Darla A. Wilson

Following the settlement of a motor vehicle accident claim on the eve of trial, the court was asked to approve the settlement of a Family Law Act claim for a party under a disability and to fix costs.

The court approved the FLA settlement at $30,000 plus interest.

On the issue of costs, the court held that the plaintiff was entitled to claim time spent recovering accident benefits as part of the tort action costs, as the two are inextricably linked.

The court fixed the plaintiff's costs at $100,000 for fees and $44,534.29 for disbursements on a partial indemnity basis, and awarded interest on the delayed settlement funds.

The applicant purchaser sought a declaration that an open building permit relating to a garage constituted a valid objection to title under an agreement of purchase and sale for residential property.

The respondent estate argued the permit was inconsequential because no work had been undertaken and the permit merely authorized construction rather than requiring it.

The court held that an outstanding building permit creates potential exposure to municipal inspections, work orders, remedial construction, and litigation, thereby affecting the purchaser’s use and enjoyment of the property.

Given the uncertainty surrounding whether the permit could be closed and the potential cost of compliance, the permit constituted a defect going to the root of title.

The purchaser’s requisition requiring the permit to be closed was therefore valid and the respondent had not shown good title.

Following a jury trial arising from a motor vehicle accident where liability had been admitted, the plaintiff recovered damages of $280,525.60.

The parties disputed entitlement to costs in light of competing offers to settle under Rule 49 of the Rules of Civil Procedure.

The court held that the defendant’s offer to settle for $375,000 complied with Rule 49 and triggered the usual cost consequences because the plaintiff obtained a judgment lower than the offer.

The plaintiff was therefore entitled to partial indemnity costs only up to the date of the defendant’s offer, while the defendant was entitled to partial indemnity costs thereafter.

The court reduced both parties’ claimed fees and disbursements as excessive and fixed costs at equivalent amounts, resulting in a full set‑off.

Following a successful Rule 21 motion striking claims against an individual defendant in a wrongful dismissal action, the court addressed costs after the plaintiff requested an opportunity to make submissions.

The defendant sought substantial indemnity costs, relying in part on an offer to settle proposing dismissal of the claim without costs.

The plaintiff argued the defendant was not fully successful because leave to amend had been granted and contended that efforts to resolve the motion and proposed amendments justified either no costs or costs in the cause.

The court held that the defendant was the successful party on the motion and that the usual rule that costs follow the event applied.

The previously ordered costs of $12,500 payable by the plaintiff to the defendant were confirmed as fair and reasonable.

An employee brought an action for wrongful dismissal claiming entitlement to common law reasonable notice after termination following more than seventeen years of service.

The employer relied on a termination clause in an earlier employment agreement entered into with a predecessor company that provided only Employment Standards Act minimum notice plus four additional weeks’ salary.

The court held that the employment contract survived the corporate amalgamation and was binding on the successor company.

The employee continued working for nearly a decade after the acquisition, accepted modifications to certain terms, and never communicated repudiation of the contract.

The termination provisions of the original employment agreement therefore governed the employment relationship.

The respondent sought costs following a successful cross-motion to enforce access and the dismissal of the applicant's motion for private school tuition.

The court found the applicant's behaviour unreasonable, noting her motion lacked merit and she unilaterally terminated access despite a separation agreement.

The respondent had made a reasonable offer to settle that was more favourable than the final order.

Applying the Family Law Rules, the court awarded the respondent costs on a full indemnity basis.

However, finding the docketed hours excessive, the court reduced the claimed amount of $40,829.62 and fixed costs at $25,000.00.

A real estate brokerage sued for payment of commission arising from the sale of a commercial property after the vendor refused payment.

The vendor argued that the listing agreement had been cancelled, that the brokerage did not introduce the purchaser during the listing period, and that the commission had effectively been paid through other benefits.

The vendor also counterclaimed alleging breach of fiduciary duty and negligence by the broker for failing to document an alleged price adjustment agreement that led to related litigation.

The court found that the broker introduced the purchaser during the currency of the listing agreement and that the sale agreement was executed within the holdover period, entitling the brokerage to commission.

The court rejected the alleged cancellation, rejected claims of payment “in kind,” and dismissed the counterclaim due to lack of credible evidence.

The plaintiff and defendant were participating in a charity bicycle ride on a closed highway.

The plaintiff alleged that the defendant suddenly swerved into his path, causing a collision and injuries.

The court found that the defendant owed a duty of care to the plaintiff and that the appropriate standard of care was negligence, not recklessness.

The court concluded that the defendant breached this standard by making a sudden, unpredictable movement contrary to the rules of group cycling.

The court also held that the waiver signed by the plaintiff did not release other participants from liability for negligence.

Liability was found against the defendant.

The respondent father brought a motion seeking unsupervised interim access to the child in accordance with a prior court order, while the applicant mother brought a cross‑motion to suspend the access order and require supervised access at a centre along with interim sole custody.

The mother alleged physical abuse and safety concerns during access visits, relying on affidavits from relatives and friends, photographs of minor bruising, and statements attributed to the three‑year‑old child.

Investigations by the Children’s Aid Society and police found no protection concerns or evidence of excessive force by the father.

The court found the mother’s evidence largely hearsay and unsupported by objective evidence, and concluded she had repeatedly resisted and interfered with court‑ordered access.

The court reinstated the previously ordered schedule progressing from supervised access to unsupervised and overnight visits, and dismissed the mother’s cross‑motion.

The plaintiffs brought a motion to strike the defendant’s jury notice in a negligence action arising from a bicycle collision during a charity ride.

The defendant amended the statement of defence to plead the doctrine of volenti non fit injuria and reliance on a signed waiver releasing liability.

The court held that the waiver and the volenti defence would necessarily require evidence and argument concerning the interpretation and legal effect of the waiver, raising issues of law intertwined with the liability determination.

The court concluded that a jury could be confused by the waiver and might improperly interpret it as barring the lawsuit altogether.

Justice was better served by striking the jury notice and proceeding with a judge-alone trial.

During a jury trial for damages arising from a motor vehicle accident, the plaintiff sought to qualify a chiropractor as an expert to testify about an in‑home functional assessment.

The court conducted a voir dire to determine whether the proposed testimony satisfied the admissibility criteria for expert evidence under R. v. Mohan.

The judge found the proposed opinion exceeded the witness’s professional expertise, overlapped with evidence already provided by more qualified medical experts, and largely repeated the plaintiff’s own testimony.

Because the proposed evidence lacked necessity and probative value, the witness was not qualified as an expert.

The ruling emphasizes the trial judge’s gatekeeping role in scrutinizing expert evidence and preventing unnecessary or duplicative expert testimony.

The defendant, Dr. Lalonde, brought a motion to strike the plaintiff's statement of claim against him for disclosing no reasonable cause of action and for being frivolous, vexatious, or an abuse of process.

The plaintiff, a former CFO of the co-defendant SOGC, alleged that Lalonde committed intentional torts including deceit, intentional interference with contractual relations, inducing breach of contract, and sexual harassment.

The court found that the pleadings failed to establish the essential elements of the intentional torts, particularly the requisite intent and reliance.

The court also held that there is no freestanding tort of harassment.

The claim against Lalonde was struck, but the plaintiff was granted leave to amend.

The applicant law society brought a motion to discharge a trusteeship previously ordered over the respondent lawyer’s practice under the Law Society Act.

The trusteeship had been established to secure client files, trust funds, and other records following the cessation of the respondent’s practice.

The respondent opposed the discharge, repeating arguments that the original trusteeship order lacked jurisdiction and that the destruction of inactive client files was unauthorized.

The court held that these issues had already been determined in prior proceedings and could only be challenged on appeal.

Finding that the trusteeship administration was complete and that no further services of a trustee were required, the court discharged the trusteeship and awarded costs and compensation to the applicant.

Following settlement negotiations in a personal injury action arising from a motor vehicle accident, the parties sought a judicial determination of whether an earlier Rule 49 offer to settle remained open for acceptance after the defendants delivered a subsequent “revised” offer.

The plaintiffs purported to accept the original offer after the revised offer clarified the allocation of damages and limited prejudgment interest to certain heads of damages.

The court held that the revised offer constituted a new offer that implicitly withdrew the earlier offer.

Even if the original offer had remained open, the plaintiffs could not reasonably rely on its literal wording because they knew the revised terms limited the interest calculation.

The court concluded that the original offer was not open for acceptance when the plaintiffs attempted to accept it.

Following a jury verdict finding that a motor vehicle accident did not cause injury to the plaintiff, and dismissal of the action on the statutory threshold for non‑pecuniary damages, the court determined the appropriate costs award.

The defendants sought substantial indemnity costs based on alleged misconduct and a withdrawn Rule 49 offer to settle.

The court held that substantial indemnity costs were not justified because the plaintiffs’ conduct was not reprehensible and the defendants’ offer had been withdrawn prior to trial, removing automatic Rule 49 consequences.

However, the defendants were the successful parties and were entitled to partial indemnity costs throughout, with the court fixing a lump sum award after considering proportionality, trial complexity, and counsel conduct that lengthened the proceeding.

The defendants brought a Rule 21 motion to strike an amended statement of claim on the basis that it disclosed no reasonable cause of action and was an abuse of process due to a related proceeding.

The court applied the stringent Rule 21 test and held that most of the pleaded causes of action—including breach of an implied contractual duty of good faith, inducement of breach of duty, inducement of breach of fiduciary duty, and intentional interference with economic relations—were not plainly doomed to fail and therefore should proceed.

However, the conspiracy claim failed to properly plead the necessary elements and was struck with leave to amend.

The request to stay the proceeding due to a separate action involving a solicitor and law firm was rejected because the parties and subject matter were not the same.

Costs were awarded to the responding parties.

A contractor brought a motion for summary judgment seeking dismissal of a tenant’s subrogated claim for water damage caused by vandalism in a shopping mall.

The tenant argued the contractor negligently failed to secure a construction area that allowed a trespasser to access a fire hose, causing flooding.

The contractor relied on a lease clause containing a mutual release and waiver of subrogation between landlord and tenant extending to parties “for whom the landlord is responsible in law.” Applying the principles from Fraser River and London Drugs, the court held the parties intended the waiver to extend to contractors performing renovation work for the landlord.

The court concluded the contractor fell within the protected class and that the claim was barred, making a trial unnecessary.

The defendant landlord brought a Rule 21.01(b) motion to strike portions of an amended statement of claim alleging breach of an implied contractual duty of good faith in relation to the termination of a commercial lease.

The plaintiff tenant alleged it was promised 18 months’ notice to vacate but received significantly less, asserting that the landlord’s conduct breached an implied duty of honest and good faith performance.

The court held that Canadian jurisprudence does not recognize an implied duty of good faith that would impose additional obligations inconsistent with the express terms of a commercial lease.

Accepting the pleaded facts as true, the alleged conduct did not defeat the purpose of the lease and could not sustain a claim for breach of an implied duty of good faith.

The impugned paragraphs were struck for disclosing no reasonable cause of action, with leave to amend.

Following a jury verdict in a statutory accident benefits action, the court determined post‑trial issues concerning transportation expense deductibles, interest on overdue benefits, and costs.

The insurer argued that the statutory 50‑kilometre deductible applied to transportation expenses and sought to call additional evidence, but the court refused and held the deductible did not apply because the insurer had waived it and the insured was unable to drive during the relevant period.

On the issue of interest under the Statutory Accident Benefits Schedule, the court applied appellate authority holding that interest on overdue benefits runs from the date the benefit first became overdue, even if the insurer did not know the correct amount at the time.

The court also considered competing offers to settle and concluded that the plaintiff was the successful party overall.

Costs were awarded to the plaintiff on a partial indemnity basis.

Following a lengthy condominium dispute trial involving claims of solicitor negligence, construction defects, and condominium governance issues, the court addressed the allocation of costs among multiple parties.

The plaintiff succeeded against the solicitor defendant but failed against several other defendants, including the condominium corporation and property management company.

Applying the principles under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court assessed reasonable expectations, proportionality, litigation conduct, and Rule 49 settlement offers.

The court issued a Sanderson order requiring the negligent solicitor defendant to pay the costs of the successful condominium defendant, while also apportioning part of the successful property manager’s costs between the plaintiff and the solicitor defendant.

Substantial costs awards were fixed reflecting the complexity and length of the litigation.