Douglas O. Smith

The Plaintiff, Esau Max Wynter Jr., sought costs following a successful 8-day trial where he was awarded $53,231.00 plus prejudgment interest for excessive force used by the Defendants during a search warrant execution.

The Plaintiff requested $117,650 plus HST and disbursements on a partial indemnity scale.

The Defendants proposed $25,000 plus disbursements, arguing the case should have been under Simplified Procedure and costs were disproportionate.

The court, applying Rule 57.01, found the action was complex and not suitable for Simplified Procedure, noting the Defendants made no settlement offer.

The court fixed costs at $100,000 plus HST and $14,988.85 in disbursements, payable by the Defendants.

The plaintiff brought a civil action against the police for damages arising from injuries sustained during the execution of a search warrant at his apartment.

The police utilized a dynamic entry to secure the premises, suspecting firearms were present.

The court found that the officers used excessive force when they struck the sleeping plaintiff in the face and repeatedly hit him while he was pinned to the floor.

The plaintiff was awarded $50,000 in general damages for physical and psychological injuries, and $3,231 in special damages, but claims for punitive and aggravated damages were dismissed.

The plaintiff brought a motion for an assessment of legal fees and disbursements following a settlement of all other claims in an action for malicious prosecution and false arrest against the Toronto Police Services Board and numerous officers.

The settlement agreement provided that the plaintiff's costs were to be assessed by a judge.

The court determined that costs should be fixed on a partial indemnity scale rather than assessed on a solicitor-and-client basis.

Applying the principle of proportionality, the court significantly reduced the plaintiff's claimed costs of $266,509.90, finding the time spent on discoveries and other steps disproportionate to the $175,000 settlement value.

Costs were fixed at $74,392.67.

The defendant bank brought a motion to remove the plaintiff's lawyer, arguing he would be a necessary witness at trial regarding his communications about an allegedly false incident report from a prior slip and fall action, and that he was in a conflict of interest.

The court applied the Mazinani factors and dismissed the motion, finding it was premature as discovery had not yet occurred and it was unclear if the lawyer's evidence would be significant.

The court also found no evidence to support the conflict of interest allegation.

The defendant was successful on a summary judgment motion dismissing the plaintiff's claim for damages and sought partial indemnity costs of $77,750.85.

The plaintiff argued the quantum was excessive and suggested $35,000.00.

The court reviewed the time dockets, hourly rates, and the complexity of the matter, finding the defendant's claimed rates reasonable.

The court fixed costs payable to the defendant at $70,313.19 inclusive of disbursements and taxes.

The Regional Municipality of York (the "Region") brought a motion for summary judgment to dismiss the claim of 2149629 Ontario Inc. ("214"). 214 sought damages for negligence and breach of contract, alleging that the Region's actions caused it to miss a deadline for registering a plan of subdivision, thereby incurring higher development charges.

The court found that 214 knew or ought to have known about the dewatering condition required for registration.

The court determined that the Region was not negligent, there was no principal/agency relationship between the Region and the Township of King, and the Region did not breach its contractual duty of good faith.

Furthermore, the court denied relief from forfeiture, concluding that 214 was not penalized but rather failed to receive a benefit by not meeting the agreement's conditions.

The motion for summary judgment was granted, and 214's claim was dismissed.

The plaintiff municipality brought a motion seeking a declaration that the defendant was in civil contempt of court for failing to comply with an earlier order requiring removal of a berm constructed on his property that allegedly caused flooding in a municipal drainage ditch.

The court reviewed the three-part test for civil contempt requiring a clear order, deliberate and wilful disobedience, and proof beyond a reasonable doubt.

While the evidence indicated that the berm had not been fully removed and flooding continued, the court was not satisfied that the breach was deliberate or wilful.

Instead of a contempt finding, the court ordered the defendant to provide access to the property for surveying to determine the remaining berm and to facilitate compliance with the prior order.

The plaintiff municipality brought a motion for an interlocutory mandatory order requiring the defendants to remove a berm constructed on their property adjacent to a municipal road.

The municipality argued the berm caused flooding in the road's drainage ditches, creating safety hazards and potential damage to the pavement structure, and blocked water flow to a provincially significant wetland.

The defendants claimed the flooding was caused by the municipality's own ditch maintenance work.

The court preferred the municipality's expert evidence, finding the berm caused the flooding and was located within the wetland setback in breach of conservation regulations.

The court held that the municipal ditch formed part of the 'highway' under the Municipal Act, 2001, and granted a statutory injunction and an injunction for public nuisance, ordering the defendants to remove the berm.

The defendant insurer moved to set aside a noting in default and default judgment obtained by the plaintiff in a claim for accidental death insurance benefits.

The court applied the test for setting aside default judgments, requiring prompt action, a reasonable explanation for the default, and an arguable defence on the merits.

The court found the motion was brought promptly and that the insurer had a plausible explanation for failing to defend, given lengthy periods of inactivity and communications suggesting litigation would not proceed imminently.

The insurer also demonstrated an arguable defence, including the possibility that the insured’s death was suicide or otherwise excluded under the policy.

Additionally, the court held that the action had been deemed dismissed as abandoned under Rule 48.15(6), rendering the default judgment irregular.

Following the dismissal of a civil action alleging racial and gender discrimination in a police investigation, the defendants sought costs.

Although the plaintiff subjectively believed he had been discriminated against and evidence revealed negligent and substandard police record-keeping, the court had found no discriminatory motive.

The plaintiff argued he was impecunious and sought costs in his favour due to the public importance of the issues.

The court rejected the claim of impecuniosity and applied the principles under Rule 57 and the guidance in Boucher to determine the appropriate award.

Costs were awarded to the defendants in the reduced amount of $120,000 all-inclusive.

The applicant lender sought declaratory relief confirming the validity and priority of its security interests under a general security agreement granted by the respondent corporations, including over precious metals and a cause of action assigned to a third party.

The assignee opposed the declaration, arguing that a security agreement should not permit a creditor to control litigation brought by the debtor against the creditor itself.

The court accepted that causes of action may fall within the definition of collateral under a general security agreement but emphasized that control of the litigation would be exercised by the court‑appointed receiver rather than the secured creditor.

In those circumstances, the court found no unfairness or absurdity in including the assigned cause of action within the secured collateral.

Declaratory relief was granted confirming that the cause of action formed part of the collateral subject to the security.

The plaintiffs sought court approval of a settlement agreement resolving complex litigation and related bankruptcy proceedings arising from the collapse of Lehman Brothers.

The dispute concerned ownership and recovery of investment fund assets held by the prime broker at the time of its insolvency, including securities subject to re-hypothecation and claims advanced in multiple jurisdictions.

The court considered the fairness and reasonableness of the settlement, including its impact on investors and the risks and delays associated with continued litigation and cross-border enforcement.

Relying on principles reflected in the Bankruptcy and Insolvency Act and the court’s jurisdiction under the Courts of Justice Act, the court concluded that the compromise was fair and reasonable.

The court approved the settlement and issued vesting orders in relation to assets conveyed under the agreement.