David L. Edwards

Former tenants commenced a civil action against their landlord alleging that, following eviction and termination of a residential lease, the landlord trashed or retained personal property left at the premises and sought damages of $100,000 plus punitive damages.

Earlier proceedings before the Ontario Rental Housing Tribunal had found a breach of an agreement to allow additional time for removal of belongings, but the Divisional Court set aside the rent abatement and directed that damages be determined.

At trial, the court found that the plaintiffs failed to prove ownership of the alleged property, failed to establish that the landlord destroyed or retained any goods, and relied on a list of items the court found unreliable and misleading.

The court also found that certain items alleged to be present were not even available for purchase in Ontario at the relevant time.

The plaintiffs therefore failed to establish damages or liability on a balance of probabilities.

The applicant brought a motion to change prior custody and support orders seeking custody of two children, retroactive and prospective child support, and delivery of the children’s documentation.

The respondent opposed the motion and sought custody of the same children.

After reviewing extensive evidence, including credibility assessments, the court found the respondent to be a credible and responsible parent and expressed significant concerns about the applicant’s parenting abilities, mental health disclosure, and litigation conduct.

The court concluded that granting custody to the applicant would not be in the children’s best interests and awarded custody of the two children to the respondent.

The court also determined various historical child support obligations and section 7 expense allocations, resulting in a net payment owed by the respondent to the applicant.

Following the dismissal of a motion for leave to appeal, the successful defendant sought costs on a partial indemnity basis.

The responding party conceded entitlement to costs but argued the amount claimed was excessive, particularly with respect to legal research disbursements.

Applying the fairness and reasonableness principles under Rule 57.01 of the Rules of Civil Procedure, the court assessed the competing submissions and fixed costs at an amount lower than requested but higher than the amount proposed by the responding party.

Costs were awarded on a partial indemnity basis.

A family law trial concerning custody, access, child support, spousal support, and equalization of net family property following the breakdown of a marriage.

The court considered claims for spousal support, valuation of a closely held HVAC corporation, alleged debts incurred through promissory notes, and alleged concealed income.

Spousal support was denied as the claimant failed to establish economic disadvantage or need.

The court ordered joint custody with primary residence with the mother and a structured access schedule for the father.

Child support was recalculated based on imputed income including undeclared cash income, and an equalization payment was ordered.

The appellant was successful in appealing a Small Claims Court judgment and sought costs of $3,329.35.

The respondent, who was self-represented, submitted a brief email claiming $395.50 for limited legal advice.

The court found the appellant's claimed costs exceeded the principle of proportionality, as they represented over 30% of the $10,000 judgment in issue.

Costs were awarded to the appellant in the fixed amount of $2,000 inclusive of HST.

The defendants brought motions for summary judgment seeking dismissal of an investment loss claim on the basis that it was commenced outside the two‑year limitation period under the Limitations Act, 2002.

The remaining plaintiffs alleged losses arising from an offshore hedge fund investment and argued that the limitation period should begin only after they received legal advice.

The court held that the plaintiffs had actual knowledge of the material facts required under s. 5(1)(a) when they learned their investment was lost and expressed their intention to sue.

The court rejected the argument that a plaintiff’s lack of financial sophistication delays discoverability until legal advice is obtained.

The claim was discovered no later than July 31, 2007 and the September 2009 statement of claim was therefore statute‑barred.

The defendants sought costs following the abandonment of the plaintiffs’ motion for an interim interlocutory injunction.

The court found the motion had in fact been abandoned rather than merely adjourned and that the defendants were entitled to costs.

In assessing quantum, the court considered the factors under Rule 57.01 of the Rules of Civil Procedure and the plaintiffs’ undertaking in their Notice of Motion to indemnify the defendants for costs and damages.

Although the matter was complex and significant to the parties, the court found the hours claimed by defence counsel excessive and reduced the amount claimed.

Fixed costs of $40,000 were awarded to the defendants.

The appellant appealed a Small Claims Court judgment ordering him to pay $10,000 to the respondent.

The respondent claimed the money was a loan, while the appellant claimed it was an investment in a joint business venture.

The Divisional Court allowed the appeal and ordered a new trial, finding that the deputy justice had improperly reversed the burden of proof by requiring the appellant to prove the money was an investment rather than requiring the respondent to prove it was a loan.

Following a successful motion compelling production of bank statements relating to the receipt and disbursement of trust funds, the court determined the appropriate costs award.

The moving party sought partial indemnity costs representing 70% of its legal fees and full recovery of disbursements.

The responding parties argued the requested costs were disproportionate given the modest amount of the underlying claim and alleged scheduling issues.

The court found the respondents’ conduct unreasonable in withholding documents and forcing the motion.

Applying Rule 57.01 of the Rules of Civil Procedure and principles of proportionality and fairness, the court fixed costs in favour of the moving party.

In a family law proceeding, the parties were unable to agree on the appointment of a counsellor for their child.

The court reconsidered a prior endorsement after discovering that the respondent’s written submissions had not been included due to a clerical error.

Upon reviewing both parties’ submissions and the qualifications and availability of proposed counsellors, the court revoked the earlier endorsement and issued a new order appointing a counsellor for the child.

The court appointed the applicant’s proposed counsellor as the primary choice and designated an alternate if the first counsellor declined.

The order also addressed parental cooperation with counselling and allocated responsibility for payment of counselling costs, including coordination with the mother’s benefit plan.

Following judgment in a residential construction dispute, the successful homeowners sought a costs award of over $26,000 on a partial indemnity basis.

The builder argued it achieved greater success because most of the claims were dismissed and only a small portion of the damages sought was awarded.

The court noted the modest damages award fell well within the monetary jurisdiction of the Small Claims Court and that the matter could have proceeded under the Simplified Procedure rules after the lien action settled.

The court also found several claims advanced by the homeowners lacked merit and unnecessarily lengthened the trial.

Exercising its discretion under Rule 57.05 and Rule 76.13(3), the court ordered that each party bear its own costs.

Homeowners pursued a cross-claim against a modular home builder alleging numerous construction deficiencies following completion of a custom home under an Agreement of Purchase and Sale and subsequent amending agreements.

The court assessed allegations relating to stair staining, concrete drainage, HVAC zoning and dampers, hot water systems, UV water treatment units, flashing, roof workmanship, and contractual obligations under a Homeowner Ultimate Guarantee (HUG) certificate.

Most alleged deficiencies were dismissed due to lack of expert evidence or contractual support.

However, the court found a concrete slope deficiency and incomplete copper flashing and interpreted the HUG certificate as guaranteeing completion of listed items within a specified timeframe.

Damages were limited due to the homeowners’ duty to mitigate, resulting in reduced penalty compensation.

The parties settled a family law dispute at a pre‑trial, leaving only the issue of costs for determination.

The issues in the proceeding included custody, access, child support, section 7 expenses, health insurance coverage, and equalization of net family property.

The applicant had served an offer to settle that substantially formed the basis of the final settlement, while the respondent’s offer was served less than seven days before trial and was non‑severable except for equalization.

The court held that the applicant was the successful party and that the respondent’s late offer had limited significance.

Although the applicant sought full indemnity costs exceeding $15,000, the court fixed costs at $9,000 payable forthwith by the respondent.

Following a prior endorsement directing the parties to agree on a counsellor for their child, the parties failed to reach agreement and the applicant provided written submissions proposing several counsellors.

The respondent did not provide written submissions.

After reviewing the proposed counsellors’ qualifications and availability, the court determined that any of three identified professionals were suitable.

The court ordered a process requiring the respondent to select one counsellor within ten days, failing which the applicant could choose.

The court also made interim orders allocating responsibility for counselling costs depending on the availability of coverage under the applicant’s benefits plan.

The plaintiffs brought a medical malpractice action following the sudden death of Emilio Spirito at Trillium Health Centre.

The plaintiffs alleged that the defendants' negligence, specifically the failure to insert a nasogastric tube, caused the deceased to aspirate fluids and die.

The court found that the defendant doctors and nurses met the standard of care in their treatment and monitoring of the deceased.

Furthermore, the court accepted expert pathology evidence that the deceased died from bilateral lobar pneumonia acquired from air-borne bacteria, meaning there was no causal connection between the alleged negligence and the death.

The action was dismissed.

Following the dismissal of a family law appeal concerning a custody order granting the father sole custody and denying the mother access pending further order, the court addressed the issue of costs.

The successful party sought costs of the appeal pursuant to Rule 24(1) of the Family Law Rules.

The court confirmed the presumption that a successful litigant is entitled to costs and found that counsel’s hourly rate and time spent were reasonable given the volume of material.

Although the court accepted that the appellant’s financial circumstances were a relevant factor, it held that the respondent’s pro bono retainer with counsel did not mitigate entitlement to costs.

Fixed costs of $30,000 were awarded to the successful party.

Following a successful summary judgment motion dismissing the plaintiffs’ action and granting judgment on the defendant’s counterclaim in a residential boundary dispute, the court determined the appropriate costs award.

The defendant had previously served an offer to settle dismissing the action with partial indemnity costs, which remained open and unaccepted.

The plaintiffs argued for partial indemnity costs and challenged the defendant counsel’s hourly rate, while the defendant sought substantial indemnity costs.

The court found the defendant was virtually completely successful and that the time spent and hourly rate were reasonable.

Balancing the factors under the Rules of Civil Procedure, the court awarded costs at a level slightly above partial indemnity but below substantial indemnity.

In a wrongful dismissal action, the defendant employer brought a motion to amend its statement of defence to add a counterclaim alleging that the plaintiff employee had improperly claimed reimbursement for personal expenses and charged personal expenses to the employer’s credit card.

The plaintiff opposed the amendment, arguing the proposed counterclaim was statute-barred under the Limitations Act, 2002 because the underlying documents had been in the employer’s possession for many years.

The court held that the discoverability issue could not be conclusively determined on the limited evidentiary record before it and that it was not clear a reasonably prudent employer ought to have discovered the alleged misconduct earlier.

The court therefore granted leave to amend the pleading, leaving the limitation defence to be determined at trial.

The moving party sought an order under Rule 45.02 of the Rules of Civil Procedure requiring $1.1 million from the proceeds of the sale of a Hamilton property to be paid into court for interim preservation pending litigation.

The dispute arose from a property investment arrangement between long‑time associates, where the moving party alleged entitlement to a proportionate share of the profits based on funds invested.

The court held that the moving party did not establish a proprietary claim to a specific fund because he was merely an investor and had no proprietary interest in the sale proceeds held in an investment account.

Even if the first branches of the test were met, the balance of convenience did not favour the order as there was no evidence the responding parties intended to dissipate assets or frustrate enforcement of a potential judgment.

The motion was therefore dismissed with costs.

Following a consent order resolving a motion that sought to dismiss the respondent’s claim and strike his pleadings for failure to comply with a temporary order, the parties were unable to agree on costs.

The consent order provided that the respondent would pay the costs of the motion either as agreed or as ordered by the court.

The court considered the parties’ submissions, including allegations of non‑compliance with prior court orders, issues surrounding scheduling and counsel availability, and the existence of an offer to settle.

While satisfied that costs should be awarded to the applicant and that the claimed hourly rates and time spent were reasonable, the court declined to order full indemnity costs.

Costs were fixed at a lump sum of $4,500 inclusive.