Darla A. Wilson

This endorsement addresses costs following the dismissal of a negligence claim brought by the plaintiff against his former solicitor.

The defendant, having successfully defended the claim, sought costs on a partial indemnity scale.

The plaintiff failed to submit any costs submissions.

The court awarded the defendant partial indemnity costs, fixed at $152,851.50, inclusive of fees, taxes, and disbursements, payable within 60 days.

The court found the amount reasonable, considering the complexity of the solicitor's negligence claim, the serious allegations of fraud made against the defendant, the plaintiff's unrealistic expectations, and his failure to cooperate during litigation.

This endorsement addresses costs following the dismissal of a medical negligence claim.

The plaintiffs, who were unsuccessful at trial, argued against a costs award due to their elderly age, poor health, and lack of assets.

The defendants, Bolton Medical Imaging Centres and Dr. K. Schneider, sought partial indemnity costs.

The court affirmed the general rule that costs follow the event, finding no exceptional circumstances to depart from this principle.

While acknowledging the plaintiffs' right to pursue the action, the court held they must bear the adverse costs consequences.

The court fixed the defendants' costs on a partial indemnity basis, reducing the amounts claimed by both defendants due to excessive hours for certain steps, particularly for Dr. Schneider's counsel.

The Plaintiff, Esau Max Wynter Jr., sought costs following a successful 8-day trial where he was awarded $53,231.00 plus prejudgment interest for excessive force used by the Defendants during a search warrant execution.

The Plaintiff requested $117,650 plus HST and disbursements on a partial indemnity scale.

The Defendants proposed $25,000 plus disbursements, arguing the case should have been under Simplified Procedure and costs were disproportionate.

The court, applying Rule 57.01, found the action was complex and not suitable for Simplified Procedure, noting the Defendants made no settlement offer.

The court fixed costs at $100,000 plus HST and $14,988.85 in disbursements, payable by the Defendants.

This motion concerned the approval of a tentative settlement under Rule 7 for a minor plaintiff who suffered catastrophic injuries in a boating accident.

The court refused to approve the proposed settlement of $57,500 due to deficient materials.

Concerns included unsatisfactory evidence on the defendant's potential liability, lack of information regarding insurance coverage for either boat, and inadequate affidavits from both counsel and the litigation guardian failing to properly justify the settlement given the severity of the plaintiff's injuries.

The court emphasized its gatekeeper function in Rule 7 motions and directed counsel to submit further, proper affidavit evidence.

This addendum to reasons for summary judgment addressed the disposition of a $50,000 US gift intended for a property for pilgrims in Poland.

The court found that the funds were misappropriated by an associate of the Plaintiff for personal use (car purchase and condominium down payment).

Despite a clear moral obligation for the Plaintiff or its associate to repay the funds, the court determined that any legal claim for their return was time-barred by the Limitations Act, 2002, as the donor was aware of the misuse in 2014.

The court also found the Plaintiff's allegations of impropriety against the defendant to be false and awarded costs to the defendants.

The applicant sought to clarify that an outstanding judgment of $63,538.56, arising from a global settlement in a divorce proceeding, constituted lump sum spousal support, thereby surviving the respondent's assignment in personal bankruptcy.

The respondent sought to terminate garnishment proceedings, asserting the debt was an equalization payment extinguished by bankruptcy.

The court found the outstanding amount to be lump sum spousal support, citing the applicant's entitlement to support in a lengthy marriage, the settlement's intent, the respondent's non-disclosure regarding mortgage refinancing, and the protective intent of bankruptcy legislation for support obligations.

The court dismissed the respondent's attempt to challenge the consent judgment and awarded costs to the applicant.

The plaintiff, Maison Saint-Michel, alleged forgery, theft, and fraud against the defendants, Jacek Morawa and Canadian Institute of Divine Mercy, concerning a deceased donor's condominium gift and its proceeds.

The defendants brought a motion for summary judgment to dismiss the claim.

The court found no credible evidence to support the plaintiff's allegations, noting the plaintiff's selective disclosure in a prior injunction application and its failure to respect the donor's conditional gifts.

The court dismissed the plaintiff's action with costs, concluding that the donor's wishes were for the funds to benefit the Polish Catholic community through the defendants, not the plaintiff's general coffers.

In a medical malpractice action concerning obstetrical negligence resulting in a child's severe brain damage, the jury found the defendant doctors breached the standard of care and caused the injuries.

The defendants brought a motion under Rule 52.08(1) arguing there was no evidence to support the causation finding, or alternatively, that the jury's answers on causation were unresponsive.

The trial judge found there was some evidence to support causation, but held that the jury's answers on causation were fatally flawed because they merely repeated the standard of care answers (as improperly suggested by plaintiffs' counsel) and failed to explain how the negligence caused the brain damage.

As a result, the trial judge refused to enter judgment on the verdict and ordered a new trial.

The plaintiff brought a civil action against the police for damages arising from injuries sustained during the execution of a search warrant at his apartment.

The police utilized a dynamic entry to secure the premises, suspecting firearms were present.

The court found that the officers used excessive force when they struck the sleeping plaintiff in the face and repeatedly hit him while he was pinned to the floor.

The plaintiff was awarded $50,000 in general damages for physical and psychological injuries, and $3,231 in special damages, but claims for punitive and aggravated damages were dismissed.

During a medical malpractice trial concerning an ulnar nerve injury sustained during orthopedic surgery, the defendants objected to the plaintiffs' expert orthopedic surgeon testifying on causation and standard of care issues not expressly stated in his written reports.

The court ruled that under Rule 53.03, an expert cannot testify on matters that open up a new field not mentioned in their report, nor can the court be left to infer opinions.

The expert was precluded from offering opinions on causation and the standard of care for the initial consultation, as these were not clearly articulated in his reports.

The plaintiff, an experienced real estate agent, sued his former solicitor for professional negligence arising from the purchase of several properties and subsequent legal services.

The plaintiff alleged the solicitor failed to advise him of a 1995 by-law registered on title that restricted development.

The court dismissed the action, finding that the plaintiff was a sophisticated purchaser who instructed the solicitor not to conduct detailed title searches to save costs.

Furthermore, the plaintiff failed to call expert evidence to establish the standard of care, failed to prove causation as his inability to develop the properties was due to financial constraints, and failed to adequately prove his damages.

The plaintiff obtained a judgment against the defendant debtor and subsequently brought an action alleging the debtor fraudulently conveyed properties to the other defendants.

The debtor later declared bankruptcy and was discharged.

The plaintiff brought a motion for summary judgment seeking damages against the transferees.

The court dismissed the motion, finding that the plaintiff failed to follow the correct procedure under the Bankruptcy and Insolvency Act, as the claim belonged to the bankruptcy estate and the plaintiff should have pursued remedies in bankruptcy court rather than seeking damages in civil court.

The plaintiff sued an imaging clinic and a radiologist for medical negligence, alleging a failure to diagnose breast cancer from mammograms and ultrasounds conducted in 2008 and 2009.

The court found no evidence that the clinic's imaging fell below the standard of care, noting that the plaintiff's dense breast tissue made imaging difficult but diagnostic.

The court also dismissed the claim against the radiologist, finding that his interpretation of the imaging was a reasonable exercise of clinical judgment and that he could not be judged retrospectively with the benefit of hindsight.

The action was dismissed.

The plaintiff appealed a Master's order requiring it to post security for costs.

The plaintiff argued that because its statement of claim included a request for an oppression remedy under the Business Corporations Act, it should be immune from a security for costs order.

The Superior Court of Justice dismissed the appeal, finding that the Master correctly determined the true essence of the action was a claim for unpaid invoices, not oppression, and therefore the security for costs order was appropriate.

The respondents (former husband and his father) brought a motion for summary judgment to dismiss the applicant's (former wife's) claim that a Separation Agreement should be set aside due to material misrepresentation and non-disclosure regarding the former husband's beneficial interest in a family trust.

The applicant opposed this motion and brought a cross-motion for a preservation order.

The court dismissed the respondents' motion for summary judgment, finding that there was a genuine issue requiring a trial regarding the materiality of the non-disclosure.

The court also granted partial summary judgment in favour of the applicant, finding that the former husband deliberately failed to disclose his interest in the trust and that the former wife did not have actual knowledge of this non-disclosure.

The cross-motion for a preservation order was dismissed.

The remaining issue for trial is the materiality of the non-disclosure and the appropriate remedy.

The Applicant sought a declaration of 50% beneficial ownership in the matrimonial home based on unjust enrichment and a constructive trust, or a monetary judgment.

The Respondent opposed this and claimed spousal support due to a post-separation slip and fall accident exacerbating a pre-existing condition.

The court dismissed the unjust enrichment claim, finding no deprivation to the Applicant and juristic reasons to deny the claim, including the deliberate decision to register the home in the Respondent's name for creditor protection and the Respondent's significant tax debt used for family purposes.

The court granted the Respondent time-limited spousal support, finding entitlement based on the long marriage, interdependence, and the pre-existing medical condition exacerbated by the accident, with support to begin when the youngest child starts university.

The plaintiffs, a married couple, brought an action in negligence against their former solicitor for mishandling multiple personal injury claims.

The solicitor failed to defend the action and was noted in default, leading to an undefended trial for the assessment of damages.

The court found the solicitor's conduct deplorable, noting improvident settlements for motor vehicle accidents and a complete failure to issue a claim or apply for statutory accident benefits for a slip and fall incident.

The court awarded the plaintiffs significant damages for non-pecuniary losses, past loss of income, and Family Law Act claims.

The plaintiffs' claim for personal injuries, stemming from a 2003 motor vehicle accident, was dismissed by the Superior Court of Justice.

The action, commenced in 2007, had a long history of delays, including the plaintiffs' repeated failure to attend court conferences, non-compliance with court orders, and requests for adjournments of peremptory trial dates without sufficient medical evidence.

Despite being granted numerous indulgences and warnings, the plaintiffs failed to proceed with the trial on the final peremptory date.

The court emphasized the need to control its procedure and ensure fairness to all litigants, noting that access to justice is not without limits and cannot be abused by disregarding court rulings.

The Plaintiff, David Bain, sought costs and pre-judgment interest following a successful wrongful dismissal trial against UBS Securities Canada Inc. and UBS Securities LLC, where he recovered over $2.5 million.

The court, applying Rule 57.01 factors and the principle of proportionality, fixed partial indemnity costs for the Plaintiff at $225,000 plus HST of $29,250 and disbursements of $15,000, totaling $269,250.

The court also determined that pre-judgment interest should be calculated on a lump sum basis, awarding $122,756.03, given the Defendants' failure to provide salary continuance or a bonus upon termination.

The plaintiff sued the defendants for personal injuries sustained at a party.

The defendant McKellar's insurer appointed counsel to defend him under a reservation of rights, as the claim exceeded policy limits.

McKellar retained personal counsel for his over-limits exposure.

The insurer-appointed counsel negotiated a settlement within policy limits, which the plaintiff accepted.

McKellar's personal counsel objected to the settlement and brought a motion to be appointed co-counsel, seeking to have his legal fees paid from the settlement proceeds.

The court dismissed the motion, finding no divergence of interest between the insurer and the insured, and granted the plaintiff's motion for judgment in accordance with the settlement.