Derrick Mathew Fulton

The moving party sought summary judgment and additional costs after the responding party accepted a Rule 49 offer to settle for $50,000 stated to include all damages, costs, and interest to date.

The moving party argued that because the offer was silent on costs after the offer date, Rule 49.07(5)(b) entitled it to further costs incurred after the offer.

The court held that the wording of the offer explicitly included costs within the $50,000 amount and therefore disposed of the issue of costs.

As a result, no additional costs beyond the settlement sum were recoverable.

Costs of the motion were instead awarded to the responding party.

The plaintiff commenced an action against his former lawyers for professional negligence, alleging they failed to commence a claim against his insurer for damaged equipment.

The action was struck from the trial list and a status notice was issued.

At the contested status hearing, the court found the plaintiff failed to provide an acceptable explanation for the delay of over seven years and failed to show that the defendants would not suffer non-compensable prejudice.

The action was dismissed for delay.

The defendants brought a motion seeking to disqualify the plaintiff’s counsel on the basis that counsel had allegedly created a lawyer‑client relationship with a self‑represented defendant during settlement communications and obtained confidential information.

The court reviewed a series of emails and a telephone discussion initiated by the defendant proposing settlement and requesting assurances that the discussion would be “without prejudice” and off the record.

The court held that no solicitor‑client relationship or analogous relationship arose because the defendant knew counsel represented the opposing party and voluntarily initiated the communications.

The court further found that no confidential information was imparted and rejected allegations that counsel attempted to coach or solicit false evidence.

The motion was dismissed and the defendants were ordered to pay substantial indemnity costs.

Two conflicting applications were brought in the name of a condominium corporation regarding a board of directors election.

The former board sought to set aside the election results based on alleged proxy tampering, while the newly elected board sought to uphold the results.

The court found that the meeting chair lacked the authority to decertify the election weeks after issuing his final report.

Furthermore, the applicants challenging the election failed to prove that improper proxy tampering occurred or materially affected the outcome.

The court upheld the election results and ordered strict identification and deposit requirements for proxies in future elections.

Costs decision following a successful condominium compliance application.

The applicant sought full indemnity costs after obtaining a ruling that another unit owner's use of a condominium unit as an accounting office contravened the declaration and that part of the declaration conflicted with the Condominium Act, 1998.

Respondents argued that the dispute involved novel issues, internal board conflicts, and that mediation had been offered but refused.

The court applied the discretion under s. 131 of the Courts of Justice Act and the factors in Rule 57.01 of the Rules of Civil Procedure.

Partial indemnity costs of $4,900 were awarded against two respondents jointly and severally.

The appellant condominium corporation appealed the dismissal of its motion for summary judgment regarding a lien registered against the respondent's unit for unpaid common expenses.

The Court of Appeal held that under section 85 of the Condominium Act, a separate lien arises upon each default, meaning late registration only invalidates liens arising more than three months prior to registration.

However, the appeal was dismissed because the appellant failed to provide adequate written notice for the subsequent liens, as notice of an expired lien cannot cover subsequent defaults.

Following competing applications under s. 134 of the Condominium Act, 1998 regarding the validity of a requisition seeking removal of condominium board members, the court had previously declared the requisition invalid, granted injunctive relief restraining meetings and dissemination of related allegations, and dismissed the owners’ application.

The condominium corporation sought substantial indemnity costs of $41,000.

The court held the applications were properly brought under s. 134 and that mandatory mediation and arbitration under s. 132 did not apply.

Although the owners had made false and misleading representations, the conduct was not sufficiently reprehensible to justify substantial indemnity costs.

Costs were awarded on a partial indemnity basis and fixed at $18,000 as a fair and reasonable amount.

The moving defendants sought leave under Rule 26.01 of the Rules of Civil Procedure to amend their joint statement of defence, counterclaim, crossclaim, and third party claim by delivering separate pleadings and adding additional allegations and claims.

The court reaffirmed that leave to amend should generally be granted unless non-compensable prejudice would result, but scrutinized the proposed amendments for improper pleadings, including arguments, evidence, irrelevant matters, and procedural history that should instead be addressed through motions.

Numerous proposed paragraphs were rejected for pleading evidence, lacking particularity, or raising issues relating to pre-trial disclosure.

Leave was granted in part for both moving parties to amend their pleadings and third party claims, subject to extensive limitations and corrections.

Costs of $3,000 were awarded to one set of responding defendants for part of the motion.

The appellant appealed a master's order granting the plaintiff leave to amend her notice of action and statement of claim to add a private clinic as a defendant in a medical malpractice action despite the expiry of the presumptive two‑year limitation period.

The court considered whether pleadings and correspondence from the hospital constituted a triggering event under the discoverability provisions of s. 5 of the Limitations Act, 2002.

The court held that the hospital’s defence and cross‑claim, which alleged that treatment occurred in a private clinic, clearly pointed to another potential defendant and triggered the limitation period.

The plaintiff failed to demonstrate reasonable diligence in identifying the clinic despite available information and prolonged inaction by counsel.

The master erred in law by allowing the amendment while leaving the limitation issue to be determined later.

The plaintiff appealed a Master's decision refusing to add a nurse and a private clinic as defendants in a medical malpractice action after the expiry of the limitation period.

The Master found the plaintiff knew or ought to have known the nurse's identity within the limitation period, and dismissed the motion to add the clinic without prejudice to bringing a new motion on proper material.

The Divisional Court upheld the Master's decision, finding no error of law in applying the Limitations Act, 2002, which prohibits adding parties after the limitation period expires.

The court allowed the cross-appeal in part, imposing a 30-day time limit for the plaintiff to bring the second motion regarding the clinic.

The appellants appealed an order of the Superior Court of Justice.

The Court of Appeal dismissed the appeal, finding no merit in it.

The Court noted that it was obvious on the face of the prior order of Lang J. that it bound only the parties to that litigation.

Costs were awarded to the respondents.

The appellant tenant sued the respondent landlord for damages after slipping on ice on the walkway leading to her apartment.

The landlord defended the action by relying on a provision in the tenancy agreement that made tenants responsible for snow removal.

The motion judge found the provision was not inconsistent with the Tenant Protection Act.

On appeal, the Court of Appeal reversed the decision, holding that while a landlord may contract with a tenant for snow removal services, such an agreement must constitute a severable contractual obligation.

The provision in this case was inextricable from the tenancy agreement and too vague to create an enforceable contract for services, rendering it void under the Act.

The appellant appealed a decision dismissing their application, which alleged that a structured settlement in a personal injury action was intended to defeat, hinder, delay, or defraud their interests as a creditor.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the application judge's factual finding that there was insufficient evidence of the requisite intent.

The court also found no error in the application judge's discretionary decision not to draw an adverse inference against the respondent.

The appellant challenged the validity of a bank charge renewal agreement dated October 31, 2000.

However, she did not challenge the validity of the prior renewal agreement or the underlying bank charge.

The Court of Appeal held that even if the October 2000 renewal were set aside, the respondent bank was entitled to partial summary judgment for possession due to the failure to discharge the bank charge when it matured in October 2000.

The appeal was dismissed.

The appellants appealed an order lifting a stay and dismissing a motion to amend a counterclaim.

The appellants abandoned the appeal against the order lifting the stay.

The Court of Appeal denied the appellants' request for an adjournment, noting they had been warned repeatedly to retain new counsel.

The Court found the record did not support the motion judge's finding of an agreement to abandon the counterclaim.

However, because the appellants failed to provide a draft counterclaim, the Court could not find the motion judge erred in dismissing the motion to amend.

The appeal was dismissed without prejudice to a renewed motion on proper material.