David A. Morin

Following a trial where the plaintiff was awarded damages for building deficiencies against the builder and the municipality, the court determined the costs of the proceeding.

The plaintiff sought costs on a joint and several basis.

The court awarded the plaintiff partial indemnity costs but declined to make the order joint and several, instead apportioning liability for costs 65% to the municipality and 35% to the builder based on the relative amounts recovered.

The municipality was also awarded costs on its successful cross-claim against the builder.

The plaintiffs commenced two actions arising from the purchase of a property with structural issues: one against Stewart Title for breach of title insurance contract and a "tort action" against multiple parties (vendors, home inspector, township, contractors) for property defects.

Stewart Title moved to consolidate the two actions.

The plaintiffs and two defendants from the tort action (the vendors) opposed consolidation, preferring the actions be heard together or one after the other.

The court, applying Rule 6.01 of the Rules of Civil Procedure, conducted a costs/benefits analysis.

It rejected the notion of an elevated onus for consolidation and found that ordering the actions to be heard together, with common discoveries and pre-trial, best served efficiency and fairness.

This decision was primarily to avoid significant costs and delays associated with potential crossclaims and pleadings disputes that full consolidation would trigger, particularly regarding Stewart Title's potential subrogation claims.

The motion for consolidation was dismissed, and an order for the actions to be tried together was granted with specific directions for common pre-trial and discoveries.

The court issued supplementary reasons to correct three calculation errors in its original judgment (2020 ONSC 3060).

The errors involved the cost of insulating a wall, the omission of alternate living expenses and general damages from the judgment against Mark Grand, and an incorrect contingency reduction applied to damages payable by the Town of Bracebridge.

The corrections resulted in an increase in Mark Grand's liability for repair costs and out-of-pocket expenses, an increase in the total judgment against Mark Grand to include alternate living expenses and general damages, and an adjustment to the joint and several liability of the Town of Bracebridge and Mark Grand for damages.

The plaintiff purchased a renovated property from one defendant, discovering numerous building deficiencies.

He sued the seller for negligent construction and breach of the Ontario Building Code, and the municipality for negligent inspections and breach of statutory duty under the Building Code Act.

The court found the seller liable for negligent construction and breach of contract, and the municipality jointly and severally liable for conceded deficiencies that should have been caught during inspections.

The plaintiff's claim for contributory negligence was dismissed.

Damages were awarded for repairs, out-of-pocket expenses, alternate living expenses, and general damages.

The municipality's crossclaim against the seller for contribution and indemnity was granted, while the seller's crossclaim against the municipality was dismissed.

The appellants, a real estate agent and broker, appealed a trial judgment ordering them to pay damages to the respondents (purchasers) for water and mould damage to a residential home, due to the agent's negligence.

The appeal primarily concerned the measure of damages.

The Court of Appeal found that the trial judge erred by applying the cost of repair measure, as the appellants' negligence did not cause the property defect itself, but rather caused the respondents to enter into a transaction they would have otherwise avoided.

In such cases, the proper measure of damages is the diminution in value of the property.

The Court upheld the trial judge's findings on mitigation of damages and the foreseeability of frost heave damage.

The matter was remitted to the trial judge for reassessment of damages based on diminution in value and for a redetermination of costs from the first trial.

The plaintiffs purchased a home from the defendants, who had built the property themselves without a building permit.

Years later, the foundation wall collapsed due to excessive backfill and poor drainage.

The plaintiffs sued for negligent construction and negligent misrepresentation, alleging the defendants concealed the failing wall with a stud wall and made false statements on the Seller Property Information Statement.

The Superior Court of Justice found the defendants liable for both negligent construction and negligent misrepresentation, awarding the plaintiffs $100,000 in damages.

The plaintiff, an 18-year-old soccer player, suffered an electric shock from stray voltage leaking from a light pole at a municipally-owned sports field.

The shock was caused by internal damage to the pole's wiring resulting from a recent lightning strike.

The plaintiff sued the municipality under the Occupiers' Liability Act, claiming physical and psychological injuries, including PTSD.

The Superior Court of Justice dismissed the action, finding that the specific nature of the electrical failure was highly unusual and not reasonably foreseeable.

The court concluded that the municipality had met its standard of care by adhering to regular inspection and maintenance protocols, and was not liable for the plaintiff's injuries.

Following a trial where both the plaintiffs' construction claim and the defendants' counterclaims were dismissed, the court determined the issue of costs.

The plaintiffs had claimed $100,000 for deficiencies and breach of contract, while the defendants counterclaimed for mental distress and injurious falsehood.

Despite divided success, the court found the plaintiffs should not have pursued their claim and that the defendants were entitled to costs for defending the main action.

Applying principles of proportionality and reasonableness, the court awarded the defendants $70,000 in all-inclusive costs.

The appellant, a homeowner, sought indemnification under her property insurance policy for damage to her log house caused by a contractor's restoration work.

The trial judge found coverage existed but dismissed her claim due to late notice of the loss, denying relief from forfeiture.

The Court of Appeal upheld the dismissal but varied the costs awards, finding the trial judge had expanded the scope of issues beyond those directed by the appellate court in its prior decision, thereby increasing the appellant's reasonable cost expectations.

The appellant, FCT Insurance Company Ltd., appealed a trial judgment that found FCT responsible for losses sustained by the respondent, John Breen, arising from structural defects in a cottage property for which he had obtained title insurance.

The trial judge found that the defects rendered the title unmarketable and fell within the coverage of the title insurance policy, relying on the principles established in MacDonald v. Chicago Title Insurance Company of Canada.

The Court of Appeal allowed the appeal, finding that the trial judge erred in applying MacDonald to the facts of this case.

The court distinguished this case on two fundamental grounds: first, Mr. Breen was on notice at the time of purchase of potential problems with the building permit process; and second, even if a final inspection had been conducted, it would not have revealed the hidden construction defects.

The court concluded that the situation involved unmarketability of the land rather than the title, and that title insurance is designed to protect against defects that would be revealed by off-title searches, not hidden defects.

The appeal was allowed and the claim dismissed.

The plaintiffs hired the defendant contractor to build a dwelling on their property.

The contractor ceased work when the dwelling was 50% complete, citing the plaintiff's constant interference and abusive behaviour.

The plaintiffs sued for breach of contract, negligent misrepresentation, and negligence, arguing the contract was unenforceable because the contractor was not a registered Tarion builder.

The contractor counterclaimed for breach of contract and injurious falsehood based on internet posts and a complaint to Tarion.

The court found that the plaintiff breached the contract by interfering with construction methods.

However, the court dismissed all claims and counterclaims, finding no damages were proven by either party and that the Tarion complaint was protected by absolute privilege.

Following a previous decision fixing costs on a partial-indemnity scale at $144,679.55 subject to a credit from Pierringer Agreements, the parties agreed that no credit amount should be applied.

The court ordered the defendants to pay the plaintiffs the full fixed amount of $144,679.55 for costs, including taxes and disbursements.

The plaintiffs, successful in an action for water and mould damage, sought costs against the non-settling realtor defendants, Suzanne Martineau and Re/Max Hallmark Realty Limited, who were found 70% liable for damages totaling $450,215.35.

The plaintiffs requested substantial indemnity costs, arguing they had beaten their offers to settle.

However, the court found that the plaintiffs had revoked their formal Rule 49 offers prior to trial, precluding an award of substantial indemnity costs.

The court awarded partial indemnity costs, calculated at 70% of the plaintiffs' fees and disbursements, totaling $144,679.55, subject to a credit for amounts received from other settling defendants via Pierringer Agreements.

Further submissions were required to determine the exact credit amount.

The plaintiffs, Aden and Shirley Bowman, purchased a home that was later discovered to have severe undisclosed water and mould damage.

They brought an action against the vendors (Alma and Shelley Emond), their home inspector (Paul Studholme), and their real estate agent (Suzanne Martineau) and brokerage (Re/Max Hallmark Realty Limited).

The court found the real estate agent negligent for failing to provide and review the Seller Property Information Statement (SPIS) and for not disclosing known ongoing roof leaks.

The vendors were also found liable for concealing serious and ongoing leakage.

The home inspector was found not liable.

Liability was apportioned 70% to Martineau/Re/Max and 30% to the Emonds.

Damages were awarded based on the cost to repair the property, including consequential damages from foundation heaving, and out-of-pocket expenses.

The defendant, General Dynamics Land Systems - Canada, brought a motion seeking dismissal of the plaintiff's claim, primarily arguing that the Ontario Superior Court of Justice lacked jurisdiction over the subject matter, which it contended was exclusively vested in a labour arbitrator under a collective agreement and the Labour Relations Act.

The plaintiff, Helga Louise Brillon, opposed the motion, arguing that the defendant had attorned to the court's jurisdiction through delay and that the dispute's essential character concerned wrongful interference with long-term disability benefits, not arbitrable employment issues.

The court, distinguishing between Rule 17.06 and Rule 21.01(3)(a) motions, found that delay in bringing a subject matter jurisdiction challenge does not vest jurisdiction in the court but may affect costs.

Applying the "exclusive jurisdiction model" from Weber v. Ontario Hydro, the court determined that the essential character of the dispute was not clearly non-arbitrable.

Consequently, the court allowed the motion in part, staying the action and referring the matter to a labour arbitrator to determine the issue of jurisdiction, and dismissed the alternative request for summary judgment.

The appellants appealed the dismissal of their action for construction deficiencies in their cottage.

The motion judge had granted summary judgment to the respondents on the basis that the appellants' claims were statute-barred under the Limitations Act, 2002, finding that the claims were discoverable in 2009 when the appellants first noticed problems with a sinking deck pier.

The Court of Appeal allowed the appeal, finding that the motion judge made material misapprehensions of the expert evidence and erred in his discoverability analysis.

The court held that the appellants did not have sufficient knowledge of the construction defects until receipt of the Terraprobe report in 2012, which identified that the stone retaining wall and cottage foundation had been negligently constructed on loose soil.

The court emphasized that knowledge of a problem is insufficient; the claimant must know that the loss is non-trivial and that litigation is an appropriate remedy.

Following the successful summary dismissal of the plaintiffs' action due to the expiry of the limitation period, the successful defendants sought costs of $15,000 each.

The plaintiffs argued for a reduced amount of $10,000 each, noting the lack of settlement offers and the principle of proportionality.

The court applied the factors under Rule 57 and the principles from Boucher and Davies, concluding that the defendants' requested amount was fair and reasonable.

The plaintiffs were ordered to pay $15,000 in costs to each defendant.

The applicant sought an interlocutory injunction to suspend a building permit issued by the town for the construction of a dock on a neighbouring waterfront property.

The applicant argued the proposed location differed from a previously approved site plan and would eventually house a boathouse that would obstruct his view.

The court applied the RJR-MacDonald test and dismissed the motion, finding that while there was a serious issue to be tried regarding the planning process, the applicant failed to demonstrate irreparable harm from the dock's construction, and the balance of convenience favoured the respondent property owner.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' action for negligent construction of a cottage and retaining wall, arguing the claim was statute-barred.

The plaintiffs experienced slope failure and retaining wall movement in 2009 and received an engineering report identifying the issue, but did not commence their action until 2013.

The court found that the plaintiffs knew the basic essential facts giving rise to a claim upon receiving the 2009 engineering report.

The motion for summary judgment was granted and the action was dismissed.

Following the dismissal of the plaintiff's action against her insurance company and broker after a nine-day trial, the defendants sought costs on a substantial indemnity basis.

The defendants argued that the plaintiff made unsupported allegations of bad faith and failed to accept reasonable offers to settle.

The plaintiff argued for a reduced costs award based on the principle of proportionality, given the modest size of her claim.

The court declined to award substantial indemnity costs, finding that doing so would require the plaintiff to pay costs totalling more than four times the value of her claim.

Applying the principle of proportionality and the factors under Rule 57, the court awarded costs on a partial indemnity basis, fixing costs at $175,000 for the insurer and $115,000 for the broker.