David A. Morin

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 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.

The plaintiff, Diana Lynn Monk, sued her insurer (Farmers’ Mutual) and broker (Muskoka Insurance) for property damage to her log home caused by a contractor's negligent restoration work.

The court found that while the damage was covered under the "all-risk" homeowner's policy, the plaintiff failed to provide timely notice of the loss as required by Statutory Condition No. 6.

Despite the court's finding that the breach was imperfect compliance rather than non-compliance, the plaintiff's conduct was deemed unreasonable, and the insurer suffered significant prejudice due to the delay.

Consequently, the court denied relief from forfeiture and dismissed the claims against both the insurer and the broker.

The plaintiff's property was damaged when a dam on a neighbouring property broke, releasing a deluge of water.

The defendant insurer denied coverage under the plaintiff's comprehensive homeowners policy, citing exclusions for ground water, surface water, and general water damage.

The plaintiff brought a motion for summary judgment on the issue of liability.

The court found that the initial grant of coverage applied and that the ground and surface water exclusions did not.

While the general water exclusion applied, the court held that the exceptions for the sudden and accidental escape of water from a sewer or drain, and for water entering through an opening created suddenly and accidentally, brought the loss back into coverage.

Summary judgment was granted to the plaintiff.

The defendant, Panolam Industries Ltd., brought a motion to compel the plaintiff, Robert John Kuiack, to produce a further and better affidavit of documents, including relevant documents from a prior disability claim against Manulife.

The plaintiff had sued Panolam for wrongful dismissal, breach of contract, and Human Rights Code violations after his long-term disability benefits were terminated and his employment was deemed frustrated.

Panolam argued that the plaintiff's prior disability claim and associated medical evidence were relevant to defend against the current action, particularly regarding the plaintiff's health status and intent to return to work.

The court largely granted the defendant's motion, ordering the production of the Manulife disability claims file, settlement documents, pleadings, undertakings/refusals, and clinical notes and records from specific physicians up to the end of 2013.

The defendants brought motions for summary judgment to dismiss the plaintiff's action for property damage insurance coverage.

The motion judge initially granted summary judgment based on a coverage exclusion, but the Court of Appeal reversed this finding and remitted the limitation period issue back to the motion judge.

The motion judge dismissed the summary judgment motion regarding the limitation period, finding that disputed conversations between the plaintiff and her insurance broker raised significant credibility issues that required a trial.

The plaintiffs sought costs following a successful six-day trial where they recovered over $292,000 in damages and interest from the defendant municipality.

The plaintiffs had made three formal offers to settle, all of which were exceeded at trial.

They requested partial indemnity costs until their first offer, and substantial indemnity thereafter, totaling $235,418.99.

The defendant opposed the requested hourly rates and argued for lower costs based on proportionality and the public significance of the issues.

The court found the plaintiffs' counsel's hourly rates reasonable, noting the defendant's "high-handed and dismissive" conduct prolonged the litigation.

The court held that the principle of indemnity substantially outweighed proportionality and the public interest argument, awarding the plaintiffs the full amount of costs requested.

Following successful summary judgment motions by the defendants in an insurance coverage dispute, the court determined the appropriate costs award.

The defendants sought substantial costs exceeding $140,000 combined.

Applying Rule 57 and the principle of proportionality, the court considered the novelty of the legal issue, the defendants’ delay in bringing the summary judgment motions, and the plaintiff’s good‑faith pursuit of a non‑frivolous claim.

The court also emphasized access to justice concerns given the modest value of the underlying claim.

Costs were significantly reduced and fixed at $30,000 payable to the insurer and $20,000 payable to the broker, inclusive of disbursements and HST.

The plaintiff sued a contractor for damages arising from water leakage into a basement foundation constructed under her trailer.

The court found that the contractor used a slab‑on‑grade method due to a high water table but failed to follow certain standard industry practices, including properly extending the waterproofing membrane and ensuring drainage measures consistent with the Building Code.

Expert evidence established that remedial work was necessary to prevent further water infiltration and bring the structure into compliance.

Claims for rental income, personal property damage, interior demolition, and general damages were largely rejected due to insufficient proof.

The court awarded damages for foundation remediation, anchoring of the trailer, interior repainting, and a contingency allowance.

Following a discovery-related motion concerning undertakings and production of Schedule B documents, the court determined the appropriate costs award.

Applying s. 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, the court emphasized the result of the motion and the parties’ settlement offers.

Although the defendant had agreed to disclose some documents prior to the hearing and had answered undertakings promptly, the court found the plaintiffs were ultimately more successful and had been required to bring the motion.

The court exercised its discretion to fix costs payable by the defendant to the plaintiffs.