Donald B. Shanks

The applicant, an estate trustee, sought costs following a successful motion for directions regarding the sale of an estate property to the respondent beneficiaries.

The court applied the modern approach to estate litigation costs, emphasizing the 'loser pays' principle to discourage treating the estate as an ATM for litigation.

The court awarded the applicant partial indemnity costs of $3,500 payable by the respondents, and a further $5,000 payable by the estate to fully indemnify her reasonable costs as trustee.

The applicant, an estate trustee and beneficiary, brought a motion for directions regarding the sale of the deceased's home to two other beneficiaries, who were also estate trustees.

The purchasing beneficiaries sought to credit their one-third beneficial interests against the discounted fair market value purchase price.

The applicant argued that the full purchase price should be paid to the estate to cover potential estate expenses before final distribution.

The court directed that the beneficiaries must pay the full discounted purchase price to the estate, without crediting their beneficial interests, to ensure sufficient funds for anticipated estate costs.

A commercial tenant sought a declaration under the Commercial Tenancies Act that a landlord had wrongfully distrained its assets and equipment after terminating the tenancy by changing the locks, or alternatively that the distraint was excessive.

The application judge found that changing the locks did not terminate the lease because the tenant retained access to the premises during business hours and by arrangement after hours.

The application judge ordered a trial to determine whether the distraint was excessive, as the parties had not provided sufficient particularized evidence of the value of the distrained equipment or the exact amount of rent arrears.

The Court of Appeal upheld the application judge's decision, finding that while a summary determination was possible on the lease termination issue, the parties had not presented sufficient evidence to determine the amount of rent outstanding, the value of the distrained goods, or any damages.

An employee with a disability developed arm and hand problems due to work demands and was placed on medical leave, then terminated.

The employee sued for wrongful dismissal and Human Rights Code violations.

The trial judge awarded 15 months' pay in lieu of notice and $10,000 in damages, finding the employer had accommodated the disability to the point of undue hardship and that disability was a factor in termination.

On appeal, the employee sought additional damages for lost income during the leave period, while the employer cross-appealed arguing the employment contract was frustrated.

Both the appeal and cross-appeal were dismissed, with the court finding no palpable and overriding error by the trial judge.

The appellant appealed a Small Claims Court judgment awarding him $750 for a defective roof installation.

He argued the trial judge erred by allowing a representative of the shingle manufacturer to give opinion evidence without filing an expert report or being formally qualified as an expert.

The Divisional Court held that Small Claims Court judges have discretion under section 27 of the Courts of Justice Act to admit opinion evidence without a prior report.

However, the Court found the trial judge made a palpable and overriding error by discounting the witness's $2,000 repair estimate by 75%.

The appeal was allowed in part, and damages were increased to $2,250.

The respondent school board requested a reconsideration of a Tribunal decision that found it had discriminated against a student with a disability by reducing his Educational Assistant support, failing to provide a behaviour management plan, and excluding him from school.

The respondent alleged several factual errors in the original decision.

The Tribunal denied the request, finding that the alleged errors, even if corrected, would not alter the outcome of the decision and that the respondent was attempting to re-argue matters already decided.

The applicant, a student with multiple exceptionalities including a mild intellectual disability and ADHD, alleged discrimination by the respondent school board.

The Tribunal found that the respondent failed to accommodate the applicant's disability-related needs by significantly reducing his educational assistant support without an objective assessment, failing to implement a timely behaviour management plan, and excluding him from school for an extended period without adequate educational programming.

The Tribunal also found that the respondent's imposition of a permanent communication ban on the applicant's mother hindered the accommodation process.

The respondent failed to establish that accommodating the applicant would cause undue hardship.

The Tribunal ordered the respondent to pay $35,000 in compensation for injury to dignity, feelings, and self-respect, and directed the implementation of specific accommodations and the lifting of the communication ban.

The respondent school board sought an order relieving it from complying with a previous interim order requiring it to return the applicant student to school, alleging the student's mother breached communication restrictions.

The applicant cross-moved to amend the interim order to permit direct communication and remove a trespass notice.

The Tribunal found that communication by the mother's legal counsel regarding an alleged incident did not breach the interim order.

The Tribunal dismissed both requests, maintaining the original interim order and communication restrictions pending the final hearing.

Following a seven‑day construction lien trial in which the plaintiff obtained judgment exceeding its pre‑trial offer to settle, the court determined the appropriate costs award.

The plaintiff sought elevated costs relying on Rule 49.10 and alleged reprehensible litigation conduct by one of the defendants.

The court held that the offer to settle engaged Rule 49.10 and that the defendant’s conduct at trial— including untruthful testimony, refusal to admit obvious facts, late allegations of deficiencies, and unfounded accusations of dishonesty— constituted reprehensible conduct that lengthened the trial.

Substantial indemnity costs were therefore appropriate, subject to reductions for certain law clerk and client‑incurred expenses considered overhead or not recoverable.

The defendants were ordered to pay costs totalling $88,679.30.

The applicant requested to reschedule the hearing dates of March 20-22, 2013, because their counsel was required to appear before the British Columbia Court of Appeal.

The respondent opposed the request.

The Tribunal granted the request, vacated the March dates, and rescheduled the hearing to June 2013, with alternative dates offered in April.

The applicant, a nine-year-old student with disabilities, was excluded from school due to behavioural issues.

He sought an interim remedy to be transitioned back to school with a full-time Educational Assistant.

The Tribunal found that excluding the child for an entire school year would cause irreparable harm.

The Tribunal ordered the respondent to implement its psychologist's transition plan and return the applicant to school, provided the applicant's mother agreed to the plan's terms.

The Tribunal also ordered the production of relevant documents.

Following two unsuccessful defence motions seeking to adjourn a scheduled construction lien trial and introduce a late expert report, the court addressed costs consequences.

The court found that the motions were tactical attempts to delay the proceedings and manipulate the Rules of Civil Procedure after a trial date had already been scheduled.

Substantial indemnity costs were awarded against the defendants for both motions as a sanction for litigation conduct intended to frustrate the plaintiff’s claim and waste court resources.

The court reduced certain hourly rates claimed but fixed costs on a substantial indemnity basis for each motion.

The defendants were ordered to pay fixed costs totaling $6,309.12 for the June motion and $5,761.02 for the August motion.

The plaintiff contractor brought an action under the Construction Lien Act against the defendant owners for unpaid invoices relating to masonry work on a remote island cottage.

The defendants argued the plaintiff over-billed, delayed the project, and performed deficient work.

The court found the parties had a time and materials contract, the plaintiff's billings were largely accurate, and the defendants' complaints about deficiencies were unfounded or related to work outside the plaintiff's scope.

The court awarded the plaintiff $117,554.43, including interest and late charges, and declared a lien on the property.

The applicant filed an application alleging discrimination in educational services and sought interim remedies, including the provision of an educational assistant and the lifting of a communication ban before the start of the school year.

The respondent requested a two-week extension of time to respond to the interim remedy request, citing counsel's trial schedule.

The Tribunal denied the full extension, noting the need for timeliness before the school year begins, but granted a one-week extension.

Following the dismissal of a motion effectively seeking partial summary judgment, the court determined the appropriate costs award.

The responding party sought costs on a substantial indemnity basis under Rule 20.06 of the Rules of Civil Procedure, alleging unreasonable conduct in bringing the motion.

The court found the motion was not brought in bad faith or for delay, but that costs should follow the event on a partial indemnity scale.

Applying the reasonableness principles from appellate authority on costs, the court reduced the amount claimed due to excessive research time and fixed costs at a reasonable amount.

The moving party contractor sought partial summary judgment declaring that funds held by the owner constituted trust monies under the Construction Lien Act and requested immediate payment.

The owner acknowledged the funds were subject to a statutory trust but asserted a right of set-off for alleged delay and deficiency damages under the contract.

The court examined the interaction between the trust provisions and the statutory holdback regime, holding that once lien rights of subcontractors have expired, funds may cease to be characterized as holdback and the owner may assert set-off rights against trust funds.

Because the validity and quantum of the set-off claim and the lien claim remained disputed, these issues constituted triable issues.

Partial summary judgment and immediate payment were therefore inappropriate.

The appellant moved for substantial indemnity costs and an order prohibiting the respondent from filing responding material after the respondent's cheques for costs, payable as a condition of an adjournment, were returned for insufficient funds.

The respondent's counsel had promptly replaced the cheques with a firm trust cheque once notified.

The court awarded $200 in costs for the inconvenience of the dishonoured cheques but dismissed the request to prohibit responding materials as premature.

The court noted the escalation of costs was due to a lack of professional courtesy and communication between counsel.

The applicant failed to attend the scheduled hearing of his human rights application.

The respondents requested a dismissal on the basis of abandonment and abuse of process.

The adjudicator granted the dismissal.

A late email requesting an adjournment was subsequently discovered, but the adjudicator declined to reconsider the dismissal, noting the lack of exceptional circumstances and the applicant's failure to follow case management directions.

The appellant appealed a decision regarding the interpretation of s. 33 of the Ontario Human Rights Code.

The appellant argued that the provision should be interpreted to require an investigator to prepare and submit a report of their findings to the Commission, relying on the Supreme Court of Canada's decision in University of British Columbia v. Berg.

The Court of Appeal dismissed the appeal, finding no basis to read such a requirement into the statute, as there is no uniformity across Canadian human rights legislation regarding investigator reports.

The appellant appealed the identification and placement of her child by the school board's Identification, Placement and Review Committee (IPRC).

After several days of hearings, the parties reached a mutually satisfactory agreement.

The Tribunal ordered, on consent, that the child be identified as learning disabled/behavioural, placed in a secondary school with appropriate support, and that an Individual Education Plan (IEP) be developed including two hours of daily remedial one-to-one teaching.