D.A. Broad

In a costs endorsement following motions brought by co-defendants, the court held that a responding defendant was entitled to recover costs from the unsuccessful moving defendants because her participation was reasonable and directly engaged her vital interests.

The court declined to award costs against an insurer whose stay motion concerned only the contractual claim between it and the plaintiff.

Applying the principles that costs generally follow the event and must remain fair, reasonable, and proportionate, the court reduced the hours claimed and fixed costs on a partial indemnity basis.

Costs of $1,921.00 inclusive of HST were awarded against the moving co-defendants only.

A residuary beneficiary and co-estate trustee sought an order compelling his brother to pass accounts both as attorney for property under a power of attorney and as estate trustee of their late father’s estate.

The applicant alleged questionable financial transactions totaling over $145,000 and argued that piecemeal disclosure was insufficient.

The court held that while beneficiaries and co-trustees may seek an accounting under the Substitute Decisions Act and Estates Act, the remedy is discretionary.

Because the respondent had provided explanations through affidavit evidence and agreed to be cross‑examined, the court declined to order a formal passing of accounts at this stage.

The applicant retained the right to seek further directions or a formal accounting if cross‑examination proved inadequate.

Following a prior motion decision, the parties were unable to agree on costs and sought a determination from the court.

The defendants sought substantial indemnity costs, arguing the motion was vexatious and unnecessary, while the plaintiff sought partial indemnity costs and argued the motion was required to secure payment of outstanding costs awards and attendance for an examination in aid of execution.

The court held that success on a motion must be assessed by comparing the circumstances before and after the motion and whether the motion induced compliance.

The court found the motion was necessary to obtain payment of outstanding costs awards and to secure attendance for examination.

Partial indemnity costs were awarded to the plaintiff, reduced to reflect lack of success on one issue.

The moving defendants sought to set aside a noting in default and dismiss or stay an Ontario action arising from a motor vehicle collision in Pennsylvania on the basis that Ontario lacked jurisdiction and that Pennsylvania was the more appropriate forum.

Applying the framework in Club Resorts Ltd. v. Van Breda, the court held that a real and substantial connection existed because one alleged joint tortfeasor was resident in Ontario and the plaintiff claimed inseparable damages against multiple defendants.

The court further held that the moving defendants failed to demonstrate that Pennsylvania was clearly the more appropriate forum under the doctrine of forum non conveniens, particularly given that most witnesses and the plaintiff’s damages evidence were located in Ontario.

The motions to dismiss or stay the action were therefore dismissed, although the noting in default against the moving defendants was set aside on consent.

Following a motion in civil litigation, the parties were unable to agree on the quantum of costs payable to the successful party.

The plaintiff sought substantial indemnity costs exceeding $6,000, while the defendant argued that no costs should be awarded or, alternatively, that the claimed amount was excessive.

The court applied the governing principles under s. 131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, emphasizing that costs must be fair and reasonable and generally follow the event.

The court rejected the defendant’s submission that no costs should be awarded but found no basis for elevated costs and reduced the claimed fees and disbursements on proportionality grounds.

Costs were fixed on a partial indemnity basis.

Costs decision following a successful motion by defendants to set aside a default summary judgment.

The court considered whether the defendants, as the successful parties on the motion, were presumptively entitled to costs or whether the plaintiff should recover costs thrown away as a condition of setting aside the judgment.

The court held that where a default judgment is set aside, the non‑defaulting party may be compensated through costs thrown away even if unsuccessful on the motion.

As the plaintiff had complied with the Rules of Civil Procedure and the defendants failed to respond before judgment was obtained, fairness required compensating the plaintiff.

The plaintiff’s partial indemnity costs of responding to the motion were therefore included in costs thrown away.

The applicant sought interim spousal support following the breakdown of a 21‑year relationship and marriage with no dependent children.

The respondent acknowledged entitlement but disputed quantum, arguing declining corporate income and health issues.

The court applied the objectives of spousal support under the Divorce Act and principles governing interim support, emphasizing rough justice and maintaining the marital standard of living where the payor’s ability permits.

The court considered corporate income and retained earnings available to the respondent through a closely held corporation.

Interim spousal support of $8,500 per month was ordered, with retroactive effect and ancillary orders regarding health benefits and life insurance.

Following earlier reasons for judgment determining entitlement to funds held in trust, the successful respondents sought a costs award against the applicant.

The court applied the principles governing costs under Rule 57.01 of the Rules of Civil Procedure, including indemnification of successful litigants, encouragement of settlement, and deterrence of inappropriate litigation conduct.

The court also considered proportionality and the reasonable expectations of the parties, as articulated in appellate jurisprudence.

Although the respondents largely succeeded at trial, they prevailed on only six of nine claim categories, and proportionality concerns warranted some reduction.

The court reduced the fee component of the partial indemnity claim but allowed disbursements, ultimately fixing costs payable by the applicant to the respondents.

Following trial, the court determined costs relating to both the main action for unpaid invoices and the defendant’s counterclaim alleging damages relating to contaminated feed.

The plaintiff obtained judgment on the main action and successfully defended the counterclaim.

The court applied the principles governing costs under Rules 49 and 57 of the Rules of Civil Procedure, emphasizing proportionality, reasonableness, and the expectation of the losing party.

Substantial indemnity costs were awarded for the main action due to a valid Rule 49 offer to settle, while partial indemnity costs were awarded for defending the counterclaim because no reprehensible conduct justified elevated costs.

The court reduced certain expert disbursements and fees as excessive or unnecessary before fixing total costs.

In a second-degree murder prosecution, the accused brought pre‑trial applications seeking admission of several diary entries written by the deceased and toxicology results from a prior hospital admission.

The defence argued the diary entries demonstrated the deceased’s alleged propensity to associate with abusive men and supported a possible unknown third‑party suspect defence, or alternatively mitigated the impact of a prior letter describing abuse by the accused.

The court applied the governing test for third‑party suspect evidence requiring a sufficient connection between the proposed suspect and the crime.

Finding the proposed inferences speculative and unsupported by evidence linking any third party to the offence, the court held the diary entries lacked relevance and probative value.

The court also excluded the toxicology results, concluding their minimal probative value regarding alleged risk‑taking behaviour was substantially outweighed by the risk of jury speculation and distraction.

The defendants brought a motion under r. 37.14 of the Rules of Civil Procedure to set aside a summary judgment obtained in their absence.

The judgment had been granted after the defendants failed to attend the motion, which they asserted occurred through mistake and lack of awareness of the motion date while self‑represented.

The court held that r. 37.14 grants a broad discretionary power to set aside orders where a party fails to appear through accident, mistake, or insufficient notice.

Considering the absence of deliberate disregard of the process and the policy favouring adjudication on the merits, the court exercised its discretion to set aside the summary judgment.

The defendants were ordered to pay costs thrown away and the action was restored to the trial list.

The respondent brought a motion to set aside a default final order obtained at an uncontested trial requiring him to pay spousal support of $1,500 per month.

The court applied the discretionary test for setting aside default orders, examining whether the default was adequately explained, whether the motion was brought promptly, and whether there was an arguable defence on the merits.

The court found the respondent had not ignored the proceeding, had relied on former counsel, and demonstrated a genuine dispute regarding his income and ability to pay support.

Balancing the principle of finality with the preference for determining disputes on their merits, the court set aside the default order.

Because the support order underpinning enforcement no longer existed, the court also ordered the Family Responsibility Office to withdraw its federal licence denial application that had resulted in the suspension of the respondent’s passport.

Following a successful family law motion regarding parenting access and issues involving an investigation by the Office of the Children's Lawyer, the court determined the appropriate costs award.

The applicant sought substantial indemnity costs, alleging the respondent acted unreasonably by refusing access to the child and frustrating the OCL investigation.

The court found the respondent’s rigid refusal to permit access and her conduct during the clinical investigation constituted unreasonable behaviour warranting substantial indemnity costs.

However, the court reduced the claimed fees to reflect reasonable hourly rates, adjusted travel time, and applied a further reduction due to the respondent’s financial circumstances as a single parent with several children.

Costs were fixed at a reduced amount and ordered payable within 90 days.

Following a motion in family proceedings, the court determined the appropriate costs award.

The successful party sought substantial or full indemnity costs exceeding $4,800, while the opposing party argued that such elevated costs were not justified and challenged the time spent by opposing counsel.

The court held that criticisms of counsel’s time expenditures were unsupported without a comparative bill of costs from the opposing party.

Given that several issues were resolved through Minutes of Settlement and did not require argument, the court declined to award substantial indemnity costs and instead fixed costs on a partial indemnity basis.

Following an earlier endorsement resolving a motion regarding the release of funds from the proceeds of sale of a matrimonial home to address a tax debt owed to the Canada Revenue Agency, the parties provided written submissions on costs.

Each party asserted that they were the successful party and sought partial or substantial indemnity costs under Rule 24(1) of the Family Law Rules.

The court reviewed the circumstances of the underlying motion, including the respondent’s decision to seek funds from trust rather than pursue variation of a prior order restricting depletion of RRSPs and the applicant’s litigation conduct.

The court concluded that neither party could be fairly characterized as the successful party.

In the circumstances, the court ordered that each party bear their own costs.

Following a summary judgment motion, the parties were unable to agree on costs.

The defendants had sought dismissal of extensive extra‑contractual claims including allegations of bad faith, negligent claims handling, and mental distress damages totaling several million dollars, which the plaintiff abandoned on the eve of the motion.

Although the plaintiff successfully resisted dismissal of her contractual claim for non‑earner benefits, the court found the defendants were substantially successful because the principal damages claims were withdrawn or dismissed.

Applying the principles under s. 131(1) of the Courts of Justice Act and Rule 57.01, the court determined that costs should generally follow the event but must remain fair and reasonable in the circumstances.

The court fixed partial indemnity costs payable to the defendants in a reduced amount to reflect the plaintiff’s limited success on the motion.

The defendant brought a motion seeking an order requiring the plaintiff to undergo psychological testing as part of a defence medical examination in a civil action alleging historical assaults during a domestic relationship.

The defendant argued the testing would assist a psychiatrist retained by the defence in forming an opinion and responding to the plaintiff’s psychological expert evidence.

The court held that additional defence medical examinations are discretionary and require clear and compelling evidence demonstrating necessity.

The proposed testing was characterized by the defence experts only as helpful or beneficial rather than necessary.

The court also considered the risk of creating an imbalance in expert evidence and the potential delay to the scheduled trial.

The motion for psychological testing was dismissed.

The accused brought a Rowbotham application seeking a stay of proceedings until state-funded counsel was provided after Legal Aid Ontario denied funding.

The court considered whether the accused had established the three elements required for state-funded counsel: exhaustion of legal aid remedies, inability to retain counsel, and that counsel was essential to a fair trial.

The court found that the anticipated drug trafficking trial was relatively straightforward, involved limited witnesses, and did not raise complex legal issues.

The accused also failed to provide adequate financial disclosure or demonstrate reasonable efforts to secure private funding for counsel.

The application was dismissed.

The applicants sought an interim injunction preventing the respondent neighbour from erecting a fence across a narrow lane between adjoining residential properties.

The applicants claimed a prescriptive easement over the lane, asserting continuous, open, and uninterrupted use for over 50 years to access the rear of their property.

Applying the test in RJR‑MacDonald Inc. v. Canada (Attorney General), the court found a serious issue to be tried regarding the alleged easement.

The court further held that blocking the only exterior access to the applicants’ backyard and water meter would constitute irreparable harm and pose potential safety risks.

The balance of convenience favoured preserving the status quo pending determination of the application.

Following dismissal of claims against several defendants in a civil action, the court determined the appropriate costs awards.

Multiple defendants sought substantial indemnity costs on the basis that the plaintiff had advanced serious and unfounded allegations attacking their integrity.

The court reviewed the governing principles for costs under s.131 of the Courts of Justice Act and Rule 57.01, emphasizing reasonableness and the expectations of the parties.

Although the allegations were serious and unsupported, the court declined to award substantial indemnity costs, finding the self‑represented plaintiff appeared misguided rather than malicious.

Partial indemnity costs were awarded to the successful defendants in varying amounts, payable within 30 days.