David J. Nadeau

Following a previous endorsement, the successful defendant sought costs on a partial indemnity scale.

The plaintiff opposed the costs award.

Applying the principles from Boucher and Rule 57, the court determined that the fixing of costs is not a mechanical exercise but must result in a fair and reasonable amount.

The court fixed the defendant's costs at $7,500 inclusive of fees, disbursements, and HST.

The defendant brought a motion for summary judgment to dismiss the plaintiff's negligence claim regarding a defective fireplace installation, arguing the claim was statute-barred.

The plaintiff argued the limitation period did not begin until the defendant refused to remediate the issue.

The court found that the plaintiff had actual knowledge of the material facts to base an allegation of negligence upon receiving an inspection report in December 2010.

As the action was not commenced until November 2014, well beyond the two-year limitation period, the court granted the defendant's motion and dismissed the action.

Following a proceeding, the successful defendant submitted a costs outline.

The court considered the factors under Rule 57 of the Rules of Civil Procedure, including proportionality, time spent, and complexity.

Applying the principles from Boucher and Davies, the court fixed costs at an amount fair and reasonable for the unsuccessful party to pay.

The plaintiffs were ordered to pay $3,500 all-inclusive to the successful defendant.

The Plaintiffs discontinued their action against the Defendant Computershare Trust Company of Canada c/o First National Financial LP ("First National").

First National then brought a motion for costs, seeking $11,094.45.

The remaining Defendants, Mark Hamelin and Tracy Hamelin, supported First National's request.

The Plaintiffs opposed the motion.

The court applied the "justified action test" under Rule 23.05 and Rule 57.01, finding that while the Plaintiffs were justified in initially investigating First National's mortgage, they were not justified in continuing their claim seeking priority over First National's Charge.

The court determined that First National was not a proper party to the action as it did not advance a construction mortgage.

Consequently, the Plaintiffs were ordered to pay First National $6,500.00 in costs on a partial indemnity basis.

The Hamelins' request for costs for responding to the motion was denied.

The applicant brought a motion seeking payment of a mortgage on the former matrimonial home, child support arrears for an adult child's post-secondary education, and a judicial sale or security.

The respondent paid the mortgage prior to the hearing.

The court dismissed the claims for child support arrears and security, finding that the adult child's tuition was being paid via student loans and that the parties' prior consent order explicitly stated no further child support would be paid.

The plaintiff sought leave to amend her statement of claim to add her husband as a plaintiff and the third parties as defendants, arguing discoverability of new information after the initial limitation period.

The court granted the motion, finding a credibility issue regarding the timing of discoverability that warranted resolution at trial, and that the plaintiff and her husband had provided a reasonable explanation for the delay in discovering the potential claims against the third parties and the need to add the husband as a plaintiff.

This addendum on costs addresses the quantum of costs following a trial judgment.

The Plaintiffs by counterclaim sought $59,582.17, while the Defendant by counterclaim proposed $20,630.00.

The court applied Rule 57 of the Rules of Civil Procedure and principles from appellate cases, emphasizing that costs awards must be fair and reasonable, reflecting what the unsuccessful party should pay rather than the successful litigant's actual costs.

Considering factors such as time spent, counsel experience, rates, result achieved, complexity, conduct, and proportionality, the court awarded the Plaintiffs by counterclaim $45,000.00, inclusive of fees, disbursements, and HST.

The plaintiff contractor was previously found liable by summary judgment for breach of contract and negligence regarding deficient basement waterproofing and property damage, including severing a main hydro line.

In this trial of an issue to assess damages on the defendants' counterclaim, the court rejected the plaintiff's argument for a diminution in value approach, applying the cost of repair.

The court assessed damages for the return of the initial payment, electrical repairs, living expenses, landscaping, and exterior cladding replacement, awarding the defendants $167,201.62.

The plaintiff commenced a civil action alleging lack of procedural fairness by a regulatory body and seeking compensatory damages.

The court reviewed the statement of claim and written submissions and found the action to be frivolous, vexatious, and an abuse of process.

The court held that the allegations against the regulatory body concerned matters of public law properly challenged through judicial review rather than civil damages proceedings.

Claims against the industry association were also found to be statute-barred and not actionable.

The action was dismissed under Rule 2.1.01 of the Rules of Civil Procedure.

The defendant in two separate actions arising from the same motor vehicle accident moved to have the actions tried together or sequentially, and to transfer the venue of one action from North Bay to Sudbury.

The court dismissed the motion to try the actions together as premature, noting that one action was at a much more advanced stage than the other.

The court also dismissed the motion to change venue, finding that the plaintiff's choice of North Bay was reasonable and the defendant failed to show that Sudbury was a significantly better venue.

The motions were dismissed without prejudice to being renewed closer to trial.

The plaintiff brought a motion for leave to appeal an interlocutory order to the Divisional Court under Rule 62.02(4)(a) of the Rules of Civil Procedure, arguing that another Superior Court decision created a conflicting authority warranting appellate review.

The court reviewed the alleged conflicting endorsement and the earlier motion decision and found no inconsistency in the legal principles applied.

The earlier endorsement addressed specific refusals on discovery and did not determine the threshold legal issue considered in the impugned decision.

The court held that the requirement of a “conflicting decision” was not met and therefore it was unnecessary to consider whether leave was desirable.

The motion for leave to appeal was dismissed, with commentary emphasizing counsel’s duty to disclose relevant authorities to the court.

The accused, charged with drug offences, brought a pre-trial Charter application seeking to exclude drugs seized from his person and residence, as well as his inculpatory statements.

He argued that the warrantless search of his home violated s. 8, his consent was coerced by the unlawful detention of his daughter (s. 9), and his statements were involuntary.

The court found the arrest and search incident to arrest were lawful.

The court also held the daughter's detention was based on reasonable grounds and the accused's consent to search his home was voluntary and informed.

The application was dismissed and the evidence admitted.

The defendant James Vezina sought costs of $4,171.65 from the co-defendant Economical Mutual Insurance Company after a motion for summary judgment was resolved by late consent.

Although the court noted that an award of $1,000 might have been fair and reasonable given the late consent, the court declined to award any costs.

The court based this decision on the moving party's choice to pursue costs from only one of the consenting parties and the improper disclosure of a prohibited statement made during a pre-trial conference.

On a production motion in a tort action, the moving defendants sought the plaintiff's complete long-term disability file from RBC, including particularized schedules of produced and withheld documents.

The responding plaintiffs argued that entitlement to deduct disability benefits was a trial issue and that settlement-related materials were protected by settlement privilege.

The court held that the deductibility issue need not be decided on the motion and that relevant underlying documents in the LTD file were producible notwithstanding the privilege claim.

Settlement negotiation communications and any documents subject to ongoing privilege remained protected.

In this estate costs decision, the successful applicant sought costs of an earlier application and argued they should be paid personally by the former estate trustee, or alternatively from the estate.

The respondent opposed any costs award and alternatively objected to payment from the estate.

The court held that the usual rule that costs follow the event does not always apply in estate matters, considered proportionality and the nature and evolution of the dispute, and awarded reasonable costs payable out of the estate assets.

The moving parties sought leave to appeal to the Divisional Court from an interlocutory order dismissing their Rule 21 motion challenging the court’s jurisdiction over a wrongful dismissal claim brought by a probationary police officer.

The court considered the test under Rule 62.02(4) of the Rules of Civil Procedure, which requires either a conflicting decision or a reason to doubt the correctness of the order combined with issues of sufficient importance.

The court found a conflicting decision concerning whether disputes involving probationary police officers fall within the exclusive jurisdiction of labour arbitrators or police disciplinary regimes.

Given the potential conflict and broader importance for labour law and police discipline frameworks, leave to appeal was granted.

Following a trial regarding a construction contract dispute, the parties made written submissions on costs.

The court found that the Ministry of Transportation of Ontario (MTO) engaged in reprehensible and unconscionable conduct by manipulating expert evidence and withholding information.

As a result, the court awarded full indemnity costs to Leveque.

Bruell was awarded mixed partial and substantial indemnity costs based on a Rule 49 offer to settle.

The court also granted a Sanderson Order, directing MTO to directly pay the partial indemnity costs of the successful defendant, AECOM, because MTO's defence strategy made it necessary for AECOM to remain in the litigation.

The Ministry of Transportation (MTO) awarded a contract to Leveque for highway surface treatment.

The initial treatment failed shortly after application.

MTO ordered Leveque to remove and replace it, arguing Leveque was responsible under the contract's warranty for selecting incompatible aggregate.

Leveque performed the work under protest and sued for breach of contract.

The court found the contract was a method specification, meaning MTO bore the risk of the design's performance.

The court held that the failure was primarily caused by MTO's excessive binder application rates, poor weather, and MTO's refusal to restrict heavy truck traffic or permit sanding.

MTO was found solely liable for breach of contract and ordered to pay damages for the extra work.

The defendants brought a motion for leave to amend their Statement of Defence to add a counterclaim alleging negligent misrepresentation, abuse of authority, and breach of procedural fairness against the Crown.

The plaintiff opposed the amendment on the basis that the proposed claims disclosed no reasonable cause of action, were statute‑barred under the Limitations Act, constituted a collateral attack on other proceedings, and were partly advanced on behalf of a deceased individual.

Applying Rule 26.01 of the Rules of Civil Procedure, the court held that amendments should be permitted unless non‑compensable prejudice would result and that the proposed claims arose from the same core factual nexus already pleaded.

The court found that the discoverability principle could apply and that any limitation defence should be determined at trial.

Leave was granted to amend the pleading to add the counterclaim, except for claims seeking aggravated, punitive, and exemplary damages.

The successful plaintiff sought costs of the appeal in the amount of $5,428.74.

The defendant acknowledged the plaintiff's entitlement to costs but argued they should be fixed at $3,500.

The Divisional Court found the plaintiff's claim substantially justified and awarded costs fixed at $5,400 all-inclusive.