David G. Price

The applicant sought an extension of time to appeal an Ontario Court of Justice order that dismissed her motion to change a final custody order and imposed restrictions on future motions.

The respondent opposed and cross-moved for a vexatious litigant declaration.

The court denied the applicant's request for an extension of time to appeal, finding no intention to appeal within the prescribed period, no material change in circumstances, and a lack of forthrightness.

While declining to issue a vexatious litigant order under the Courts of Justice Act due to procedural requirements, the court imposed restrictions on the applicant's future motions under the Family Law Rules, requiring court permission for any further motions in the current proceeding or the original Ontario Court of Justice file, and ordered her to pay outstanding and current costs.

The defendant general contractor brought a motion for security for costs against the plaintiff subcontractor in a construction lien action.

The motion was brought after the action had been set down for trial.

The plaintiff opposed the motion, arguing that the defendant had unreasonably delayed and failed to seek leave under the Construction Lien Act and Rule 48.04.

The court found that the delay was primarily caused by the plaintiff's counsel's failure to cooperate in scheduling the motion.

The court granted leave to bring the motion and ordered the plaintiff to post $27,000 in security for costs, finding that the plaintiff had insufficient assets, failed to prove impecuniosity, and failed to show its claim had a good chance of success.

Following the dismissal of the applicant's application regarding a failed real estate transaction and the discharge of a Certificate of Pending Litigation, the parties could not agree on costs.

The respondents sought costs of $15,859.77, claiming partial indemnity costs up to the date of their offer to settle and substantial indemnity costs thereafter.

The court reviewed the principles of costs, including proportionality, hourly rates, and travel time.

The court reduced the hourly rate for travel time by 50% but ultimately found the total amount claimed by the respondents to be reasonable and proportional.

The applicant was ordered to pay the respondents' costs fixed at $15,859.77.

Following a finding of contempt against the respondent mother for unilaterally withholding access to the children, the parties could not agree on costs.

The applicant father sought costs on a full indemnity scale.

The court reviewed the principles of costs in family law, including the consequences of unreasonable conduct and bad faith.

Finding that the respondent's conduct was unreasonable but did not rise to the level of egregious bad faith required for full indemnity, the court applied the rebuttable presumption that substantial indemnity costs are appropriate for contempt.

The respondent was ordered to pay costs of $19,046.12.

The applicant sought costs of $20,000 on a full recovery basis following a successful motion for temporary spousal support, arguing the respondent acted in bad faith by failing to provide financial disclosure.

The respondent argued costs should be deferred to the trial judge or no costs awarded due to divided success and financial hardship.

The court found the applicant was substantially successful and the respondent's conduct was unreasonable but did not amount to bad faith.

Costs were awarded to the applicant on a partial indemnity scale in the amount of $14,924.77.

The applicant was substantially successful on a motion to vary a temporary access order.

The parties could not agree on costs.

The respondent argued that because the applicant's counsel was retained on a Legal Aid Certificate, costs should be limited to the Legal Aid rate.

The court rejected this argument, holding that Legal Aid status does not limit the costs recoverable to the Legal Aid rate.

The court awarded the applicant costs on a partial indemnity scale in the amount of $7,886.73.

Following a successful motion by the defendants to set aside a default judgment due to improper service, the court determined the issue of costs.

The plaintiffs argued the defendants unreasonably refused to instruct their counsel to accept service.

The court rejected this argument, noting the serious consequences and potential conflicts involved when a solicitor accepts service.

Given the defendants' success and their unaccepted offer to settle, the court awarded the defendants costs of $16,866.10, applying a substantial indemnity scale from the date of the offer.

Following a successful motion to change a temporary custody order, the applicant sought her costs on a full recovery basis, arguing the respondents acted in bad faith.

The court found the respondents' conduct was unreasonable but did not rise to the level of bad faith, awarding costs on a partial indemnity scale.

The court also held that the applicant's lawyer's hourly rate was not limited to the Legal Aid rate, and adjusted the maximum partial indemnity rate for inflation.

The respondents were ordered to pay costs of $23,196.58.

The defendant in two construction lien actions sought leave to move for summary judgment dismissing the actions.

The claims arose from the remediation of environmental contamination.

The court reviewed the principles of summary procedure under the Construction Lien Act and the expanded summary judgment rules following Hryniak.

Finding the record insufficient to determine whether a summary judgment motion or a trial of an issue would be most appropriate, the court ordered the parties to exchange draft issues of law and agreed statements of fact before resuming the conference.

The defendants brought a motion for leave to discontinue their counterclaim and a related fraud action, and to redeem a mortgage.

The plaintiff brought a cross-motion for leave to discontinue its claim for foreclosure.

The court granted the defendants leave to redeem the mortgage upon payment of the principal, interest, and costs totaling over $1.2 million, and granted leave to discontinue their actions upon payment of costs of $516,395.23.

The plaintiff's cross-motion to discontinue the foreclosure claim was dismissed.

The plaintiff purchased an industrial property that was later discovered to be contaminated with PCBs.

The plaintiff sued the vendor and related companies for fraud, alleging they concealed the contamination.

After several years of litigation, the plaintiff moved to discontinue its fraud action and counterclaim.

The defendants opposed, seeking dismissal and costs on a full indemnity scale.

The court granted the plaintiff leave to discontinue the action on terms that prevent future litigation on the same causes of action.

The court also ordered the plaintiff to pay the defendants' costs fixed at $516,395.23 on a substantial indemnity scale, finding that the fraud allegations were unsubstantiated but not intentionally misleading.

The Crown applied under s. 489 and s. 490(9.1) of the Criminal Code for the continued detention of items seized from the respondents during a complex murder investigation.

While proceedings against one respondent were previously discontinued, the police continued to investigate the other respondent for murder.

The court ordered the return of several items with no evidentiary value.

However, the court granted the continued detention of the remaining items, finding they might reasonably be required for the ongoing investigation and that their detention was in the interests of justice despite delays in forensic analysis.

The defendant retailer brought a motion under Rule 29.02 of the Rules of Civil Procedure seeking leave to issue a third party claim against a supplier approximately 15 months after delivering its defence and after the action had been set down for trial.

The court considered whether granting leave would prejudice the plaintiff, emphasizing that the rule requires leave to be granted unless the plaintiff would be prejudiced.

The court held that the relevant test is simple prejudice, not undue prejudice, and that delay may constitute prejudice, particularly where eyewitness testimony is involved and the trial is imminent.

Given the advanced stage of the proceeding, the absence of any explanation for the defendant’s delay, the weak merit of the proposed third party claim, and the likelihood that adding the third party would delay trial by at least eight months, the court found that the plaintiff would be prejudiced.

The motion was therefore dismissed.

The husband sought leave to appeal an interlocutory order that refused his motion to sever his claim for divorce from the wife's claims for corollary relief.

The motion judge had refused severance on the basis that the husband's failure to make financial disclosure prejudiced the wife, and severing the divorce could prejudice her potential claims against his estate in the event of intestacy.

The court found no conflicting decisions and no good reason to doubt the correctness of the motion judge's order, as the potential loss of intestacy rights and insurance coverage constituted legal disadvantage under Rule 12(6) of the Family Law Rules.

The motion for leave to appeal was dismissed.

The respondent husband sought leave to appeal an interlocutory order that dismissed his motion to sever his claim for divorce from the applicant wife's claims for corollary relief.

The motion judge had refused severance on the basis that the husband's failure to provide financial disclosure prejudiced the wife, and that severing the divorce could cause her legal disadvantage by terminating her rights under the Succession Law Reform Act in the event of his intestacy.

The court found no conflicting decisions and no good reason to doubt the correctness of the motion judge's order, as the potential loss of estate rights and insurance coverage constituted valid legal disadvantages under Rule 12(6) of the Family Law Rules.

The motion for leave to appeal was dismissed.

The applicant buyer sought a declaration that it had the exclusive right to terminate an Agreement of Purchase and Sale (APS) for a property requiring severance approval.

The respondent sellers had added a mutual termination clause during the sign-back process, which the buyer did not initial but included in subsequent offers.

The court found the APS was a binding contract and interpreted the mutual termination clause objectively, concluding that both parties had the right to terminate the agreement if severance approval was not obtained by the specified deadline.

The buyer's application was dismissed, and the Certificate of Pending Litigation was ordered discharged.

The defendant moved to set aside a default judgment arising from a personal injury action after a pedestrian tripped on an access ramp at a commercial plaza.

The court considered the established factors governing whether a default judgment should be set aside, including promptness of the motion, explanation for the default, existence of an arguable defence, prejudice to the parties, and the interests of justice.

The evidence showed the defendant had repeated notice of the claim, the motion for default judgment, and subsequent enforcement steps but failed to respond for several years.

The court found the delay unexplained, the asserted defence unsupported, and concluded the defendant had deliberately ignored the proceedings while taking a calculated risk.

In the interests of justice, the default judgment was allowed to stand.

A municipality brought a motion seeking payment of surplus funds from a tax sale that had been paid into court after the former property owners failed to apply for the funds within one year under s. 380 of the Municipal Act, 2001.

The court found insufficient evidence that the treasurer had properly notified the former owners that surplus proceeds had been paid into court and that they had a right to claim them.

The municipality relied on affidavit evidence from a law clerk and documentation relating to earlier tax arrears notices, but did not demonstrate compliance with statutory notice requirements regarding the surplus.

The court held that fairness requires reasonable efforts to notify former owners and provide clear instructions on how to claim surplus funds.

The court ordered that registered notice and a prescribed form be sent to the former owners and set a process allowing them to claim the funds before any forfeiture to the municipality.

The defendants moved to set aside a default judgment obtained in a franchise dispute concerning exclusive rights to market a restaurant concept in British Columbia.

They argued the statement of claim had not been properly served and that the affidavits of service from the process server were unreliable.

The court found the alleged service on both the corporate defendant and its director did not comply with the Rules of Civil Procedure and accepted evidence that the individuals said to have received the documents were not authorized agents or members of the household.

The court held that improper service rendered the judgment irregular and that the defendants also satisfied the discretionary factors for relief, including prompt action, a plausible explanation for default, and arguable defences on the merits.

The default judgment and noting in default were therefore set aside.

The plaintiffs brought motions to continue an action against the estate of a deceased defendant, to amend their statement of claim, and related procedural relief.

The court considered the interaction between Rules 10.02 and 11.02 of the Rules of Civil Procedure concerning continuation of proceedings where a party has died.

Finding that the deceased’s estate had an interest in the proceeding and that the named executor had not taken formal steps to administer the estate, the court exercised discretion to allow the action to continue against the estate without requiring probate or formal continuation procedures.

The court further addressed scheduling and priority issues between a Rule 21 motion to determine a question of law and a motion to amend pleadings.

The action was ordered to continue against the estate and related motions were adjourned to be heard together at a later date.