C. Stephen Glithero

The plaintiff brought a motion to extend the time to restore its construction lien action to the trial list and to prevent an impending administrative dismissal, pending its appeal of a previous order that refused to restore the action.

The defendants argued the motion was unnecessary because the Divisional Court has jurisdiction to set aside an administrative dismissal if the appeal succeeds.

The court agreed with the defendants, finding the motion unnecessary and dismissing it, as the appellate court's powers under the Courts of Justice Act and the Rules of Civil Procedure are sufficient to remedy any intervening administrative dismissal.

The defendant in a will challenge action brought a motion to strike portions of the plaintiff's statement of claim.

The defendant argued the plaintiff lacked standing to seek an accounting and disgorgement of funds allegedly misappropriated by the defendant prior to their mother's death, as the plaintiff was not a beneficiary under the impugned will.

The court dismissed the motion, finding it was brought late in the proceedings, would not terminate the action, and that the plaintiff had sufficient appearance of a financial interest under a prior will to give her standing to advance the claims.

The defendant moved for summary judgment to dismiss the plaintiffs' action, alleging it was statute-barred by the Limitations Act, 2002, or alternatively, by an executed release.

The action concerned alleged defects in the basement floor slab of a new home.

The court found that the plaintiffs had discovered their claim well before the two-year limitation period preceding the statement of claim's issuance and that ongoing communications or investigations did not extend the period.

The court also upheld the validity of a release signed by the plaintiffs.

The plaintiffs sued Mike Roth (operating as Enviromasters Lawn Care) and 2127668 Ontario Inc. for defective backyard renovations, including a retaining wall, wooden fence, and concrete patio.

A-D Engineering Group Ltd. was also a defendant, having prepared engineering drawings.

Roth and the numbered company did not appear at trial.

The court found Roth personally liable for breach of contract and negligence, as he failed to properly disclose he was contracting on behalf of a corporation and the work was shoddy.

Damages were assessed based on the cost to remedy the defects, adjusted for betterment.

The action against the numbered company was stayed due to bankruptcy, and all cross-claims were dismissed.

Following a successful motion for summary judgment dismissing the plaintiff’s action, the defendant sought costs on a partial indemnity basis.

The plaintiff provided no submissions despite being invited to do so.

After reviewing the docketed time, hourly rates for counsel and law clerk, and the factors under Rule 57 of the Rules of Civil Procedure, including delays in the prosecution of the action by the plaintiff, the court found the claimed costs reasonable.

The court fixed costs payable by the plaintiff to the defendant for fees and disbursements.

An elderly pedestrian brought an action against a municipality after tripping on a raised sidewalk slab and sustaining serious injuries including a fractured hip requiring replacement.

The court found that a height differential of 15/16 inch between sidewalk slabs constituted a condition of non-repair under s.44 of the Municipal Act, 2001.

The municipality failed to follow its own annual inspection policy and did not establish a statutory defence.

The court accepted the plaintiff’s evidence regarding the measurement of the defect and rejected conflicting measurements from municipal witnesses.

Liability was established but the plaintiff was found 30% contributorily negligent for failing to watch where she was walking.

The plaintiff brought a slip-and-fall action after falling on a steep municipal sidewalk covered by fresh snow over hidden ice beside a deteriorated pedestrian handrail.

Liability turned on whether the municipality's winter maintenance failures amounted to gross negligence under s. 44 of the Municipal Act and whether late notice was excused.

The court found prolonged failures to clear, salt, or sand a busy steep sidewalk, combined with the unusable handrail, constituted gross negligence.

The plaintiff was found careful, not contributorily negligent, and her delayed notice was excused because she reasonably waited to see whether her symptoms would resolve and the municipality suffered no prejudice.

Following a joint family and civil trial where the applicant was largely successful, the court determined the issue of costs.

The respondent, who was self-represented at trial, failed to submit costs materials.

The court considered the applicant's offers to settle, which she beat at trial, and the respondent's unreasonable behaviour that lengthened the proceedings.

The court awarded the applicant costs of $60,250 for fees and $11,705.15 for disbursements, plus HST.

The insurer moved for summary judgment dismissing an action for non-earner benefits brought by an insured who had previously elected and received income replacement benefits after a motor vehicle accident.

The court held that s. 36 of the Statutory Accident Benefits Schedule barred recovery of non-earner benefits for any period during which income replacement benefits had already been paid.

However, the legislation did not preclude concurrent actions seeking income replacement benefits and non-earner benefits for the period after the insurer terminated the income replacement benefits, with the ultimate entitlement to be determined at trial.

Partial summary judgment was therefore granted only for the period when income replacement benefits were actually paid.

Following dismissal of a motion to compel arbitration, appoint an arbitrator, and stay the action, the court determined the defendants' costs entitlement.

The successful defendants sought substantial indemnity costs based on service timing complaints, an unaccepted offer to settle, and alleged improper submissions by the plaintiff.

The court rejected those bases for elevated costs, held that the offer to settle did not justify a costs advantage, and applied the Rule 57 factors.

Partial indemnity costs were fixed at $10,000 inclusive of disbursements and HST, payable within 30 days.

The plaintiff brought a motion seeking to compel the defendants to participate in binding arbitration, appoint an arbitrator, and stay the court action pending arbitration arising from a commercial services contract.

The contract containing the arbitration clause was between the plaintiff and one defendant only, while the action also named a second defendant who was not a party to the arbitration agreement.

The court held that under s. 7 of the Arbitration Act, 1991 a party who commenced a court proceeding cannot move for a stay of that proceeding in favour of arbitration.

The court further found that compelling arbitration against only one defendant while staying the action against the other would risk multiplicity of proceedings and inconsistent results.

The motion was dismissed and the matter allowed to proceed in a single court proceeding.

Following a wrongful dismissal trial where the plaintiff was awarded damages based on a three‑month notice period totaling $32,425.39, the court determined the appropriate costs award.

The plaintiff sought substantial indemnity costs exceeding $60,000 or alternatively partial indemnity costs of approximately $41,530, while the defendant argued that $25,000 all‑inclusive was appropriate.

Applying Rule 57.01 and considering proportionality in simplified procedure cases, the court emphasized that costs must be reasonable relative to the amount in dispute and recovery obtained.

The court also considered the plaintiff’s partial success, unsuccessful inducement arguments, and the significant legal resources devoted to a short trial involving modest damages.

Costs were fixed at $25,000 inclusive of fees, disbursements, and HST payable by the defendant to the plaintiff.

The plaintiff bank sued to recover $494,425 obtained by the defendant Vincenzo Storr through fraudulent credit card cash advances.

The plaintiff sought to trace the funds into the accounts of Vincenzo's family members and related entities, arguing they were subject to a constructive trust.

The court found that Vincenzo obtained the funds by fraud and that the family members who received the funds were liable under the doctrine of knowing receipt, as the circumstances ought to have put them on inquiry.

The court granted judgment against Vincenzo and the family members who received the funds, while dismissing the claims against the corporate entities.

An employee brought an action for wrongful dismissal after termination without notice.

The employer relied on a termination clause limiting notice to the minimum required by the Employment Standards Act, 2000.

The court held that although the clause clearly referenced the statutory minimum notice period, it failed to provide for continuation of benefits during the notice period, contrary to the ESA.

As a result, the entire termination clause was void and the employee was entitled to common law reasonable notice.

Applying the Bardal factors, the court determined that three months’ reasonable notice was appropriate and awarded damages including salary, car allowance, pension contributions, and modest special damages.

Following a successful trial judgment awarding damages for unpaid loans, the court determined the appropriate costs award.

The successful plaintiff sought partial indemnity costs to the date of a settlement offer and substantial indemnity costs thereafter, relying on Rule 57.01 and the fact that the trial result exceeded the offer.

The court reduced certain trial preparation hours but otherwise found the rates and time spent reasonable.

A co-defendant who had not opposed the claim but had defended against cross-liability from the other defendant was also awarded costs.

Costs payable by the remaining defendant were fixed notwithstanding a consumer proposal filed under the Bankruptcy and Insolvency Act after trial but before the costs determination.

Following a six-day family law trial addressing custody, child support, spousal support, and property issues, the court determined costs after receiving written submissions from both parties.

Each side claimed to be the successful party and sought significant costs.

The court reviewed the divided success on issues including joint custody with primary residence to the respondent, denial of spousal support, partial success on child support claims, and property-related relief.

Applying the principles under the Family Law Rules and the Courts of Justice Act, the court concluded that success was mixed and that the conduct of both parties contributed to the litigation.

In the circumstances, the fair and reasonable result was for each party to bear their own costs.

The plaintiff father brought an action against his son and former daughter-in-law to recover over $98,000 in financial advances made during their marriage.

The son admitted the advances were loans and claimed joint liability, while the former daughter-in-law argued they were gifts.

The court found the advances were loans, noting the presumption of advancement does not apply to adult children and the daughter-in-law failed to prove an intention to gift.

Judgment was granted in favour of the plaintiff against both defendants jointly and severally.

A family law dispute involving custody, child support, spousal support, and property issues following the breakdown of a short cohabiting relationship.

The court determined that the parties should have joint custody of the child born of their relationship, with primary residence with the mother and defined parenting time for the father.

The court found the father had stood in the place of a parent to two of the mother’s other children and ordered limited child support for them for a fixed period.

The mother was denied spousal support due to the short relationship and her voluntary unemployment, with income imputed to her.

The court declined to order the sale of the jointly owned home under the Partition Act and allowed the mother an opportunity to purchase the father’s 5% interest.

Following the dismissal of a motion to amend a statement of claim to add an oppression claim under s.248 of the Business Corporations Act, the successful defendant sought costs of the motion.

The defendant requested partial indemnity costs based on 50.4 hours of counsel time.

The court found the claimed hours excessive for a routine motion that took less than half a day and concluded that 20 hours would have been reasonable at the claimed hourly rate under Rule 57.01 of the Rules of Civil Procedure.

However, considering the broader circumstances of the dispute, including that the defendant retained $500,000 advanced by the plaintiff while denying liability, the court exercised its discretion to decline awarding costs.

No costs were ordered.

Following a bitterly contested motion regarding child custody where the respondent was wholly successful, the respondent sought costs of $13,671.87 on a full recovery basis, including costs for prior appearances, and requested they be payable personally by the applicant's counsel.

The court awarded the respondent costs fixed at $4,000 for fees plus disbursements and HST, limited to the motion before the court.

The court declined to order costs against counsel personally and refused to delay payment until the sale of the matrimonial home, ordering payment within 30 days.