David G. Stinson

This costs endorsement addressed whether successful moving parties could recover costs against a self-represented plaintiff who was a minor and therefore a party under disability when two motions were argued.

The court reviewed the historical practice under the Rules of Civil Procedure requiring minors to litigate through litigation guardians and noted that costs are generally borne by the litigation guardian or, in some cases, counsel, not by the minor personally.

The court held that a party who lacks legal capacity to commence or defend proceedings should not be held personally liable for costs arising from those proceedings.

No order for costs was made in favour of the defendants.

Following summary judgment dismissing a dental malpractice action on limitation grounds, the court determined the defendants' entitlement to costs.

Applying the Rule 57.01 factors and the overriding principle of reasonableness, the court held the unsuccessful plaintiff should pay costs on a partial indemnity basis.

Although the defendants sought $25,000 all inclusive, the court reduced the amount in light of access to justice concerns and the plaintiff's modest means.

Costs were fixed at $20,000 all inclusive.

Following a trial where both the plaintiff's claim and the defendant's counterclaim were dismissed, the court determined the issue of costs.

The court held that the defendant was entitled to costs because the plaintiff instigated the litigation.

The defendant sought over $16,000 on a partial indemnity scale.

Finding the amount somewhat disproportionate to the true amounts in issue and noting the unsuccessful counterclaim, the court fixed costs payable by the plaintiff to the defendant at $12,000 inclusive.

Following a divided outcome on an application regarding taxi licensing by-laws, the intervenor, Taxiworkers Association of Ontario, sought costs against the applicant.

The court denied costs for the intervention and injunction motions because the intervenor was not a necessary party and participated on its own initiative.

However, the court awarded the intervenor $2,500 in costs for the main application, recognizing that its evidence was critical to the court's determination of the notice issue.

The appellant appealed a decision of the Consent and Capacity Board confirming her attending physician's finding that she was incapable of consenting to treatment with antipsychotic medications.

The appellant argued the Board misapplied the statutory test for capacity, lacked evidentiary support, and relied on uncorroborated evidence.

The Superior Court of Justice dismissed the appeal, finding the Board correctly applied the test from Starson v. Swayze, and its conclusion that the appellant lacked insight into her condition and could not appreciate the consequences of treatment was reasonable and supported by the record.

The defendants moved for summary judgment dismissing a dental malpractice action on the basis that the claims were commenced outside the two-year limitation period under the Limitations Act, 2002.

The court held that discoverability turned on when a reasonable person in the plaintiff's position knew or ought to have known the material facts necessary to allege negligence, not when formal expert reports were later obtained.

On the evidence, including the plaintiff's ongoing objectively unsatisfactory outcome and a December 13, 2011 discussion with a subsequent treating dentist explaining that the procedure should have been done differently, the court found the claims were discoverable no later than that date.

Because the actions were not commenced until January 2014, they were statute-barred and summary judgment was granted dismissing the action.

In a motor vehicle chain-reaction collision case, the moving defendants in the lead vehicle sought summary judgment dismissing the action and a co-defendants' cross-claim against them.

The responding defendants argued the motion was premature because the police file had not yet been produced and further discovery remained outstanding.

Applying the summary judgment approach in Hryniak, the court held the record was sufficiently developed, the responding defendants had ample time to investigate, and there was no air of reality to the suggestion that further evidence would establish negligence by the lead vehicle.

The court further relied on the settled presumption that the striking rear vehicle is generally at fault in a rear-end collision and dismissed the action and cross-claim against the moving defendants.

Following a jury verdict awarding general damages and past income loss arising from a pedestrian-motor vehicle accident, the defendant brought a threshold motion contending that the claim for non-pecuniary loss was barred by s. 267.5(5)(b) of the Insurance Act.

The court accepted that the accident caused the plaintiff's post-accident left shoulder pain, but held the plaintiff failed to prove that the impairment substantially interfered with his regular employment or with most usual activities of daily living within the meaning of O. Reg. 461/96, s. 4.2.

The plaintiff had continued working full-time for more than four years, the evidence about retirement and re-employment intentions undermined his reliability, and the daily-living evidence was insufficient.

The threshold motion was granted.

The applicant challenged municipal resolutions and by-law amendments implementing a new one-tier taxi licensing regime, alleging lack of notice, breach of the City's procedural by-law, and bad faith.

The court held that City Council was acting legislatively, not administratively, so no common law duty of procedural fairness applied.

The court further held that Council could consider the referred recommendations and that adequate notice had been given for the general TTL reforms, but not for the newly introduced mandatory 2024 deadline requiring all licences to convert.

That notice failure was a substantive breach going to the root of validity, so only the mandatory conversion deadline was quashed; the remainder of the regime was upheld and the bad faith claim failed.

Following a trial arising from the sale of a restaurant business, the court dismissed both the seller's claim on promissory notes and the buyer's counterclaim for misrepresentation.

The court held the written agreement identified a corporate purchaser and, applying the parol evidence rule, rejected the assertion of a parallel oral agreement imposing personal liability on the individual defendant.

The court further found no basis to pierce the corporate veil because there was no fraudulent intent, diversion of corporate assets, or improper conduct.

The counterclaim also failed because the evidence established a misunderstanding about monthly revenues rather than fraudulent inducement.

On a summary judgment motion in an employment compensation dispute, the court interpreted an unsigned compensation amendment governing commissions and bonuses for an executive recruiter.

Applying commercial contract interpretation principles and, alternatively, contra proferentem, the court held that a 5% admin fee requirement was not a precondition to bonus eligibility.

After crediting a further payment received on an outstanding client receivable, the court found the moving party’s 2013 net billings exceeded the $1 million threshold, triggering a 3% bonus.

The court also held that equitable set-off was unavailable to justify withholding commissions based on a counterclaim for damages arising from the moving party’s resignation and alleged solicitation of a client.

Summary judgment was granted on the compensation claim, subject to recalculation.

Following a prior declaration that the insurer had a duty to defend and indemnify under a comprehensive homeowners policy, the court determined the quantum of costs and reimbursement payable.

The applicants were entitled to full reimbursement of solicitor's accounts for defending the underlying action, subject to deductions for work performed before they became potential personal defendants and for apportionment issues involving another family member.

The court also fixed partial indemnity costs of the insurance application after reducing the hours claimed.

A total award of $20,138.94 was ordered payable within 10 days.

A third party brought a motion for summary judgment seeking dismissal of a third party claim arising from a multi-vehicle collision on the Gardiner Expressway.

The moving party relied primarily on an affidavit sworn by counsel that included excerpts from police reports and discovery transcripts, including the moving party’s own discovery evidence.

The court held that such evidence was largely inadmissible under the Rules of Civil Procedure and noted the absence of direct affidavit evidence from the moving party with personal knowledge of the events.

Given conflicting evidence about whether the third party caused the defendant to swerve and lose control, the court concluded that there was a genuine issue requiring a trial.

The motion for summary judgment was therefore dismissed and costs were awarded against the moving party.

Following a successful appeal from a Master's order dismissing a motion to remove opposing counsel for conflict of interest, the court determined the appropriate costs disposition.

The defendant/appellant sought costs for both the motion before the Master and the appeal.

The court held it had authority to address costs at both stages.

While the quantum of the Master’s $3,000 costs award was maintained, the court ordered those costs payable forthwith rather than in the cause.

Additional partial indemnity costs of $4,250 were awarded for the appeal.

Parents sought a declaration that their homeowner’s insurer had a duty to defend and indemnify them in an action alleging they negligently failed to prevent or address bullying committed by their minor child.

The insurer denied coverage relying on policy exclusions for intentional acts and for failure to prevent abuse or harassment.

The court held that the negligence claims against the parents were distinct from the intentional tort allegations against the child and were not merely derivative.

Applying principles governing duty to defend and interpreting exclusion clauses narrowly, the court found the policy language did not clearly exclude negligent failure to prevent harassment.

The insurer was therefore obligated to defend and indemnify the parents.

The applicant, who was previously declared a vexatious litigant, sought leave under s. 140(3) of the Courts of Justice Act to commence a civil proceeding against the Ontario College of Pharmacists and its employees.

The court dismissed the application, finding that the proposed proceeding was an abuse of process as it constituted an impermissible collateral attack on final disciplinary decisions.

Furthermore, the applicant failed to establish reasonable grounds for the proceeding, and the claims were statute-barred under the Limitations Act, 2002.

A self‑represented party brought a motion opposing confirmation of interim and final reports prepared by a court‑appointed receiver in a partnership dissolution proceeding and sought leave to commence legal proceedings against the receiver and its president.

The court found the moving party had possessed copies of the receiver’s reports for at least five years before bringing the motion.

Any potential claim against the receiver was therefore barred by the two‑year limitation period under the Limitations Act, 2002.

The court also held that the equitable doctrine of laches applied given the extensive delay and prejudice to the respondents.

The motion was dismissed and costs were awarded to the respondents.

The defendants brought a motion seeking to disqualify the plaintiff’s counsel on the basis that counsel had allegedly created a lawyer‑client relationship with a self‑represented defendant during settlement communications and obtained confidential information.

The court reviewed a series of emails and a telephone discussion initiated by the defendant proposing settlement and requesting assurances that the discussion would be “without prejudice” and off the record.

The court held that no solicitor‑client relationship or analogous relationship arose because the defendant knew counsel represented the opposing party and voluntarily initiated the communications.

The court further found that no confidential information was imparted and rejected allegations that counsel attempted to coach or solicit false evidence.

The motion was dismissed and the defendants were ordered to pay substantial indemnity costs.

A franchisee brought a motion for partial summary judgment seeking a declaration that it validly rescinded a franchise agreement under s. 6(2) of the Arthur Wishart Act (Franchise Disclosure), 2000.

The franchisee argued that the franchisor failed to provide proper statutory disclosure, including financial statements of the actual franchisor, lease documentation, and directors’ certificates, and failed to disclose several agreements relating to the franchise.

The court held that the deficiencies were substantial and material, rendering the disclosure so deficient that it amounted to no disclosure at all.

As a result, the franchisee retained a two‑year rescission right under the statute and had validly exercised that right.

The court granted declaratory relief and held the franchisee entitled to statutory recovery under s. 6(6).

An organization operating treatment and support centres for children sought a declaration that two properties were exempt from municipal property taxation under s. 3(1)6.1 of the Assessment Act.

The respondents argued that the exemption applied only to facilities formally designated by the Ministry of Community and Social Services as “Children’s Treatment Centers.” The court held that the legislation contained no definition requiring such designation and that the ordinary meaning of a children’s treatment centre governed.

Based on the evidence that the facilities primarily provided treatment to children and received provincial funding, the properties qualified for the exemption.

A declaration of tax exemption was granted.