Douglas Menzies

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.

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.

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 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.