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 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 defendants moved to dismiss the plaintiff's action for lack of jurisdiction, arguing no real and substantial connection to Ontario and a California choice-of-law clause.

The plaintiff, residing in Ontario, contended the defendants carried on business in Ontario through third-party retailers and marketing.

The court, adopting prior rulings, found no actual presence of the defendants in Ontario and that the claims arose from a California-governed contract, thus dismissing the action for want of jurisdiction.

The defendants, Man-Shield (NWO) Construction Inc. and Manshield (NWO) Construction, Inc., brought an application to stay multiple construction lien actions in favour of arbitration.

The subcontractors and owners opposed the stay.

The court dismissed the application, finding that Man-Shield had unduly delayed in seeking the stay, as measured from the date the statements of claim were issued.

The court also found Man-Shield estopped by its conduct and that granting a stay would create more uncertainty and delay, rather than facilitate resolution.

This decision addresses the costs arising from a dismissed motion by two campers' associations to intervene in a proceeding.

Rock Solid Holdings Inc., the applicant in the main proceeding, sought costs.

The court, exercising its discretion under s. 131(1) of the Courts of Justice Act, awarded Rock Solid partial indemnity costs of $7,750 plus HST and disbursements of $829.08.

The court considered Rule 39.02(4)(b) regarding cross-examinations but "ordered otherwise" due to "bald assertions" in the affidavits filed by the proposed intervenors.

The costs were to be paid jointly and severally by the two campers' associations.

The defendant Rainy River First Nation brought a motion for summary judgment to dismiss the plaintiffs' defamation claim, which arose from a band council resolution (BCR) describing them as "undesirables" and prohibiting their entry onto First Nation territory.

The court found that the BCR was published and contained defamatory words.

The defendant's arguments of qualified privilege, issue estoppel, and abuse of process were dismissed.

Summary judgment was granted in favor of the plaintiffs, with damages assessed at $5,000 for each plaintiff due to limited publication and minimal impact on reputation.

No costs were awarded.

The plaintiff brought a motion seeking production of a defence medical examination report and later sought costs after the report was produced following service of the motion.

The defendants argued the motion was unnecessary and that no order for a medical examination had been made under s. 105 of the Courts of Justice Act, rendering rule 33.06(2) inapplicable.

The court held that disclosure obligations could still arise under the broader document production rules and found the defendant failed to produce the report promptly after receiving it.

Although the motion was resolved prior to argument, it was reasonable for the moving party to have brought it.

Partial indemnity costs of $1,000 were awarded, reflecting both the defendant’s delay and the plaintiff’s own failure to comply with an earlier order to set the action down for trial.

The plaintiff brought a motion under Rule 36 of the Rules of Civil Procedure seeking leave to examine a former defendant and corporate executive before trial.

The witness had relocated outside Canada and the plaintiff argued the examination was necessary to preserve potentially crucial evidence regarding the hiring of a defendant.

The defendants opposed the motion, arguing that witnesses should generally testify at trial, particularly before a jury, and that alternative mechanisms such as letters rogatory were available.

The court held that Rule 36 was designed for circumstances where a witness may be outside the jurisdiction and could possess important evidence.

Leave was granted to conduct a pre‑trial examination of the witness, with the examination to be videotaped and undertakings completed beforehand.