David S. Thompson

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.

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 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.

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.

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.

During a trial for nuisance, the defendants sought to introduce evidence of the plaintiff's alleged retaliatory conduct (e.g., loud music, smoke) to mitigate punitive damages.

The court ruled this evidence inadmissible, finding no causal connection between the plaintiff's post-nuisance conduct and the defendants' initial actionable conduct (building a dock) or their failure to rectify it.

The court emphasized that for such evidence to be relevant to punitive damages, it must have provoked the defendant's actionable conduct, and any defense based on the plaintiff's conduct influencing the failure to rectify must be pleaded.

The appellants appealed the dismissal of their action for construction deficiencies in their cottage.

The motion judge had granted summary judgment to the respondents on the basis that the appellants' claims were statute-barred under the Limitations Act, 2002, finding that the claims were discoverable in 2009 when the appellants first noticed problems with a sinking deck pier.

The Court of Appeal allowed the appeal, finding that the motion judge made material misapprehensions of the expert evidence and erred in his discoverability analysis.

The court held that the appellants did not have sufficient knowledge of the construction defects until receipt of the Terraprobe report in 2012, which identified that the stone retaining wall and cottage foundation had been negligently constructed on loose soil.

The court emphasized that knowledge of a problem is insufficient; the claimant must know that the loss is non-trivial and that litigation is an appropriate remedy.

The plaintiffs, current and former female police officers, sought to certify a class action against the Waterloo Regional Police Services Board and Association for systemic gender-based discrimination and sexual harassment.

The defendants challenged the court's jurisdiction, arguing that labour arbitrators and the Human Rights Tribunal of Ontario had exclusive jurisdiction.

The court found it lacked jurisdiction, as the claims arose from the employment relationship governed by a collective agreement and the Police Services Act, which provide a comprehensive dispute resolution scheme.

Furthermore, the court determined that even if it had jurisdiction, the claims did not disclose a viable cause of action under common law, as human rights legislation precludes independent civil actions for discrimination and sexual harassment.

The appellant appealed a motion judge's decision dismissing his battery claim as statute-barred under the Limitations Act, 2002.

The appellant was charged with assaulting a police officer and resisting arrest following an incident on June 1, 2014, and was acquitted on February 17, 2016.

He commenced an action on June 2, 2016, two years and one day after the alleged battery.

The central issue was whether the appellant discovered his potential battery claim within the meaning of section 5(1)(a)(iv) of the Limitations Act, 2002, which requires knowledge that a legal proceeding would be an appropriate means to seek remedy.

The majority held that the discoverability date was February 17, 2016 (the date of acquittal), not June 1, 2014, because the battery claim and negligent investigation claim were inextricably intertwined and it was reasonable for the appellant to await the outcome of the criminal proceedings before deciding to pursue the civil battery claim.

The defendants brought a motion under Rule 21.01(1) to dismiss the plaintiff's claim in battery as statute-barred.

The claim arose from an incident on June 1, 2014, where the plaintiff alleged excessive force by police during his arrest.

The plaintiff was acquitted of criminal charges on February 17, 2016, and issued a notice of action on June 2, 2016.

The court found that the tort of battery, being an intentional act with immediate harm, was discoverable on June 1, 2014.

The plaintiff's arguments that the limitation period should run from his acquittal, his release from custody, or due to his alleged incapacity were rejected.

The court distinguished battery from negligent investigation/malicious prosecution claims, where discoverability is tied to the termination of criminal proceedings.

Consequently, the battery claim was dismissed as statute-barred, having expired on June 1, 2016, while the negligent investigation claim was allowed to proceed.

This endorsement addresses the costs of a motion where the applicants sought an advance payment for shares in a family business.

The applicants were largely successful in obtaining a substantial advance payment, significantly more than the respondents' offers to settle.

Despite some divided success on ancillary requests, the court found the applicants to have achieved substantial success on the primary issue.

The court fixed costs on a partial indemnity basis, awarding the applicants $60,000 for fees and $5,948.49 for disbursements, payable within 30 days, declining to defer the costs decision to the trial judge.

A property developer sued a municipal fire department and its officials alleging negligence and misfeasance in public office after inspectors issued fire safety inspection orders requiring upgrades to fire alarm audibility levels in residential buildings.

The orders were based on an Office of the Fire Marshal guideline recommending a 60 dBA audibility level, though that standard was not prescribed by statute or regulation.

The plaintiff argued the inspectors exceeded their statutory authority under the Fire Protection and Prevention Act and enforced a non‑binding guideline as if it were law.

The court held the inspectors acted in good faith, relied on guidance from the Office of the Fire Marshal, and believed they had authority to address potential fire safety risks.

The plaintiff failed to prove deliberate unlawful conduct or knowledge of lack of authority required for misfeasance, and negligence was also not established.