David M. Golden

This is a costs judgment following a successful appeal by the respondent.

The respondent sought partial indemnity costs of $28,029.42, while the applicants argued for no costs or a limit of $12,000.

The court awarded the respondent the full amount requested, considering factors under Rule 57.01(1) of the Rules of Civil Procedure and section 131 of the Courts of Justice Act.

The decision emphasized the respondent's success, the significant importance and complexity of the legal issues, and the reasonableness of counsel's hourly rates and time expended.

Following a motion where the applicants achieved substantial success, the parties provided written submissions on costs.

The applicants sought costs on a substantial indemnity basis in the amount of $14,803.00 plus disbursements.

The respondents argued they should be compensated for costs thrown away due to allegedly wasteful steps.

The court awarded the applicants $5,000 inclusive of disbursements and taxes, leaving the respondents' arguments regarding wasted costs to be determined by the trial judge.

The plaintiff, Terrace Bay Pulp Inc., moved to set aside a registrar's order dismissing its action for delay, which was the second such dismissal.

The motion was brought under Rule 37.14.

The court applied the four Reid factors (explanation for delay, inadvertence, promptness, and prejudice to defendants) contextually.

It found the plaintiff adequately explained the delay, particularly given the complex multi-party litigation, the need to add parties, and difficulties obtaining documents due to CCAA proceedings and asset sale.

The court found no presumption of prejudice arose and no actual prejudice was demonstrated by the opposing fourth party, ABB Inc. The court also considered recent amendments to Rule 48.14 as a relevant factor favoring the plaintiff.

The motion was granted, setting aside the dismissal order and establishing a new timetable.

Following the dismissal of the plaintiff's motion for leave to issue a certificate of pending litigation, the court determined the costs of the motion.

The defendants sought substantial indemnity costs of $38,500 based on prior offers to settle, while the plaintiff argued for partial indemnity costs of $12,000.

The court found that the defendants' offers to settle contained conditions not reflected in the final order, and thus did not warrant elevated costs.

The court awarded the defendants their partial indemnity costs, fixed at $26,000 inclusive of HST and disbursements.

The plaintiff sought leave under section 103 of the Courts of Justice Act and Rule 42.01 of the Rules of Civil Procedure to issue a certificate of pending litigation over a Toronto property arising from a dispute in a real estate redevelopment venture.

The parties had entered several agreements to jointly purchase, redevelop, and sell residential properties with profits shared equally.

Although the court found there was a triable issue as to whether the plaintiff had an interest in land based on the joint venture arrangement, other equitable factors weighed against granting the CPL.

The property was not unique, the claim could be adequately compensated by damages, and substantial funds from a mortgage discharge were already held in trust to secure potential claims.

Balancing the equities and considering the availability of alternative remedies, the court declined to grant leave to issue the CPL.

Following a trial in which the defendants successfully defended multiple claims including breach of contract, spoliation, unjust enrichment, and property-related torts, the court determined costs.

The defendants sought substantial indemnity costs and recovery of professional fees for several witnesses characterized as participating experts.

The court confirmed that participating experts may justify reasonable compensation where their expertise arises from involvement in the underlying events.

Applying Rules 49 and 57.01 of the Rules of Civil Procedure and principles of proportionality, the court awarded partial indemnity costs to the date of the defendants’ offer to settle and substantial indemnity costs thereafter.

Following dismissal of an action seeking specific performance of an alleged agreement of purchase and sale for land, the court determined the appropriate costs award.

The successful defendant sought substantial indemnity costs throughout or alternatively after a formal offer to settle.

The court held that substantial indemnity costs require reprehensible conduct and were not justified, even where the defendant had made a Rule 49 offer and the action was later dismissed.

Applying Rule 57.01 factors and considering the litigation conduct and proportionality of the amounts claimed, the court awarded partial indemnity costs with reductions for excessive legal work while allowing expert report disbursements incurred in response to anticipated expert evidence.

At a status hearing under Rule 48.14(13) of the Rules of Civil Procedure, the defendants sought dismissal of the plaintiffs’ action for delay arising from a 2007 lawsuit relating to the purchase of a retirement home and alleged wrongdoing by vendors, real estate agents, and the plaintiffs’ former solicitor.

The court reviewed the procedural history, including delays in scheduling examinations for discovery and counsel availability, and applied the two‑part test requiring the plaintiffs to explain the delay and demonstrate an absence of prejudice to the defendants.

Although the litigation had progressed slowly and one plaintiff was medically incapable of discovery, the court found this was the first status hearing, the plaintiffs were not in breach of court orders, and a litigation timetable had been proposed.

The court concluded the plaintiffs should be given a “lifeline” to proceed.

A timetable was ordered requiring the trial record to be passed within twelve months.

The Service Employees International Union applied for judicial review of an interest arbitration award that imposed a zero salary increase for the first two years of a collective agreement with 98 nursing homes.

The union argued the arbitrator unreasonably ignored the employers' ability to pay, mischaracterized Ontario's economy, and relied on inappropriate comparable settlements.

The Divisional Court dismissed the application, finding the arbitrator's application of the statutory criteria under the Hospital Labour Disputes Arbitration Act and his ultimate award were reasonable and entitled to a high degree of deference.

The moving party bank sought summary judgment dismissing claims alleging that its registered mortgage formed part of a fraudulent land transaction scheme.

The plaintiffs alleged that a prior partial discharge of their charge and subsequent transfers were fraudulent and that the bank had knowledge of the fraud through its solicitors or should have conducted further inquiries.

Applying the summary judgment framework articulated in Combined Air Mechanical Services Inc. v. Flesch, the court found no genuine issue requiring a trial.

The record established that the bank had no actual, deemed, or constructive knowledge of fraud and was entitled to rely on the land titles register.

The plaintiffs’ failure to understand the acknowledgment authorizing the discharge and their failure to register notice of their interest for more than two years contributed to any alleged losses.

The applicant filed a human rights application alleging discrimination in accommodation on the basis of disability and receipt of public assistance after a failed attempt to purchase a co-ownership apartment unit.

The applicant sought an interim remedy granting her a right of first refusal to purchase any unit in the respondents' building, and requested that her name be anonymized.

The Tribunal granted the request to anonymize due to privacy and safety concerns related to stalking.

However, the Tribunal dismissed the request for an interim remedy, finding that while the application appeared to have merit, the balance of convenience did not favour the applicant, the requested order was overly broad, and the applicant had failed to take timely steps to mitigate her alleged harm.

The tenants appealed a decision of the Landlord and Tenant Board refusing to set aside an eviction order.

The appellants argued they did not receive a fair hearing due to mental illness and that the Tribunal failed to inquire whether the landlord accommodated the disability regarding late rent payments.

The Divisional Court dismissed the appeal, finding the Tribunal Member provided adequate guidance to the self-represented appellant and that there was no evidence the landlord was ever advised of the disability during the tenancy.

The appellant landlord appealed a decision finding that it did not have the right under a commercial lease to relocate the respondent tenant outside the existing shopping centre development.

The Court of Appeal dismissed the appeal, holding that the lease envisaged changes short of full demolition and creation of an entirely new development, and therefore the relocation right did not extend to compulsory relocation outside the existing complex.

The appellant's home was fraudulently transferred to an impostor who then mortgaged the property to the respondent.

The respondent registered the mortgage without knowledge of the fraud.

The appellant sought to set aside the mortgage.

The Court of Appeal held that the Land Titles Act operates on the theory of deferred indefeasibility.

Because the respondent acquired its interest directly from the fraudster, it was an intermediate owner and its charge was invalid against the true owner.

The appeal was allowed and the mortgage was set aside.

The applicant, which operates both a nursing home and a retirement home, sought judicial review of a Pay Equity Hearings Tribunal decision.

The Tribunal had ruled that because the applicant held a nursing home license, its entire operation, including the private retirement home, was a 'public sector employer' subject to the proxy method of comparison under the Pay Equity Act.

The Divisional Court quashed the Tribunal's decision, finding that a literal interpretation of the statute led to absurd and unfair results, such as forcing a private, unfunded retirement home to use a public sector pay equity method simply because of common ownership with a nursing home.

The Court held that the definition must be read to apply only to the extent of the nursing home operations.

The plaintiff was seriously injured when the car she was a passenger in swerved off the road and struck a Canada Post super mailbox, which fell onto the car.

The plaintiff sought to amend the statement of claim to add Canada Post as a defendant, alleging negligence in the placement and anchoring of the mailbox.

The Master dismissed the motion, finding no duty of care to users of the roadway.

On appeal, the Divisional Court allowed the appeal, holding that it was not plain and obvious that Canada Post owed no duty of care to users of the roadway who might veer off and strike an unsafely anchored structure.

Following an appeal where success was divided, the court issued an endorsement on costs.

The court ordered that no costs of the appeal be awarded to either party.

Furthermore, the court declined to clarify its reasons, directing the parties to settle the order in accordance with Rule 59.04 of the Rules of Civil Procedure.

Following a successful appeal setting aside a default judgment, the court determined the issue of costs.

The appellants sought substantial indemnity costs, arguing the respondent wrongly invoked the Registrar's jurisdiction.

The respondent sought costs thrown away due to the appellants' initial failure to defend.

The court declined to award costs of the motion or appeal to either party, noting the appellants' default caused the proceedings and they failed to raise the jurisdictional issue below.

The appellants were ordered to pay $290 in costs thrown away for the steps taken by the respondent in default.

The defendants appealed a Master's decision refusing to set aside a default judgment.

The Divisional Court found that the registrar lacked jurisdiction to sign the default judgment because the plaintiff's claims for rescission and damages were not for a 'debt or liquidated demand in money' under Rule 19.04(1).

The court set aside the default judgment as irregularly obtained.

The court also set aside the noting in default, holding that the defendants were not required to show a defence on the merits where the default was adequately explained and not deliberate.

The appellant, Meditrust Healthcare Inc., operated a national mail-order pharmacy business through subsidiaries to comply with provincial regulations.

Meditrust sued the respondents for various economic torts, alleging a conspiracy to destroy its business.

The motions judge granted partial summary judgment dismissing most claims, holding that under the rule in Foss v. Harbottle, Meditrust could not sue for damages that were derivative of those suffered by its subsidiaries.

On appeal, the Court of Appeal upheld the motions judge's decision on all grounds except for Meditrust's claim for loss of goodwill, finding that damage to reputation could constitute a direct, personal loss to the shareholder.