David Cutler

Costs endorsement following a successful motion by the plaintiff law firm regarding documentary production obligations.

The plaintiff sought substantial indemnity costs of $12,694, while the defendant argued $5,000 was reasonable given the novelty of the privilege issues.

The court found the defendant's pre-litigation conduct reprehensible, including depositing client funds into a personal account, soliciting cash payments, and making disparaging remarks about clients.

The defendant's blanket refusal to produce documents under the guise of solicitor-client privilege, despite the plaintiff's practical attempts to resolve the matter, further warranted elevated costs.

Costs were awarded on a substantial indemnity basis in the full amount of $12,694.

The plaintiff brought a motion for partial summary judgment to recover $2.26 million ($2 million plus HST) owed under a promissory note arising from a share purchase agreement for a construction and development corporation.

The defendants opposed, asserting set-off defences and an $8.5 million counterclaim alleging breach of contract, negligence, and negligent misrepresentation related to cost overages on a construction project.

The court found no genuine issue for trial on the plaintiff's claim, holding the promissory note obligation was discrete and readily separable from the counterclaim.

Partial summary judgment was granted but execution was stayed on condition the judgment amount be paid into court within 45 days pending adjudication of the counterclaim.

The plaintiff brought a motion for summary judgment seeking $883,197 for the redemption of his Class D shares in a family business following an estate freeze, plus $30,000 for a promissory note.

The defendants argued that the plaintiff had already received partial payment through weekly transfers and expense reimbursements based on an oral agreement.

The court dismissed the motion, finding that the dispute centered on unwritten agreements and conflicting evidence that required credibility assessments which could not be resolved on a written record.

The plaintiff sued for damages arising from the defendants' refusal to close a real estate transaction for commercial property intended for condominium development.

Liability for breach of contract was previously determined by summary judgment.

At trial to quantify damages, the plaintiff sought disgorgement of profits or, alternatively, expectation damages including reimbursement of development expenses.

The court declined to award gain-based restitution but awarded expectation damages to make the plaintiff whole, comprising the $323,000 difference between the purchase price and the land's value on the closing date, plus 90% of the plaintiff's out-of-pocket development expenses ($1,062,901).

The defendants' counterclaim was allowed in part for admitted debts and rent up to the date of breach.

The plaintiff sought default judgment against a chiropodist who performed allegedly unnecessary and harmful stent insertion surgery on both of his feet.

The defendant failed to deliver a statement of defence.

The court granted default judgment, finding the pleaded facts established negligence and lack of informed consent.

The court awarded $150,000 in general damages, $81,624 for past loss of income, $180,000 for future loss of income, plus prejudgment interest and costs.

The defendants brought a motion to amend their statement of defence to include a counterclaim in a simplified procedure action.

The plaintiffs consented to the amendment but requested further oral discovery to question the defendants on the counterclaim and newly produced documents, specifically a Code of Conduct.

The court granted the amendment and allowed the plaintiffs an additional 45 minutes of discovery, finding that the Code of Conduct should have been produced earlier and would have been a legitimate area of inquiry.

Costs of the motion were awarded to the plaintiffs.

The plaintiffs brought a motion for partial summary judgment on liability in a solicitor's negligence action against their former lawyer and his firm.

The plaintiffs alleged the lawyer failed to prepare a promissory note to support a General Security Agreement, weakening their bargaining position with a debtor.

The court found that while the lawyer breached the standard of care by acting in a conflict of interest and failing to prepare the note, the plaintiffs suffered no compensable loss as the debt was recognized, secured, and largely repaid.

The court dismissed the plaintiffs' motion and granted a 'boomerang' summary judgment dismissing the action entirely.

The plaintiff moved to strike the defendant's jury notice in a motor vehicle accident action due to trial delays caused by the COVID-19 pandemic.

The action had been set down for trial in August 2018 and was scheduled for a four-week jury trial in March 2021.

The court granted the motion, finding that the defendant's prima facie entitlement to a jury trial must yield to the overriding interests of justice, which include the timely resolution of civil disputes.

Given the suspension of civil jury trials in Ottawa and the capacity for in-court non-jury matters, justice would be better served by discharging the jury.

The defendant brought a motion to consolidate a civil action with a family court application.

The civil action involved a dispute over whether a $250,000 transfer of funds from the plaintiff to the defendant was a loan or a gift, while the family court application involved the enforcement of a separation agreement and equalization of net family property.

The court applied the factors for consolidation under Rule 6.01 and found that while there were common questions of fact, the balance of convenience favored allowing the civil action to proceed to a summary trial independently.

The motion to consolidate was dismissed.

The defendants brought a motion to exclude the co-plaintiffs from each other's examination for discovery in an action regarding a denied insurance claim for residential theft.

The defendants argued that credibility was a central issue, relying on the test in Lazar.

The court dismissed the motion, finding that the central issue was whether the insurance broker met the standard of care, not the plaintiffs' credibility.

Furthermore, the court held that the agreed-upon discovery plan contained an implied term that the plaintiffs could attend each other's discoveries.

The plaintiff obtained a net jury verdict of $5,760.00 following a four-week trial for a motor vehicle accident.

The defendants had made three offers to settle, the last being $250,000.00 plus costs, which was compliant with Rule 49.10.

The court considered the offers to settle and the factors under Rule 57.01.

The court ordered the plaintiff to pay the defendants $70,000.00 in partial indemnity costs, noting that the plaintiff would have been better off accepting any of the defendants' offers.

Following a jury verdict in a motor vehicle accident trial, the court determined the application of statutory deductibles and collateral benefits to the damages awarded.

The jury awarded $42,250 for general damages and $76,121 for past loss of income.

Applying binding appellate authority, the court applied the 2015 statutory deductible to the general damages, reducing the net award to $4,266.67, plus pre-judgment interest.

The court also deducted collateral benefits, including accident benefits and long-term disability settlements, from the past loss of income award, reducing it to zero.

The plaintiff was awarded a total judgment of $5,760.

The plaintiff in a wrongful dismissal action moved to strike references to a separation package offer from the defendant's statement of defence.

The defendant argued the offer was made with prejudice as it was the primary termination letter and not labelled 'without prejudice'.

The court found the offer was made without prejudice to 'buy peace', as it included an enhanced severance contingent on a release, contained a confidentiality clause, and was made to avoid litigation.

The court ordered the references struck from the statement of defence as irrelevant and potentially prejudicial.

The defendant brought a motion to set aside a default judgment obtained against him for damages related to a marijuana grow operation on the plaintiff's property.

The court applied the five-factor test for setting aside default judgments and found that the defendant failed to act promptly, provided no plausible excuse for his default, and failed to present an arguable defence on the merits.

The motion was dismissed with costs awarded to the plaintiff.

The plaintiffs were successful in a Rule 26 motion to amend their pleadings and sought costs.

The defendants argued the costs should be reduced due to efforts expended on an anticipated summary judgment motion based on the prior pleadings, which they claimed were costs thrown away.

The court declined to discount the costs on this basis, noting the summary judgment motion might not have succeeded and some preparation might still be useful.

The court fixed the plaintiffs' costs at $14,212.82 on a partial recovery basis.

The plaintiffs brought a motion under Rule 26 of the Rules of Civil Procedure for leave to deliver a fresh statement of claim in a negligence action against a fitness club and associated entities.

The proposed amendments sought to add a claim for negligent misrepresentation regarding insurance coverage and to pierce the corporate veil, based on information obtained during discoveries.

The defendants opposed the motion, arguing the amendments pleaded evidence, withdrew admissions, raised untenable claims, were statute-barred, and constituted an abuse of process.

The court rejected the defendants' arguments, finding the amendments pleaded material facts, did not cause irreparable disadvantage, and raised triable issues discovered within the limitation period.

The motion was granted.

Following the dismissal of the defendants' motion for leave to appeal, the parties made written submissions on costs.

The plaintiff sought partial indemnity costs of $11,853.89, while the defendants argued the amount should not exceed $5,000 based on average awards for similar written motions.

The court found the motion for leave involved complex constitutional issues, justifying a higher award than typical leave applications.

The court awarded the plaintiff costs fixed at $8,000 inclusive of HST and disbursements.

In a personal injury action arising from a motor vehicle accident, the defendants brought a motion seeking multiple discovery-related orders, including further production of documents, clarification of undertakings and refusals, and a second medical examination.

The court emphasized compliance with Rule 37.10(10) of the Rules of Civil Procedure requiring a refusals and undertakings chart and criticized the moving parties for failing to provide one.

Several document production requests were dismissed as irrelevant or disproportionate, while limited additional disclosure was ordered, including production of an unredacted medical file and updated affidavit of documents.

The plaintiff was also ordered to attend a neuropsychological independent medical examination.

The decision highlights proportionality and procedural compliance in discovery motions.

The plaintiff, a former Member of Parliament and cabinet minister, sued the prime minister, his senior advisors, and others for conspiracy, defamation, and other torts following her removal from cabinet and the Conservative Party caucus.

The defendants brought a motion to strike the statement of claim.

The court granted the motion, finding that the decisions to remove the plaintiff from cabinet and caucus were protected by Crown prerogative and parliamentary privilege, respectively, and were therefore not justiciable.

The court also held that communications between the prime minister and his advisors were protected by absolute privilege, and that the Conservative Party of Canada, as an unincorporated association, lacked the capacity to be sued.

The Estate Trustees brought an application to pass their accounts for the period from June 9, 2010, to June 30, 2011.

The objecting beneficiaries challenged the legal fees incurred in defending ongoing matrimonial litigation and the quantum of the Estate Trustees' compensation claimed at 2.5%.

The court found the legal fees were reasonably incurred given the high-conflict matrimonial litigation.

Applying the five factors from Re Toronto General Trusts, the court reduced the compensation slightly to 2.25% across all categories, fixing it at $228,261.41.

The court also found the Estate Trustees were justified in requiring releases and withholding bequests due to threatened litigation.