Donald Gordon Kidd

Waterloo North Condominium Corporation No. 161 and John Curtis Redmond each brought applications concerning alleged breaches of condominium rules and common element maintenance issues, specifically regarding surface drainage and grading.

The parties subsequently entered into Minutes of Settlement, resolving all substantive disputes but reserving the question of costs for judicial determination.

The court declined to award costs to either party, emphasizing that where parties settle all substantive issues without judicial adjudication, the court should be reluctant to conduct a "paper trial" on the merits solely for the purpose of determining costs.

Following a successful motion fixing the statutory construction lien holdback amount under the Construction Lien Act, the court determined the appropriate costs payable to lien claimants.

The successful parties sought substantial indemnity costs based on a late offer to settle and alleged litigation conduct by the opposing mortgagee representative.

The court held that the offer did not trigger Rule 49 consequences because it was served fewer than seven days before the hearing, and there were no exceptional circumstances justifying costs beyond the usual partial indemnity scale.

Costs were therefore awarded primarily to the two counsel who carried the motion on behalf of all lien claimants, with modest costs granted to several additional claimants who attended but did not argue the motion.

Following a motion in which the defendants successfully sought to strike an affidavit sworn by a lawyer from the plaintiffs’ law firm, the court addressed the quantum of costs payable.

Although the defendants succeeded on grounds different from their primary argument, the court found they were nevertheless the successful party.

The court assessed reasonable preparation and attendance time for counsel and limited clerk time on a partial indemnity scale.

Costs were calculated using hourly rates for counsel and clerk time and applicable tax.

The moving parties brought a motion for summary judgment seeking dismissal of the action and requested that the responding parties’ affidavit evidence sworn by a law partner of counsel be struck.

The court considered whether it was proper for counsel to rely on an affidavit sworn by a partner in the same firm who had previously acted as lawyer of record.

Reviewing prior jurisprudence and professional conduct rules, the court held that certain portions of the affidavit contained improper hearsay, legal argument, and evidence that should have come from the client or documentary exhibits.

The court struck the improper portions and ultimately struck the affidavit in its entirety while granting leave to file new responding material.

The motion for summary judgment was not determined on the merits at this stage.