciary duty, unjust enrichment, conversion, and oppression.

The court applied the stringent “plain and obvious” test for striking pleadings and held that the claims for breach of fiduciary duty and unjust enrichment disclosed reasonable causes of action and should proceed.

However, the oppression remedy claim lacked sufficient material facts and was struck with leave to amend.

Certain paragraphs referencing settlement discussions were also struck as subject to settlement privilege.

Following a jurisdiction motion in which the court stayed an Ontario application concerning rights under a release and settlement agreement, the successful responding party sought costs.

The court considered submissions regarding whether the unsuccessful party should nonetheless avoid a costs award because Ontario had jurisdiction simpliciter and the forum issue arose from related disputes involving other jurisdictions.

The court rejected the argument that the losing party should not pay costs simply because he reasonably expected to succeed.

Applying ordinary costs principles, the court held that the successful party on the motion was entitled to costs on a partial indemnity scale.

Costs were fixed in a reduced amount as fair and reasonable in the circumstances.

Appeal in estate litigation concerning whether funds in joint bank accounts with right of survivorship formed part of the deceased's estate or were held for the benefit of all five children.

Applying the framework in Pecore, the court held the presumption of resulting trust was rebutted by evidence that the deceased intended an immediate inter vivos gift of the beneficial right of survivorship to all of his children, with the legal holders of the accounts holding that right in trust for them equally.

The court declined to entertain a new secret trust argument raised for the first time on appeal.

On the cross-appeal, the court held the trial judge erred in refusing estate indemnification, because the litigation was required for the proper administration of the estate and was caused by the testator's own arrangements.

A blended costs order was appropriate.

The applicant, a former officer and director of the respondent mining companies, brought an application in Ontario seeking a determination of his rights to stock options under a Release and Settlement Agreement.

The respondent moved to stay the application, arguing that Ontario lacked jurisdiction simpliciter and was forum non conveniens, as the respondent intended to allege the applicant breached his fiduciary duties and the agreement in Nevada.

The court found that Ontario had jurisdiction simpliciter because the agreement was made in Ontario.

However, the court concluded that Ontario was forum non conveniens for resolving the omnibus disputes between the parties.

The court temporarily stayed the application for 60 days to allow the respondent to commence an action in British Columbia or Nevada, with the stay to become permanent if such an action is brought.

The defendants sought leave to appeal to the Divisional Court after a motion judge dismissed their motion to strike portions of the plaintiffs’ statement of claim alleging intentional interference with economic relations.

The action alleged that the defendants disseminated defamatory communications to customers and stakeholders and intimidated customers in an effort to disrupt business relationships.

The court considered the test under Rule 62.02(4) of the Rules of Civil Procedure governing leave to appeal.

It found a conflicting decision regarding the sufficiency of pleadings and whether material facts may be supplied only after examinations for discovery.

Concluding that the issues raised a serious question about the correctness of the order and warranted appellate consideration, the court granted leave to appeal on all issues.