Derek Edward Daniel Zulianello

This is a costs endorsement following a motion brought by the City of Thunder Bay seeking to compel production of documents and to determine that the deemed undertaking rule would not apply.

The respondents opposed production of certain documents (ATR Applications) but agreed to inspection of the 2017 Settlement Agreement.

The court's prior decision found in favour of the respondents on both issues.

The respondents sought costs on a partial indemnity basis, claiming $9,863.08.

The City argued for a reduced award of $3,000.00.

The court awarded costs of $6,000.00 inclusive of fees, disbursements, and HST on a partial indemnity scale, finding that while the respondents were successful, there was some duplication of effort between senior and junior counsel that should be accounted for.

The decision addresses a motion regarding the production and inspection of documents in an interpleader application brought by McAsphalt Industries Limited, a tenant on lands leased from the Fort William First Nation Development Corporation.

The City of Thunder Bay sought production of a 2017 Settlement Agreement and certain Addition to Reserve (ATR) Applications.

The court held that the 2017 Settlement Agreement should be produced for inspection, subject to the deemed undertaking rule, but refused to order production of the ATR Applications, finding they were not referred to in the relevant pleadings or affidavits and that their production was premature.

The court also declined to exempt the City from the deemed undertaking rule at this stage.

This decision concerns a construction lien action that settled before trial.

The plaintiffs, trustees and agents for union members, registered a lien and commenced an action against the contractor and property owner.

After the underlying debt was paid, the property owner (Con-Form Holdings Limited) sought costs from the plaintiffs, arguing the lien was untimely and exaggerated.

The court dismissed Con-Form’s claim for costs, finding the plaintiffs’ actions were justified by the contractor’s default and that the validity and amount of the lien were never adjudicated.

The court ordered Con-Form to pay the plaintiffs $1,000 in costs for responding to the costs submissions.

The plaintiffs, Tyler Hogan and TGH Holdings Ltd., brought a motion for default judgment against Brent Massaro and BJSM Holdings Ltd., seeking declarations of oppression and breach of fiduciary duties, and an order for the defendants to purchase the plaintiffs' interests in Thunder Bay Broom and Chemical Ltd. The defendants had been noted in default due to their deliberate failure to participate in litigation, including discovery.

The court found that the defendants' conduct was oppressive and breached fiduciary duties, warranting personal liability for Massaro.

The court ordered a buyout of the plaintiffs' shares for $13,350,000, based on an expert valuation that accounted for known misconduct, but declined to include speculative damages for unknown misconduct.

Costs were awarded to the plaintiffs.

This decision addresses the costs of a dismissed summary judgment motion.

The defendant's motion for summary judgment, arguing the plaintiff's claim was statute-barred, was dismissed.

The plaintiff, as the successful party on that motion, sought substantial indemnity costs.

The court, applying Rule 20.06 and Rule 57.01, determined that substantial indemnity was not warranted due to the absence of bad faith or unreasonable conduct.

The court fixed the plaintiff's costs at $7,500.00 plus HST, payable by the defendant, finding the plaintiff's claimed costs excessive and disallowing certain disbursements as overhead.

This employment law appeal addressed three issues: mitigation of damages, the awarding of aggravated damages, and the joint and several liability of common employers.

The appellants argued the trial judge erred in finding the respondent unable to mitigate due to physical incapacity, awarding aggravated damages, and holding them jointly and severally liable.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the respondent was physically unable to mitigate, that aggravated damages were warranted due to the employer's bad faith conduct during termination, and that both entities were common employers, thus jointly and severally liable.

The defendant, Terry Dyck, brought a motion for summary judgment seeking to dismiss the plaintiff, Warren Hughes's, claim on the grounds that it was statute-barred by the Limitations Act, 2002.

The parties, both former investment advisors, had entered into a Joint Advisory Agreement which dissolved upon the termination of Dyck's employment.

Hughes subsequently filed a claim against Dyck for breach of contract, misrepresentation, and breach of fiduciary duty.

The court applied the principles for summary judgment from Hryniak v. Mauldin and the discoverability principles from the Limitations Act.

The court found that there were genuine issues requiring a trial, including the need to weigh evidence and assess credibility.

The motion judge concluded that the earliest date triggering Hughes's claim was his own termination from Wellington, or alternatively, Dyck's termination, both of which fell within the two-year limitation period.

Consequently, the motion for summary judgment was dismissed.

This endorsement addresses the costs of a successful motion by the plaintiffs to strike the defendants' Statement of Defence.

The plaintiffs sought substantial or partial indemnity costs, arguing the defendants' non-compliance with disclosure obligations necessitated the motion.

The court found the plaintiffs' claimed hourly rates excessive for the Northwest Region and the docketed hours unreasonable for a non-complex, largely undefended procedural motion.

Applying principles that costs should be fair and reasonable, reflecting parties' expectations, the court awarded the plaintiffs $7,500.00, inclusive of fees, HST, and disbursements, significantly less than sought.

The moving party, a towing company, sought a stay of a decision by the Licence Appeal Tribunal confirming the cancellation of its commercial vehicle operator's registration pending an appeal.

The cancellation was based on a poor safety rating and the safety records of related parties involved in an unclosed sale of the business.

Applying the RJR-MacDonald test, the court found a serious issue to be tried but concluded that the public interest in highway safety outweighed the potential financial harm to the moving party.

The motion for a stay was dismissed.

Following a successful wrongful dismissal action under the simplified procedure, the plaintiff sought costs of over $100,000 on a substantial indemnity basis.

The defendants argued the claimed costs were disproportionate to the $98,576 damages awarded and the simplified procedure limits.

The court found the plaintiff's counsel's hours and rates unreasonable for a straightforward wrongful dismissal action.

Applying the principle of proportionality, the court awarded the plaintiff partial indemnity costs fixed at $55,000 for fees and $9,000 for disbursements, plus HST.

The self-represented applicant objected to the form and content of a draft order reflecting a previous panel decision, arguing that the costs were unreasonable, seeking a grace period for payment, and disputing the interest rate.

The court dismissed the objections, noting that the quantum of costs had already been decided, the panel did not grant a deferral, and the 2.0% post-judgment interest rate was correct under the Courts of Justice Act.

The draft order was approved as to form and content.

The applicant sought judicial review of three decisions of the Human Rights Tribunal of Ontario dismissing her application against her former employer for alleged discrimination in denying her tenure and terminating her employment.

The Tribunal had directed the matter to a preliminary and summary hearing, ultimately dismissing the claims for delay and for having no reasonable prospect of success.

The Divisional Court dismissed the application for judicial review, finding that the Tribunal's procedures were fair and its decisions were reasonable.

The court declined to consider new Charter and negligence claims raised for the first time on judicial review.

The appellants appealed an order dismissing their action for delay against two respondents under Rule 48.14(7) of the Rules of Civil Procedure.

The motion judge found the appellants failed to provide an acceptable explanation for a four-year delay, rejecting their "wait and see" approach tied to another delayed action.

The Court of Appeal upheld the dismissal, affirming the motion judge's discretionary decision and reiterating that failure on the first part of the two-part test (acceptable explanation) is sufficient for dismissal.

The appellant appealed from an order under section 140 of the Courts of Justice Act that prohibited him and any company he controlled from instituting or continuing any proceedings in any court except by leave of a Superior Court judge.

The appellant raised both substantive and procedural grounds of appeal, including claims that he was denied natural justice by not being allowed to give viva voce evidence, call witnesses, or convert the application into an action.

The Court of Appeal dismissed the appeal, finding no procedural error and no palpable and overriding error in the application judge's factual conclusions or legal analysis.

The applicant, Marilyn Ellen Mihalcin (Sally), sought to amend her pleadings to include an equalization claim against the estate of her deceased husband, Frank Mihalcin, and to extend the six-month limitation period for filing such a claim under the Family Law Act (FLA).

The court applied the three-part test under FLA s. 2(8) for extending time limits: apparent grounds for relief, delay incurred in good faith, and no substantial prejudice.

The court found that the applicant failed to provide sufficient evidentiary basis to demonstrate apparent grounds for relief, as no financial statement was filed to show an entitlement to an equalization payment.

Furthermore, the applicant failed to prove that the delay in formally filing the election was incurred in good faith, citing vague evidence regarding her former solicitor's actions.

While the court agreed that no substantial prejudice would arise, the failure to satisfy the first two criteria, coupled with insufficient grounds for exercising residual judicial discretion, led to the dismissal of the motion.

Avis Industrial Corporation applied for an order declaring Gordon Gravelle a vexatious litigant, seeking to preclude him and associated corporations from commencing or continuing legal proceedings without court leave.

The court reviewed Mr. Gravelle's extensive history of litigation, which included numerous unsuccessful motions for reconsideration, parallel actions, and appeals dismissed for delay or lack of merit, often involving the same issues or parties.

The court found that Mr. Gravelle's conduct exhibited characteristics of vexatious litigation, such as ignoring adverse rulings, engaging in repetitive proceedings, and failing to pay costs.

Despite Mr. Gravelle's sincere belief in the merit of his claims, the court concluded that his actions persistently abused the court process and squandered judicial resources.

An order was issued under section 140 of the Courts of Justice Act, requiring leave for future proceedings and imposing conditions, including the payment of outstanding costs.

The appellant, a tradesman hired to complete construction of a two-story front porch, fell from the roof and was seriously injured.

He sued the homeowner respondents for negligence and breach of duty under the Occupiers' Liability Act, alleging they failed to provide safety equipment.

The motion judge granted summary judgment dismissing the action.

The Court of Appeal upheld the dismissal, finding that the duty of an occupier toward a hired professional tradesman is limited to ensuring the premises are reasonably safe and does not extend to supervising the tradesman's work practices or providing safety equipment for work-related hazards.

The appellant brought four related actions against various respondents arising from dealings that occurred primarily in the United States between 2001 and 2016.

The respondents moved to dismiss or stay the actions on the ground that Ontario courts lacked jurisdiction due to the absence of a real and substantial connection to the province.

The motion judges granted the motions and dismissed all actions.

On appeal, the Court of Appeal considered whether Ontario jurisdiction existed based on: (1) consulting contracts allegedly entered into at Toronto airport; (2) products being advertised, marketed, and distributed in Ontario; and (3) respondents carrying on business in Ontario.

The Court of Appeal upheld the dismissals, finding no real and substantial connection to Ontario and affirming that mere advertising or distribution through third-party retailers does not constitute carrying on business in the jurisdiction.

The applicants sought an order under s. 140 of the Courts of Justice Act declaring the respondents vexatious litigants.

The individual respondent had commenced multiple actions in Ontario regarding matters already settled in California, all of which were dismissed for lack of jurisdiction or abuse of process.

He also engaged in harassing and abusive communications with opposing counsel.

The court found the respondent's conduct met the criteria for a vexatious litigant and ordered that he and his corporations require leave to commence any new proceedings in Ontario.

Requests to stay existing appeals and seal the court file were dismissed.

The defendants were successful in a motion to dismiss the plaintiff's action for want of jurisdiction and sought costs.

The self-represented plaintiff argued costs should be stayed pending appeal.

The court reviewed the factors under Rule 57.01(1) of the Rules of Civil Procedure and found the defendants' hourly rates reasonable but the total time claimed excessive.

Costs were awarded to the defendants on a partial indemnity basis, fixed at $10,500 for fees plus disbursements and HST.