David Elliott

The court determined the scale and quantum of costs following the dismissal of the plaintiff's claims in two consolidated actions.

The defendants sought substantial indemnity costs, alleging abuse of process, unsubstantiated allegations, and undue complication of litigation.

The court declined to award substantial indemnity costs, finding the plaintiff's conduct, while meritless and complicating, did not rise to the level of maliciousness or sanctionable abuse of process.

Partial indemnity costs were awarded to the Grohotolski Defendants ($136,677.24), Ms. Steele and Ms. Wolfe ($78,316.92), and Motion Endeavours, Tim Quocksister, and Silver Arrow ($16,000.00).

The court also set out a process for the remaining counterclaims by Mr. Quocksister and Silver Arrow, requiring personal service of summary judgment motion materials on the plaintiff.

The appellant mother, S. (D.), sought an order to extend the time to file a notice of appeal against a Crown wardship order for her three children.

The original order, making the children Crown wards with limited supervised access, was issued on April 24, 2017, and the appeal limitation period expired on May 24, 2017.

The motion for extension was filed nearly a year later.

The court applied the five-factor test from Issasi v. Rosenzweig, considering the appellant's intention to appeal, the length and explanation for delay, prejudice to the children, merits of the appeal, and the justice of the case.

The court found insufficient evidence of timely intention to appeal, an unreasonable delay, significant prejudice to the children's permanency planning, and a lack of merit in the proposed appeal.

Consequently, the motion to extend time was dismissed, emphasizing the imperative for expeditious resolution in child welfare matters and the best interests of the children.

The defendants brought a motion by way of a special case to determine whether their corporate representative was required to answer questions on discovery based on personal knowledge acquired outside his capacity as an officer or employee of the defendants.

The representative had previously worked for a related non-party corporation.

The court held that the representative is not required to answer questions based on personal knowledge acquired in another capacity, as doing so would effectively allow discovery of a non-party without leave.

However, if the representative possesses personal knowledge that the corporate defendant would be required to disclose anyway, he should provide it for efficiency.

The defendants, TSV Holdings Ltd. and Azure Health Care Ltd., brought a motion to prevent the plaintiffs, Cimtel Inc. and Wireless Resident Nurse Alert Technology Inc., from examining Clayton Astles, CEO of Azure, for discovery.

Astles was previously president of Austco Canada, a subsidiary, and was involved in the events leading to the litigation.

The court applied the factors from Farris v. Staubach to determine if the plaintiff's choice of examiner should be interfered with.

The court found Astles had sufficient knowledge and direct involvement, and that substituting another representative would prejudice the plaintiffs.

The motion was dismissed, upholding the plaintiffs' right to examine Astles.

A child protection application under Part III of the Child and Family Services Act concerning a child apprehended on June 5, 2015 from the mother on grounds of risk of physical and emotional harm.

The Society sought a three-month wardship order.

The trial addressed whether the child was in need of protection at the time of apprehension, with the disposition already agreed upon.

The court found the child was in need of protection based on the mother's untreated mental health concerns, paranoid ideation, lack of adequate supervision, and emotional instability.

The child has since been returned to the mother's care under a voluntary services agreement with conditions, and no further court order was required.

The Kenora Rainy River District Child and Family Services brought a motion for summary judgment seeking a further six-month Society Wardship Order for two children found to be in need of protection due to emotional harm.

The children had been apprehended in October 2014 due to mental health concerns including self-mutilation and suicide ideation.

They were placed in a specialized treatment foster home in Southern Ontario where they demonstrated significant improvement.

The mother opposed the motion, seeking return of the children to her care, but provided no clinical evidence or cooperation with the Agency.

The father agreed with the Agency's position and was noted in default.

The court found no genuine issue requiring trial and granted the Society Wardship Order for six months, finding that the children's best interests required continuation of their specialized placement.

The child protection agency sought leave to withdraw its protection application for two children in a high-conflict custody and access dispute between separated parents.

The agency argued that its involvement was exacerbating the situation and was not in the children's best interests.

The father and children's counsel supported the withdrawal, while the mother opposed it, seeking continued agency involvement to establish parental alienation.

The court granted the agency's motion to withdraw, finding that the matter was fundamentally a custody and access dispute better suited to Superior Court, that the children were uncooperative with services, and that continued child protection involvement would be detrimental to their interests.

A status review hearing concerning two children in the care of a child and family services society.

The father consented to Crown Wardship with access rights.

The mother passed away during the proceedings.

The sole remaining issue was whether the children could be placed with maternal grandparents as required by statute.

The court found that while the grandparents had genuine love for the children, they lacked the necessary skills and training to meet the children's high needs resulting from severe developmental trauma.

The grandparents had also demonstrated concerning behaviors including coaching children on litigation matters, expressing negative views of the father to the children, and failing to cooperate with the society.

The court ordered Crown Wardship with access rights to the father, grandparents, and sibling contact arranged at the society's discretion.

The applicant sought declarations regarding the interpretation of a limited partnership agreement governing a large residential land development project.

The dispute concerned whether partnership decisions required consensus between the two limited partners or could be determined by weighted voting based on ownership interests, and whether a subsequent agreement requiring equal allocation of residential building lots was enforceable.

The court held that the partnership agreement clearly permitted ordinary resolutions to be decided by a majority of votes weighted by ownership shares, giving the majority partner decision‑making authority.

However, the court also found that the later agreement requiring a 50‑50 division of residential building lots between the partners was valid and binding.

The court concluded that both agreements could operate together: decision‑making authority followed the ownership weighting while lot allocation remained equal under the later agreement.

Following dismissal of a $15 million civil claim, the court determined the appropriate costs payable to the successful defendant.

The defendant sought substantial indemnity costs based on allegations of bad faith litigation conduct and a rejected Rule 49 settlement offer of $250,000.

The court declined to award substantial indemnity for the entire proceeding but applied Rule 49 principles, awarding partial indemnity costs up to the date of the offer and substantial indemnity thereafter.

The court also addressed the effect of a special fee arrangement between the defendant and its counsel, holding that costs cannot exceed the client’s actual obligation under s. 20(2) of the Solicitors Act.

Costs were fixed in accordance with the reasonable expectations of the parties and the scale of the litigation.

At a status hearing pursuant to Rule 48, the plaintiff sought to explain a delay in prosecuting an action for out-of-country medical coverage by arguing he had not yet been pursued for the medical bill.

The court found this explanation insufficient, distinguishing the case from situations where liability depends on an underlying action.

Applying the test from Khan v. Sun Life, the court concluded the plaintiff failed to meet the onus of explaining the delay and addressing prejudice to the defendants.

The action was dismissed for delay.

A status review application concerning two children who were made Crown Wards without access in March 2010 due to parental substance abuse and domestic violence.

The birth mother sought supervised access and gradual return of the children to her care, demonstrating significant rehabilitation through methadone treatment, counselling, and stable housing.

The court found that material changes in circumstances warranted granting supervised access for six months with specific conditions, rejecting the child protection agency's position that insufficient progress had been made.