David S. Thompson

The applicant estate trustees applied for directions regarding an anomaly in the deceased's 2016 will, which used the term 'division date' without defining it.

The previous 2013 will had defined the term in relation to a 30-day survivorship clause for the deceased's spouse.

The court applied the armchair rule and found that the drafting solicitor for the 2016 will had erroneously retained vestiges of the survivorship provisions after the spouse's death.

The court concluded that the deceased intended for his sons to inherit upon his death without a 30-day survivorship requirement, and ordered the will rectified to correct the drafting error.

This costs endorsement addresses the allocation and quantum of costs following the dismissal of a motion for intervention by Gregory John Monforton, the former lawyer for the plaintiffs, in a complex civil action.

The court reviews the governing legal principles for costs in Ontario, including the discretion under the Courts of Justice Act and the Rules of Civil Procedure, and applies them to the facts.

The court finds that the three sets of responding parties—CP Rail, Andrew Williams, and the Corporation of the Town of Lakeshore—are each entitled to their own costs, rejects the argument that only one set of costs should be awarded, and reduces the amount claimed by CP Rail for preparation of its factum as excessive.

The court fixes costs in the amounts of $40,553.48 to CP Rail, $16,276.61 to Andrew Williams, and $20,110.95 to Lakeshore, all payable by the proposed intervenor.

The moving parties sought leave to appeal a lower court decision dated October 21, 2024.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to the responding parties in the total amount of $10,000.

This costs endorsement followed two applications concerning the interpretation and rectification of a will.

The court had previously dismissed the interpretation application brought by Bishop Moussa and granted the rectification application brought by Sarwat Mansour, supported by Samia Messieh.

The court applied the modern approach to costs in estate litigation, scrutinizing the conduct of the parties.

While acknowledging the initial drafting error in the will necessitated legal advice, the court found Bishop Moussa's continued pursuit of an "absurd" interpretation led to unnecessary litigation.

Consequently, Bishop Moussa was ordered to pay a significant portion of the costs incurred by Ms. Messieh and Mr. Mansour, with some allowances from the estate for initial advice related to the drafting error.

A proposed intervenor, a former lawyer for the plaintiffs, sought leave to intervene in a motion concerning the interpretation of a settlement agreement.

The intervenor argued he might be adversely affected by the outcome due to a potential professional negligence claim.

The court found that while the intervenor met the "adversely affected" criterion under Rule 13.01(1)(b), his intervention was not warranted.

The court determined that the proposed evidence was subject to solicitor-client and settlement privilege, which had not been waived, thus preventing a useful contribution.

Furthermore, the intervention would cause undue delay and prejudice to the existing parties, particularly the minor plaintiffs, in a private dispute.

The motion for intervention was dismissed.

The appellant purchased a recreational trailer and left it for free storage with the respondents.

The trailer was stolen from the dealership.

The appellant sued for negligence, but the trial judge found the respondents were gratuitous bailees and met the standard of care, finding no negligence.

On appeal, the appellant argued the trial judge erred in determining the standard of care, failing to consider foreseeability of theft, and misapprehending expert evidence.

The Court of Appeal dismissed the appeal, affirming the trial judge's finding that the respondents were not negligent under any standard of care, had addressed foreseeability of theft with security measures, and did not misapprehend expert evidence regarding security improvements.

The appellants (homeowners) appealed a trial decision that found them liable for breach of an oral renovation contract and dismissed their claims against the builder and the City of Hamilton.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings regarding the oral contract, the standard of construction, the interpretation of allowances, the homeowners' breach of contract, and the builder's compliance.

The appellate court deferred to the trial judge's credibility findings, particularly concerning expert evidence, and his assessment of damages, finding no palpable and overriding error.

The defendant brought a motion for summary judgment to dismiss the plaintiff's action for damages arising from an alleged campaign of harassment following the end of their romantic relationship.

The plaintiff argued her claim was saved from the basic two-year limitation period by section 16(1)(h.2)(i) of the Limitations Act, which removes the limitation period for assault if the parties had an intimate relationship.

The court found the plaintiff failed to prove on a balance of probabilities that she had reasonable grounds to fear imminent harmful or offensive contact.

As the plaintiff's claim was statute-barred, the court granted summary judgment and dismissed the action.

The applicant, 384130 Ontario Limited, sought declarations that an 18-year-old agreement for the purchase of a property, which included an environmental remediation clause, was valid and enforceable, and an order for specific performance.

The respondent, 520611 Ontario Limited, argued the agreement was unenforceable due to a true condition precedent not being met, frustration of contract due to escalating remediation costs, and that the applicant's claim was time-barred by the Limitations Act or barred by laches.

The court found that Ministry approval for remediation was not a true condition precedent, as it depended on the respondent's actions.

It also held that increased remediation costs did not frustrate the contract, as the obligation was not radically different.

The court further determined the claim was not time-barred, as the applicant's email was a complaint about delay, not an acknowledgment of repudiation, and the doctrine of laches did not apply due to the respondent's failure to unequivocally repudiate.

The court granted specific performance, finding the property unique due to its suitability for the applicant's auto repair business and the goodwill established over 18 years.

Following the dismissal of the plaintiff's action regarding a stolen RV, the successful defendants sought costs on a substantial indemnity basis, relying on a Rule 49.10 offer of $15,000.

The court found the offer was a token amount and not meaningful, awarding costs on a partial indemnity basis instead.

The court also reduced the claimed costs due to excessive preparation time billed by junior counsel, fixing the final costs award at $60,000 inclusive of HST and disbursements.

The plaintiff purchased an RV from the defendants and left it at their dealership for storage until his campsite was ready.

The RV was stolen from the dealership's lot.

The plaintiff sued the defendants for negligence as a bailee.

The court found that the defendants were a gratuitous bailee and therefore only liable for gross negligence.

After reviewing expert evidence on the dealership's security system, the court concluded the defendants met the requisite standard of care and dismissed the action.

Following a nine-week trial of a residential construction dispute, the successful builder and municipality sought costs against the unsuccessful property owners.

The builder sought elevated costs based on a Rule 49.10 offer to settle and the owners' alleged bad faith conduct.

The municipality sought elevated costs based on non-compliant offers to settle.

The court awarded the builder partial indemnity costs to the offer date and substantial indemnity costs thereafter, finding the owners' conduct did not warrant further elevation.

The municipality was awarded partial indemnity costs throughout.

Costs were fixed at $850,000 for the builder and $100,000 for the municipality.

The builder sued the homeowners for unpaid amounts on a residential construction project.

The homeowners counterclaimed for construction deficiencies and incomplete work, and also sued the municipality for negligent building inspection.

The court found that the parties had an oral contract and that the builder did not breach it by leaving the project when the homeowners stopped paying.

The court dismissed the homeowners' claims for major structural deficiencies, finding the expert evidence of the builder more reliable.

The court also dismissed the negligence claim against the municipality, finding it met the standard of reasonable care.

The homeowners were ordered to pay the builder $558,095.52 for the unpaid balance of the contract and extras, less credits for incomplete work.

The applicant, Richard Sherk, brought a motion for an interim payment out of court of funds held to the credit of the action.

The respondent, Mark Sherk, opposed the motion, arguing that the funds served as a 'cushion' for potential damages he might be awarded and that further reduction would be prejudicial.

The court granted the applicant's motion, finding the respondent's arguments without merit, consistent with prior decisions and the Divisional Court's ruling that the respondent had no right to the funds as security ahead of judgment.

The defendant, Corporation of the Town of LaSalle, brought a motion to dismiss the action or, alternatively, to strike the matter from the trial list or adjourn the trial, supported by the Tedesco defendants.

The motion was based on the plaintiffs' non-compliance with pre-trial orders regarding expert reports, cost estimates, and financial disclosure, as well as unanswered undertakings from discovery.

The court found that the plaintiffs had not fully complied with disclosure requirements, particularly concerning repair cost estimates and corporate income loss documentation.

Consequently, the court struck the action from the March 30, 2020 trial list, ordering that it not be restored until a court-approved schedule for remaining steps is established, to allow defendants to react to newly provided information and conduct further examinations.

In an ongoing estate litigation matter, the court determined costs for several preliminary steps, including the determination of an estate asset, production of solicitor files, an abandoned consolidation motion, and case management conferences.

The court awarded costs to the applicant and other beneficiaries, payable largely by the former estate trustees personally due to their improper conduct and conflicts of interest, with some portions payable by the estate.

The plaintiff and third party moved for contempt of court against the defendants for failing to remove a dock as ordered in a previous trial judgment.

The court heard evidence from a Ministry of Natural Resources official regarding the defendants' efforts to obtain the necessary work permits for the removal.

The court found that the defendants were making genuine efforts to comply with the judgment and navigate the regulatory requirements, and therefore dismissed the contempt motion, ordering the defendants to continue using best efforts to remedy the nuisance.

The plaintiff and third party moved for contempt against the defendants for failing to remove a dock as ordered following a trial.

The defendants argued that the delay was due to the need for a Ministry of Natural Resources work permit and a pending appeal.

The court found that while the defendants improperly delayed applying for the permit while seeking a stay, they were justified in waiting for the permit before commencing demolition.

The court adjourned the contempt motion to allow time for the permit to be issued and the work to be completed, with leave to return if further delays occur.

This endorsement addresses the costs arising from a two-week trial where the Plaintiff and Third Party were entirely successful.

The court awarded substantial indemnity costs for the trial, citing the Defendants' unreasonable litigation conduct and the Garber Defendants' rejection of a generous Rule 49 offer to settle.

Additionally, costs thrown away due to an adjournment caused by Ms. Garber's ill health were awarded against the Garber Defendants, though reduced from the amount claimed.

The decision also clarifies that the Costs Subcommittee's recommended rates for Rule 57 are outdated and discusses the limited relevance of a litigant's ability to pay costs without sufficient evidence.

The applicant hockey team sought an interim injunction to adjourn an internal league appeal of a discipline ruling, arguing that an arbitration clause in a player's contract should govern the underlying dispute.

The court dismissed the motion, finding that the commissioner's discipline decision concerned a breach of league rules, not the player's contract, and that the Arbitration Act did not apply to the league's disciplinary process.

The court also noted that the applicant should exhaust internal league remedies before seeking court intervention.