Danielle Thomas

This costs decision follows the dismissal of the plaintiff’s claim after a two-day trial under the simplified procedure.

The defendant, having been entirely successful, sought costs on a substantial indemnity basis, relying on an offer to settle.

The court declined to award substantial indemnity costs, finding the offer did not justify a higher scale.

Considering the simplicity, short duration, and small amount at issue, the court awarded partial indemnity costs of $15,000 plus HST and disbursements, for a total of $19,197, payable within 90 days.

The plaintiff, Howard Walton operating as Norseman Racing Stable, sued Fort Erie Live Racing Consortium for negligence in assigning an incorrect carry weight to his horse, One Bay Hemingway, in the Lake Erie Stakes race.

The court found that while Fort Erie owed a duty of care to horse owners, it did not breach the standard of care in this case.

The error in carry weight assignment was not due to negligence by Fort Erie staff, who reasonably relied on available information.

The plaintiff’s claim was dismissed.

Stahle Construction Inc. appealed a trial judgment ordering it to pay general damages, out-of-pocket expenses, and costs to its former employee, Roberto Soave, for improper termination of long-term disability (LTD) coverage.

The Court of Appeal dismissed the appeal, affirming the trial judge's finding that Mr. Soave was disabled and eligible for LTD benefits prior to a car accident, despite Stahle's arguments regarding evidentiary burden and pleading.

The court found no palpable or overriding error in the trial judge's mixed findings of fact and law regarding disability and upheld the decision to determine the remitted issue.

The plaintiff sued its former lawyer's estate and professional corporation for negligence and breach of contract after the lawyer allowed a construction lien to expire by failing to set the action down for trial within two years.

The defendants conceded the breach of the standard of care but disputed causation and damages, arguing the plaintiff failed to mitigate by not enforcing a related judgment and that the property lacked sufficient equity.

The court found the plaintiff did not act unreasonably in relying on the lawyer's advice that the lien was valid.

Assessing the complex evidence on the contaminated property's retrospective value, the court determined there was equity in the property and fixed damages at $472,000.

Stahle Construction Inc. appealed a judgment ordering it to pay damages to Roberto Soave for improperly terminating his long-term disability benefits.

The trial judge found Soave was still employed and entitled to benefits.

On appeal, Stahle challenged the trial judge's refusal to admit an insurance policy, the weight given to an insurer's denial letter, and the interpretation of the Mercon Booklet regarding benefit eligibility.

The Court of Appeal upheld the trial judge's decisions on evidence admission and weight but found palpable and overriding errors in the interpretation of the Mercon Booklet's eligibility requirements for long-term disability benefits.

The court clarified that eligibility depended on disability at the time work ceased or becoming totally disabled during a leave if required by law, not merely continuation of coverage.

The appeal was allowed in part, and the matter remitted to the Superior Court for reconsideration of Soave's eligibility based on the correct interpretation.

The Town of Pelham adopted an Official Plan Amendment (OPA) and Zoning By-Law Amendment (ZBLA) to regulate indoor cannabis and industrial hemp cultivation, primarily to address odour concerns.

Several cannabis producers appealed.

Prior to the hearing, Phoena withdrew its appeal, and Redecan reached a settlement with the Town, which the Tribunal approved as representing good planning.

Woodstock continued its appeal, arguing it should be recognized as an existing facility and granted a site-specific exception.

The Tribunal dismissed Woodstock's appeal, noting it had never formally filed an application and must pursue approvals through the standard process established by the new OPA.

This endorsement arises from a case conference in a complex action involving TD Bank and numerous insurance underwriters.

The court addressed the management of three pending discovery motions (defendants' refusals, plaintiff's refusals, and defendants' motion for a second discovery representative) and trial management issues.

The court declined the plaintiff's request to expand their refusals motion, permitted the plaintiff to withdraw their existing refusals motion without prejudice, and vacated the scheduled trial date of September 13, 2021, as the action was not ready.

The court provided specific case management directions for completing discoveries, updating motion materials, and preparing for a future trial date.

In an insurance coverage action, the parties brought three motions regarding discovery refusals and the examination of a second discovery representative.

The judge determined that the motions were within the jurisdiction of a Master and, pursuant to the Toronto Region Consolidated Practice Direction, transferred the motions to a Master for determination.

The judge also ordered a case conference to address procedural deficiencies and ensure the orderly development of the motions for hearing.

This endorsement addresses the issue of costs following a successful motion for temporary spousal support and an unsuccessful motion for interim disbursements.

The court found the applicant to be the successful party, despite the respondent's offer to settle, as the respondent's core position on spousal support was rejected.

Costs were fixed at $3,000 on a partial indemnity basis, payable forthwith by the respondent and treated as spousal support for enforcement.

The applicant sought temporary spousal support and interim disbursements under the Family Law Act.

The parties, married for 14-15 years and separated for 6-7 years, had disparate incomes.

The court awarded the applicant $2,000 per month in temporary spousal support, less than the $4,000 sought, due to uncertainties regarding her income and earning capacity.

The motion for interim disbursements was dismissed as the matrimonial home was soon to be sold, providing the applicant with funds.