David Grant Boghosian

This costs endorsement followed a trial where claims of negligence against a regional municipality were dismissed, along with related Family Law Act claims and a cross-claim.

The successful municipality sought partial indemnity costs.

The court considered factors under Rule 57.01, including the complexity, importance, and length of the 23-day trial, as well as the conduct of counsel and the financial circumstances of the unsuccessful plaintiffs.

The court found the municipality's requested costs somewhat high and the opposing parties' proposals somewhat low.

A total partial indemnity costs award of $365,000.00 (inclusive of fees and disbursements) was made in favor of the municipality, apportioned 65% to the plaintiffs and 35% to the co-defendant, whose interests were largely aligned with the plaintiffs due to a Mary Carter agreement.

The plaintiffs moved for summary judgment seeking declarations of share ownership, directorship, invalidity of mortgages, and financial disclosure in a dispute over the sale of a hotel.

The defendants opposed, arguing a trial was necessary due to significant credibility issues and the inappropriateness of partial summary judgment, and also brought their own cross-motion for summary judgment.

The court dismissed both motions for summary judgment, finding genuine issues requiring a trial, particularly concerning witness credibility and the inability to readily bifurcate liability from remedy without risking inefficient duplication or inconsistent findings.

This decision addresses two evidentiary motions brought at the commencement of the third trial in a motor vehicle accident case.

The defendant municipalities sought leave to call an additional expert witness despite non-compliance with a court-ordered deadline and to admit an excerpt from "The Driver's Handbook" as filed evidence.

The court granted leave for the expert to testify, balancing the need for court orders to have "teeth" against the interests of justice and the opposing party's ability to respond without undue delay.

However, the court dismissed the motion to admit the handbook excerpt directly, suggesting it could be introduced through expert testimony instead.

This is a costs endorsement on appeal from a Superior Court decision.

The Court of Appeal awarded costs to the respondents on a partial indemnity basis in the amount of $10,000, inclusive of disbursements and relevant taxes.

The appellant appealed a summary judgment decision dismissing its claim against the City of Markham and Markham Public Library.

The trial judge found that the operative contract terms permitted the respondents to terminate the agreement without cause on 30 days' notice, and that the respondents exercised this right in good faith.

The Court of Appeal found no error in the trial judge's contractual interpretation or factual findings and dismissed the appeal.

The court also rejected allegations of procedural unfairness and declined to grant leave to appeal the costs order.

The appellant sought to set aside a Registrar's order dismissing its appeal for delay.

The respondent City consented to setting aside the dismissal but sought security for costs as a condition.

The appellant opposed the security for costs order, arguing it was impecunious and that the appeal had merit.

The court considered whether the appeal was frivolous and vexatious, whether the appellant was impecunious, and the merits of the appeal.

The court found the appeal was not frivolous and vexatious, the appellant was impecunious, and while the appeal had little chance of success, ordering security for costs would effectively prevent the appeal from proceeding.

The court dismissed the motion for security for costs and set aside the Registrar's dismissal.

The applicants, two municipalities, sought a declaration entitling them to appoint their own counsel and manage their defence in a main action at the expense of the respondent insurers.

The municipalities argued a clear conflict of interest existed because the insurers were also defending contractors (Miller and Langley) against whom the municipalities had alleged negligence and sought indemnification.

The court found an irremediable conflict of interest, as the insurers' pecuniary interests in limiting the contractors' liability directly conflicted with the municipalities' defence strategy.

The application was granted, allowing the municipalities to appoint independent counsel at the insurers' expense and be reimbursed for past defence costs, with reporting limited to settlement issues of covered claims.

On appeal from a trial judgment finding the municipal defendants liable for damages arising from a motor vehicle accident on a rural road during winter conditions.

The appellants challenged the trial judge's interpretation and application of the Municipal Act, 2001 duty to clear roads of snow and ice.

The trial judge found the road in a state of non-repair and held the municipality failed to take reasonable steps to prevent or correct the condition.

The appellants argued the trial judge applied an unreasonably high standard of maintenance for a Class 4 rural road, erred in requiring the application of straight salt rather than sand/salt mixture, and excluded relevant evidence regarding financial costs.

The Court of Appeal allowed the appeal in part, set aside the liability findings, and ordered a new trial on liability issues while upholding the damages assessment.

The appellants appealed an interlocutory order of Newbould J. that required them to produce Alexander Rovt for examination for discovery on behalf of Princess Gates Hotel Limited Partnership.

The appellants argued the order was final because it disposed of Mr. Rovt's right to refuse to attend as a non-party.

The Court of Appeal held that the order was interlocutory as it merely determined which individual would be examined for discovery on behalf of a party to the action, and that the order obligated the appellants as defendants to produce Mr. Rovt, not Mr. Rovt himself.

The motion to quash the appeal was granted.

The plaintiff's action for $25 million in damages was dismissed in full against all defendants.

This endorsement addresses the defendants' claims for costs.

The court found the plaintiff's principal, Mr. Lagani, engaged in blameworthy conduct, including misleading the court, intimidating witnesses, and making unsubstantiated allegations of fraud, warranting substantial indemnity costs.

The court declined to award costs against Mr. Lagani personally due to lack of jurisdiction and insufficient notice.

The court also rejected the Berczy Group's claim for equitable set-off against funds owed to the plaintiff, stating set-off cannot be used as a "sword" to proactively claim funds.

Substantial indemnity costs were awarded to all defendants.

The defendants, William and Mary Wade, sought an extension of time to bring a motion for summary judgment to dismiss the action against them, alleging that trees on their property obstructed visibility at an intersection where a serious motor vehicle collision occurred.

The plaintiffs, the Greens, opposed the extension.

The court dismissed the Wades' motion, finding substantial delay without satisfactory explanation, significant prejudice to the plaintiffs, and a risk of inconsistent factual findings if the summary judgment motion proceeded.

The court emphasized that the novel legal question of a private property owner's duty of care to motorists on adjacent roadways is best determined at a full trial, aligning with principles of proportionality, timeliness, and affordability.

During a civil jury trial, the court addressed a dispute between counsel regarding the form of jury questions on damages.

The plaintiff argued that the jury should only be asked about general, aggravated, and punitive damages, while the defendants submitted that the questions should reflect the damages discussed in the charge, including general, nominal, and contemptuous damages.

The court held that there was no prejudice to the plaintiff in directing the jury to consider the specific types of damages addressed in the charge.

The jury questions would therefore separately reference general, nominal, and contemptuous damages to align with the jury instructions.

During a jury trial in a defamation action arising from statements published by municipal officials, the plaintiff sought a jury instruction permitting an adverse inference from the defendants’ failure to call two municipal officials as witnesses.

The court reviewed the principles governing adverse inference where a party fails to call a witness, including the requirement that the witness be under the exclusive control of the party and that the evidence not be otherwise available.

The court found the witnesses were equally available to both parties and were not under the defendants’ exclusive control.

As a result, the circumstances did not justify the rare step of instructing the jury that an adverse inference could be drawn.

In a defamation action brought by a municipal councillor concerning a statement published by town council and later republished by a newspaper, the plaintiff sought to introduce similar fact evidence relating to a separate defamation action previously commenced and later discontinued by one of the defendants.

The plaintiff argued that the earlier litigation had been characterized as SLAPP litigation and was relevant to establish malice.

The court held that the prior action had minimal probative value in determining whether the impugned statement was defamatory or whether available defences applied.

The court further concluded that admitting the evidence risked sidetracking the jury trial into collateral issues unrelated to the pleadings.

The motion to admit the similar fact evidence was therefore dismissed.

A defendant electrical contractor brought a motion for summary judgment seeking dismissal of the action and a cross-claim arising from an accident allegedly caused by non-functioning streetlights on a boundary bridge between two municipalities.

The responding municipality argued the contractor should remain in the action pending trial because the municipalities’ respective jurisdiction over the streetlights might still be determined.

The court held that both the municipality and the contractor mutually understood under their Streetlighting Services Agreement that the bridge streetlights were outside the municipality’s jurisdiction.

Because the cross-claim was contractual and there was no possible breach under the agreement as interpreted by the parties’ mutual intention, there was no viable claim against the contractor.

Summary judgment dismissing the action and cross‑claim against the contractor was granted.

The plaintiffs moved to amend their statement of claim following a motor vehicle accident to add a municipality as a defendant and to properly name the existing defendant as a person under disability represented by a litigation guardian.

The municipality opposed the amendment on the basis that the limitation period under the Limitations Act, 2002 had expired.

The plaintiffs relied on the discoverability principle, arguing that they did not learn the material facts supporting a claim against the municipality until they obtained police officers’ notes describing hazardous icy road conditions.

The court held that the limitation period began when the plaintiffs ought to have obtained the notes through the exercise of reasonable diligence.

Because the plaintiffs failed to follow up on a request for the notes for several years, the discoverability principle did not extend the limitation period.