Douglas G. Menzies

The moving party sought leave to appeal a decision of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to the responding parties in the total amount of $20,000.

The plaintiff surety brought a motion for summary judgment against the defendant indemnitors for payments made under performance and labour and materials bonds.

The defendants opposed the motion, arguing the plaintiff failed to produce relevant documents requested during cross-examination that were necessary to assess the reasonableness of the payments.

The court found that the plaintiff's blanket refusals to produce the requested documents resulted in an incomplete evidentiary record.

Consequently, the plaintiff failed to discharge its onus of showing there was no genuine issue requiring a trial, and the motion was dismissed.

This endorsement addresses the issue of costs following a trial where the parties could not agree.

The applicant sought costs, arguing she was the successful party, while the respondent claimed divided success and financial hardship.

The court found the applicant to be the successful party, having prevailed on major issues including custody, income imputation, child support, spousal support, and equalization.

The court also found the respondent's conduct, including attempts to mislead the court regarding his income and assets, amounted to bad faith.

Considering the Family Law Rules, offers to settle, trial positions, and the respondent's unreasonable behaviour, the court fixed costs payable by the respondent to the applicant at $60,000 inclusive of HST and disbursements.

This case involved a family law trial addressing custody, access, child support, spousal support, and equalization of net family property following the parties' separation and divorce.

The court made strong adverse credibility findings against the respondent due to evasiveness and contradictions in his testimony and financial disclosure.

The applicant was granted sole custody of the child with final decision-making authority, and the respondent's income was imputed at $150,000 for support purposes.

The court ordered child support and periodic spousal support, and an equalization payment from the respondent to the applicant.

Requests for lump sum spousal support and a restraining order against the respondent were denied.

The moving parties sought costs on a substantial indemnity basis following a successful motion to compel the responding party to attend an examination in aid of execution.

The court disallowed costs claimed for the preparation of costs submissions and for the time of a lawyer who attended cross-examination as a witness.

Applying the factors under Rule 57.01 of the Rules of Civil Procedure, the court awarded the moving parties reasonable costs fixed at $4,500.

Following the death of the children's mother, the maternal grandparents commenced proceedings against the children's biological father and step-father for custody, child support, and various property claims.

The parties settled all substantive issues but could not agree on costs.

The court determined it had jurisdiction to award costs despite the settlement because there was a sufficient evidentiary record.

The court found the applicants were successful on the support issues but unsuccessful on the property claims against the step-father, and awarded the applicants costs of $6,000 against the biological father and $10,200 against the step-father.

Following a trial where the applicant successfully defended a will challenge, the parties made written submissions on costs.

The applicant sought substantial indemnity costs against the unsuccessful objectors.

The objectors argued their costs should be paid from the estate because they had reasonable grounds to challenge the will.

The court applied the modern approach to estate litigation costs, finding that the strength of the objectors' case regarding the testator's capacity engaged public policy considerations.

The court ordered the objectors' costs of $50,227.17 and the applicant's full costs to be paid out of the estate.

The plaintiff, Devon Hakvoort, brought a motion for summary judgment seeking costs, enhanced pre-judgment interest, and professional fees in a fire loss insurance claim, despite the principal amount owed by the defendant insurer, North Waterloo Farmer’s Mutual Insurance, having been paid.

The court dismissed the motion, finding that the defendant had discharged all its contractual obligations and that the plaintiff was not entitled to further compensation.

The action was dismissed without costs, with the plaintiff ordered to pay a previously awarded $1,000.00 in costs.

The court noted that the litigation could have been avoided through a tolling agreement or earlier use of the statutory appraisal process under the Insurance Act, and criticized the plaintiff's initial pleading and abandoned bad faith claim.

The applicant, Jon Jessie William Driscoll, sought a Certificate of Appointment of Estate Trustee with a Will, naming him as the sole beneficiary of his mother, Shirley Driscoll's, estate.

Three of Shirley's daughters (the objectors/respondents) challenged the will, alleging lack of testamentary capacity and undue influence.

The court conducted a summary trial, reviewing medical evidence and family testimony.

The court found that Shirley Driscoll possessed testamentary capacity when she executed her will and was not subjected to undue influence.

The decision emphasized that a testator has the right to treat beneficiaries unjustly, and the will reflected Shirley's long-held mindset of primogeniture.

The objections were dismissed, and Jon Driscoll was confirmed as Estate Trustee.

The applicants sought an extension of time to file a notice of appeal and leave to appeal from an order refusing to grant a charging order for a solicitor's lien and a salvage lien against a bankrupt's estate.

The Court of Appeal granted the extension of time, finding a bona fide intention to appeal and no prejudice.

The Court also granted leave to appeal under s. 193(e) of the Bankruptcy and Insolvency Act, finding that the proposed appeal raised issues of general importance to bankruptcy practice and was prima facie meritorious.

Creditors who had provided legal services and financing to an insolvent debtor sought declarations of a solicitor’s lien and a salvage lien against funds arising from the sale of a matrimonial home.

The debtor had filed a Notice of Intention and proposal under the Bankruptcy and Insolvency Act, triggering a stay of proceedings.

The court held the stay should not be lifted for the alleged salvage lien because the creditor had failed to properly perfect any assignment of execution debts or security interests.

Although the stay was lifted to consider potential solicitor’s liens, the court declined to grant charging orders, finding that equitable considerations weighed against relief where the lawyers failed to secure available mortgage protection and delayed seeking the lien while other creditors obtained competing claims.

The motion for liens and charging orders was denied.

Following a consent order resolving an application concerning incapacity and powers of attorney, the court determined the issue of costs.

The applicant sought costs and requested that opposing counsel personally pay costs under Rule 57.07(1) of the Rules of Civil Procedure.

The court found the applicant had substantially succeeded and concluded that the respondents and their counsel had acted improperly by attempting to obtain new powers of attorney despite evidence of incapacity and by advancing positions that unnecessarily escalated the litigation.

The court fixed substantial indemnity costs and held that counsel for the respondents had caused unnecessary costs through improper advice and litigation conduct.

Costs were ordered against the respondents, with 25% payable personally by their lawyer.

Following a family law trial concerning spousal support and contractual issues, the successful party sought costs after serving an Offer to Settle that was more favourable to the opposing party than the ultimate trial award.

The court considered Family Law Rule 18(14) and the time‑computation provisions of Family Law Rule 3(1) in determining whether the offer was served at least seven days before trial.

Applying the rule for counting days and drawing guidance from Rule 3.01 of the Rules of Civil Procedure, the court held the offer satisfied the timing requirement.

Even if it had not, the court would exercise discretion under Family Law Rule 18(16) to award elevated costs given the significant disparity between the offer and the trial outcome.

The respondent was awarded $48,500 in costs inclusive of fees, disbursements, and HST.

The parties separated after a 21-year marriage.

The appellant wife alleged the separation was orchestrated by the respondent husband's children and challenged his mental competency due to Parkinson's disease.

The motion judge found the husband competent based on capacity assessments, ordered the partition and sale of the matrimonial home, and dismissed the application against the children.

The Court of Appeal dismissed the wife's appeal, holding that the motion judge's finding of competency was entitled to deference and drove the result of the other issues.

The respondent sought to set aside a marriage contract and subsequent separation agreement under s. 56(4) of the Family Law Act, or alternatively obtain spousal support under s. 15.2 of the Divorce Act despite contractual waivers.

The court found no material financial non-disclosure but concluded that the spousal support waivers in both agreements were obtained through undue influence and misrepresentation and were improvident in light of the parties’ circumstances.

The property provisions of the agreements were upheld, but the spousal support waivers were set aside.

Applying the Miglin framework, the court determined the agreements did not substantially comply with the objectives of the Divorce Act.

The respondent was awarded lump-sum and ongoing periodic spousal support.

Following an application concerning enforcement of an agreement of purchase and sale for real property, the court determined entitlement and quantum of costs.

The purchaser applicant had succeeded in obtaining an order confirming that the vendor corporation remained obligated to convey title and extending the closing date.

Competing internal factions within the respondent corporation advanced opposing positions, but neither faction was treated as a party for purposes of the costs determination.

Applying Rule 57.01 of the Rules of Civil Procedure and s. 131 of the Courts of Justice Act, the court held that partial indemnity costs were appropriate and rejected a claim for higher or substantial indemnity costs.

Costs were fixed in favour of the applicant purchaser and payable by the respondent corporation.

The applicant purchaser brought an emergency application for specific performance of an agreement of purchase and sale for a commercial property.

The respondent vendor failed to close the transaction on the scheduled date, citing the purchaser's lack of mortgage funds, while the vendor itself had failed to answer requisitions or prepare closing documents due to an internal corporate dispute.

The court found that the vendor's failure to perform its obligations and its implied renunciation of the contract relieved the purchaser of the requirement to tender.

The court ordered specific performance, enforcing an extension of the closing date agreed to by the vendor's ostensible representatives.

Following an administrative error where court staff failed to forward the respondent's costs submissions to the judge, the court reconsidered its initial costs order.

The court fixed the costs for the respondent, Menzies & Associates, at $20,000, payable by the appellants within 30 days.

Following an appeal where the appellants failed to file written submissions on costs, the Divisional Court awarded costs to the successful respondents.

The court awarded $30,000 to Woods Parisien, $20,000 to the Ville de Hawkesbury, and $20,000 to Menzies, payable by the appellants within 30 days.

The appellant appealed a Small Claims Court decision regarding the ownership of $9,000 in a joint bank account held by the deceased and his niece, the respondent.

The trial judge found that the deceased intended to gift the balance of the account to the respondent through survivorship, thereby rebutting the presumption of resulting trust.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings and concluding that the correct legal test was applied.