David Holton Cutler

The applicant sought to enforce a foreign Letter of Request for Judicial Assistance by requesting oral examination of a respondent's representative.

The request for oral examination was dismissed, though the respondent had previously agreed to produce documents.

The respondent sought full indemnity costs, arguing that as a stranger to the foreign litigation, it should not bear costs for successfully opposing the request.

The applicant argued for divided success and lower costs.

The court found the respondent wholly successful in opposing the oral examination and awarded full indemnity costs of $13,926.31.

This application concerned the enforcement of a Letter of Request for Judicial Assistance from a Florida court, seeking an oral examination of a representative from the National Gallery of Canada (NGC) regarding the ownership of Monet paintings by Frederic Bouin, who was involved in matrimonial litigation with the applicant.

The NGC had previously produced documents but opposed the oral examination.

The court applied a six-factor test for enforcing letters rogatory, finding that the applicant failed to demonstrate that the sought-after examination evidence was relevant, necessary, or not otherwise obtainable, as Mr. Bouin himself was available for examination in the US proceedings.

Consequently, the court declined to order the oral examination.

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.

The plaintiff brought an occupiers’ liability action after suffering a fractured navicular bone when she unknowingly stepped off a single step on a crowded outdoor patio at a pub.

The court found the step created a foreseeable hazard because the change in elevation was not visually discernible due to uniform decking colour, poor lighting, and lack of warning markings or visual cues.

The occupier breached its statutory duty under the Occupiers’ Liability Act by failing to take reasonable steps to make the premises reasonably safe.

The court rejected the defence of contributory negligence, finding the plaintiff had no reason to anticipate the step and a momentary glance at a friend did not constitute inattention.

Damages were awarded for pain and suffering, special damages, loss of earning capacity, and future care costs.

The appellant received long-term disability benefits from the respondent insurer.

Unaware that the appellant had retired and was receiving superannuation benefits, the respondent failed to deduct those benefits and overpaid the appellant by approximately $114,000 over five years.

To recoup the overpayment, the respondent reduced the appellant's monthly disability payments by 50 per cent.

The appellant sued, arguing the policy did not permit the reduction and that the insurer breached its fiduciary duty and duty of good faith.

The motion judge dismissed the action on summary judgment.

The Court of Appeal dismissed the appeal, finding that the policy permitted the insurer to reduce current benefits to recover past overpayments and that no ad hoc fiduciary duty existed.

The appellants, selling shareholders in a family business, appealed the dismissal of their action for breach of fiduciary duty and oppression against the non-selling shareholders and the corporation's professional advisors.

The trial judge had utilized a 'hybrid' trial model following a failed summary judgment motion.

The Court of Appeal dismissed the appeal, finding that the appellants were precluded from challenging the hybrid trial model as they had not appealed the initial trial management order.

Furthermore, the Court upheld the trial judge's finding that no fiduciary duty was owed during the share redemption negotiations, as the relationship between the parties was highly adversarial and marked by distrust.

The substantial indemnity costs award of nearly $2.5 million was also upheld.

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 appellant, a former federal cabinet minister, sued the prime minister, his staff, and other officials for defamation, conspiracy, and other torts after she was removed from Cabinet and the Conservative Party caucus amid allegations of misconduct.

The motion judge struck the statement of claim, finding the claims non-justiciable due to Crown prerogative and parliamentary privilege, and that the alleged defamatory statements were either not capable of being defamatory or were protected by absolute privilege.

The Court of Appeal upheld the striking of the claims against all defendants except one Member of Parliament, finding her public statements had a possible defamatory meaning that should be determined at trial.

Following the dismissal of the plaintiffs' action, the court assessed the costs payable to the successful defendants on a substantial indemnity basis.

The plaintiffs had settled costs with the Accountant Defendants for $550,000.

The court reviewed the bills of costs submitted by the Lawyer Defendants, the Katz Defendants, and the Leikin Group Inc. The court made several reductions to the amounts claimed, noting issues with top-heavy staffing, excessive time spent on documentary discovery, and duplication of effort.

The court ultimately awarded substantial indemnity costs totaling $2,340,485.75 across the three remaining sets of defendants.

The appellants appealed a judgment awarding compensation of $228,261.41 to the respondent Estate Trustees on a contested passing of accounts.

The appellants argued the application judge made palpable and overriding errors of fact and awarded a grossly excessive amount.

The Divisional Court found no palpable and overriding errors, noting the application judge correctly applied the five factors for determining compensation and reasonably concluded the Estate Trustees' demand for releases was justified given ongoing matrimonial litigation.

The respondents cross-appealed the costs award, arguing they were denied natural justice by not being allowed to make submissions on offers to settle.

The Court dismissed the cross-appeal, finding that while an opportunity should have been given, the offers would not have affected the substantial indemnity costs awarded out of the estate.

Both the appeal and cross-appeal were dismissed.

The plaintiffs, selling shareholders in a family-owned group of companies, brought an action against the non-selling shareholders, the companies' lawyers, and accountants.

They alleged breach of fiduciary duty, oppression, and knowing assistance arising from a share redemption transaction.

The plaintiffs claimed the defendants failed to disclose material information regarding the potential sale of a core asset to a third party at a higher value.

The court dismissed the action, finding that the share redemption was a product of self-interested negotiations where both sides had independent advice.

No ad hoc fiduciary duty was owed by the non-selling shareholders, lawyers, or accountants to the plaintiffs, and the plaintiffs' expectations were not reasonable under the oppression remedy.

The defendants brought a motion seeking an order compelling the plaintiff to produce unredacted clinical notes and records of the plaintiff’s treating psychologist.

The plaintiff had produced the records with redactions relating to discussions about the litigation, mediation, and communications with counsel.

The court reviewed the unredacted notes and considered the governing principles for redaction under the Rules of Civil Procedure, including the requirement that relevant documents be produced in full subject to limited exceptions.

The court held that the redacted portions were irrelevant to the issues in the action and that disclosure would only embarrass or prejudice the plaintiff without assisting in resolving the dispute.

The motion to compel production was dismissed and costs were awarded to the plaintiff.

Following the striking of a statement of claim alleging conspiracy, defamation, misfeasance in public office, and related torts against numerous defendants, the court determined the quantum of costs payable on the successful pleadings motion.

Multiple defendant groups sought more than $205,000 in partial indemnity fees and over $20,000 in disbursements.

Applying Rule 57.01 of the Rules of Civil Procedure and the fairness principles articulated in Boucher, the court considered duplication of effort among separately represented defendants with similar interests.

The court concluded that substantial overlap existed between certain defendants’ legal work and therefore limited recovery to a single set of costs for those parties.

Reduced costs totalling $108,000 in fees plus $10,560 in disbursements were awarded, subject to HST.

Following a successful appeal that ordered a new trial limited to damages, the appellant sought its costs of the trial.

The Court of Appeal declined to defer the costs assessment until damages were quantified, citing the respondent's reprehensible conduct in rigging bids prior to the litigation.

The court awarded the appellant its trial costs on a substantial indemnity scale, fixed at $370,000, after applying a 40% reduction to account for the appellant's lack of success on certain issues.

The court declined to make a distributive costs order in favour of the respondent.

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.

Following earlier reasons for judgment in an estate dispute, the applicants sought leave to make additional submissions on costs relating to offers to settle exchanged between the parties.

The respondents objected to the filing of further submissions.

The court held that counsel had already been invited to provide costs outlines at the end of the hearing and that no information regarding offers to settle had been raised at that time.

The court declined to receive any further submissions on costs and confirmed that the prior determination on costs would stand.

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.

The plaintiff brought a motion to compel the defendants to answer undertakings given during examinations for discovery in a home renovation dispute.

The defendants provided most answers shortly before the hearing but argued the motion was unnecessary, precipitous, and contrary to principles of civility, particularly given the absence of a formal discovery plan.

The Master reviewed the procedural history and correspondence between counsel, finding that the plaintiff had acted reasonably and provided ample notice.

The Master ordered the defendants to provide the remaining answers and better responses to certain undertakings, and awarded the plaintiff partial indemnity costs of the motion.

The appellant and respondent worked together to develop an automated attenuator for Lockheed Martin.

The respondent represented to the appellant that it would be the sole supplier.

However, the respondent secretly approached a competitor, rigged the bids to favour the competitor, and the competitor won the contract.

The trial judge dismissed the appellant's claims for negligent misrepresentation and breach of good faith.

On appeal, the Court of Appeal allowed the appeal in part, finding that the elements of negligent misrepresentation were met because the respondent negligently continued to represent the appellant as the sole supplier, causing the appellant to rely on this to its detriment.

A new trial was ordered to assess damages.

The appellant, CAA Insurance Company (Ontario), appealed an order of the Superior Court of Justice.

The Court of Appeal dismissed the appeal for the reasons given by the motion judge.

Costs were awarded to the respondent in the amount of $12,000.