Craig O’Brien

The plaintiffs, owners of a water-access-only island property, sought a declaration that they held an easement over the defendant's mainland property for parking and boat launching.

The defendant, who operated a lodge on the mainland property, resisted the claim.

The Superior Court of Justice found that a valid express easement was created by a 1952 deed.

In the alternative, the court found that an implied easement of necessity and a prescriptive easement under the doctrine of lost modern grant had also been established.

The court held that the Registry Act did not extinguish the easement, as it arose by operation of law and the defendant's predecessors were not good-faith purchasers without notice.

The court granted the plaintiffs ancillary rights to park and launch boats, but declined to grant dock access.

The moving party brought a motion for leave to appeal a lower court decision.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 to one of the responding parties.

The applicant sought a declaration regarding the end date of a contract for the supply of telephones, televisions, and multimedia terminals to the applicant's inpatient facilities.

The original agreement commenced in September 2003 for 9.5 years.

An amending agreement in 2009-2010 extended the term by 7 years to March 1, 2020, and introduced new multimedia terminals.

The respondent argued the contract contained an alternative term triggered upon completion of terminal installation in July 2014, extending the contract to January 2031.

The court applied principles of contract interpretation and found the alternative term was vague and unenforceable.

The court also found the respondent was precluded by the doctrine of election from asserting the alternative term, having previously relied on the contract's terms in the commission dispute.

The court declared the contract term to be September 1, 2003 to March 1, 2020.

The court granted summary judgment in favour of Aaron Bell, ordering specific performance of an agreement of purchase and sale (APS) for a unique mixed-use property.

The court found that Donald Bisaillon, the seller, had waived the solicitor review condition in the APS or, alternatively, could not rely on it in bad faith to avoid the sale.

The court held that specific performance was the appropriate remedy due to the property's unique qualities and the inadequacy of damages.

The plaintiffs sought leave to deliver and rely on an expert opinion from a land surveyor shortly before trial in a dispute over the existence and scope of an easement for access to their property.

The court reviewed the procedural history, including multiple changes of counsel and pre-trial conferences, and considered whether the plaintiffs had a reasonable explanation for the late delivery of the expert report.

The court found that the plaintiffs had not provided a reasonable explanation and that granting leave would cause undue delay and potential prejudice.

The motion was dismissed.

This costs decision follows the dismissal of both the plaintiff’s action and the defendant’s counterclaim in a dispute over a right-of-way between neighbouring commercial properties.

The Canadian Dental Hygienists Association (CDHA) sought costs for both the trial and a prior motion.

The court found that CDHA was the successful party and awarded it $35,000 in costs, all-inclusive, payable by Ms. Layton.

The decision reviews the relevant legal principles, including the discretion of the court under the Courts of Justice Act and the factors in Rule 57.01 of the Rules of Civil Procedure, and applies the cost limits under the Simplified Procedure.

This appeal concerned a dispute over specific performance of a property transfer agreement between a son (respondent) and his father and stepmother (appellants).

The trial judge had dismissed the appellants' claim for specific performance, finding no uniqueness in the property and delay by the appellants.

The Court of Appeal allowed the appeal, finding that the trial judge erred by failing to consider the subjective uniqueness of the property as the appellants' established home and the unique nature of the transaction.

The Court also found no unreasonable delay by the appellants in seeking specific performance, as the respondent had repudiated the agreement.

Specific performance was ordered, along with an accounting of expenses and a reassessment of costs in favour of the appellants.

This simplified trial concerned a dispute between neighboring commercial properties regarding the scope of a right-of-way over a laneway and associated damage claims.

The plaintiff sought a full right-of-way and damages, while the defendant asserted a limited right-of-way and counterclaimed for damages.

The court found that the right-of-way was limited to a partial section of the laneway as established by a Land Titles Act order, rejecting claims for a full prescriptive easement or expansion based on by-laws or nuisance.

All damage claims from both parties were dismissed due to mutual fault in escalating the dispute and a lack of proven financial loss.

The applicant, Melynda Layton, brought a motion for an interlocutory injunction against the Canadian Dental Hygienists Association, her neighbour, regarding a dispute over access to an alleyway and her backyard parking.

Layton alleged a right of way and breaches of various statutes (Municipal Act, Fire Code, Road Access Act, Trespass to Property Act) and torts (breach of contract, trespass, nuisance, conspiracy, intentional interference with economic relations).

The Association denied the full extent of the right of way and counterclaimed.

The court dismissed the motion, holding that for private parties seeking interlocutory relief under s. 440 of the Municipal Act, the three-part RJR-MacDonald test applies.

While a serious issue was found regarding the Fire Code contravention, the court determined that the comprehensive statutory enforcement scheme under the Fire Protection and Prevention Act, 1997, was adequate, and thus, equitable injunctive relief by a private party was not warranted.

For other claims, irreparable harm was not established as damages were compensable.

The court issued a costs endorsement following a determination of claims and counterclaims.

Applying principles of fairness, reasonableness, and access to justice, and considering Rule 57 factors, the court awarded partial indemnity costs to the defendants.

The court found the defendants' claimed hours and rates excessive compared to the plaintiff's counsel, fixing fees at $30,000 plus HST and disbursements at $3957.74, payable by the plaintiff to the defendants.

The plaintiff son brought an action to set aside an agreement to transfer his house to his defendant father and stepmother, claiming he signed it under duress.

The defendants counterclaimed for specific performance of the agreement.

The court found the plaintiff was not a credible witness and dismissed the claim of duress, holding the agreement was valid and enforceable.

However, the court declined to order specific performance, finding the property was not unique to the defendants and damages were an adequate remedy.

The defendants were awarded $48,384.72 in damages for loans, rent, and property expenses, and were ordered to vacate the premises within six months.

The moving party brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 to each of the two responding parties.

The defendant brought a motion for an order requiring the plaintiff to destroy copies of two allegedly privileged emails produced in the defendant's affidavit of documents.

The emails contained legal advice regarding a property dispute.

The court found that the defendant had waived solicitor-client privilege by producing the documents, allowing them to be used during examinations for discovery without objection, and relying on them in communications with a co-defendant.

The motion was dismissed.

The defendant lawyer moved for summary judgment to dismiss the plaintiff's claims of professional negligence and breach of trust arising from an unregistered mortgage.

The plaintiff alleged that it delivered a bank draft to the defendant in trust and that the defendant undertook to register a second mortgage on its behalf.

The defendant denied being retained by the plaintiff or making such an undertaking.

The court dismissed the motion, finding that there were genuine issues requiring a trial due to conflicting evidence, credibility issues, and the risk of inconsistent findings with two other related actions.

Melynda Layton sought to amend her statement of claim against the Canadian Dental Hygienists Association and the City of Ottawa.

The motion was granted in part.

The court allowed amendments for moral damages against the City and some amendments against the Association, provided references to a third-party property (11 Rosemount Street/Avenue) and multiple rights-of-way were removed.

The court denied amendments that relied on unspecified by-laws, legislation, or regulatory frameworks against the City, deeming them impermissibly vague.

The court also granted the City additional discovery time, finding that the three-hour limit under Rule 76.04(2) could be extended for just cause.

The defendant law firm, Addelman Baum Gilbert Robinson LLP, brought a motion to set aside a noting in default entered by the self-represented plaintiff, Deirdre Moore.

The plaintiff had sued two law firms for $1.75 million in damages.

The court found that the 20-day delay in filing a statement of defence by Addelman was not extensive and had a "real excuse" (counsel awaiting client file, Joseph Addelman on vacation).

The court criticized the plaintiff's "sharp practice" in noting default without providing the requested two weeks' notice, emphasizing that self-represented litigants are not exempt from professional courtesies.

Finding no prejudice to the plaintiff and significant prejudice to the defendant if not allowed to defend serious allegations, the court granted the motion to set aside the noting in default and allowed Addelman to deliver a statement of defence.

No costs were awarded due to the conduct of both parties.

The applicant, as estate trustee, brought a motion for directions seeking an order for a formal passing of accounts by the respondent for his time acting as their mother's Power of Attorney for Property.

The applicant also sought to have issues regarding a mortgage held in the respondent's name tried jointly.

The court dismissed the motion for a formal passing of accounts, finding that the respondent had already provided extensive informal accounting and the applicant failed to raise any significant concern or specific allegations of misfeasance to warrant a formal passing.

A case conference was ordered to address the remaining mortgage issues.

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.

The appellants (Roksana Hajrizi and her parents) appealed the dismissal of their action against the Ottawa-Carleton District School Board, a vice-principal, and another student, and sought leave to appeal the costs order.

The original action stemmed from an incident in 2009, leading to claims of misfeasance, intentional infliction of mental suffering, negligence, defamation, and conspiracy.

The trial judge dismissed the claims, finding Ms. Hajrizi's testimony not credible, and awarded substantial indemnity costs against the parents, with Ms. Hajrizi liable for a portion.

The Court of Appeal found no basis to interfere with the trial judge's findings, including credibility, and upheld the dismissal of the action.

Leave to appeal costs was denied, as the trial judge's reasoning for awarding costs against the parents and the quantum were deemed reasonable and proportional.

This is a costs endorsement following an 18-day jury trial that concluded as a judge-alone trial, where liability was resolved in favour of the defendants.

The defendants sought substantial indemnity costs, citing the plaintiffs' unfounded accusations of malice, dishonesty, and misfeasance, as well as counsel's prolix and repetitive trial conduct.

The plaintiffs argued for partial indemnity, alleging excessive lawyering, spoliation, and impecuniosity.

The court awarded substantial indemnity costs to the school board defendants, finding the plaintiffs' conduct warranted it, but reduced certain disbursements and capped the primary plaintiff's liability at $100,000.

The court affirmed that impecuniosity is generally not a sufficient reason to displace the rule that costs follow the event, especially for unmeritorious claims.