Douglas O. Smith

The plaintiff bank brought motions for an order amending the style of cause, summary judgment against one defendant, and default judgment against the other defendant.

The defendants had provided joint and several personal guarantees for corporate loans that went into default, leading to a receivership.

The court granted the amendment to the style of cause to include aliases.

The court granted summary judgment against the defending guarantor, finding no genuine issue requiring a trial, and granted default judgment against the noted-in-default guarantor based on deemed admissions and affidavit evidence.

Judgment was granted for over $3 million plus full indemnity costs.

The plaintiff brought an action for malicious prosecution and negligent investigation against the police defendants after criminal charges against him were stayed by the Crown.

The defendants moved for summary judgment, arguing the action was statute-barred because it was commenced more than two years after the stay was entered.

The plaintiff argued the limitation period did not begin until the one-year period for the Crown to recommence the stayed charges had expired.

The court held that a Crown stay constitutes a favourable termination of proceedings and the limitation clock begins to run on the day the stay is entered.

The action was dismissed as statute-barred.

The respondent, having successfully defended an appeal, sought costs of $17,818.44.

The appellant did not dispute the entitlement to costs but argued the quantum was excessive, noting he would have sought only $9,152.95 had he been successful.

The Court of Appeal agreed the requested amount was high given there was no oral hearing, and fixed the costs payable to the respondent at $9,000 inclusive of disbursements and HST.

The appellant, an independent agent for the respondent financial services company, appealed the dismissal of his application for an order requiring the respondent to pay service commissions.

The respondent had changed its policy to make service commissions dependent on new sales performance.

The Court of Appeal found no palpable and overriding error in the application judge's conclusion that the contract permitted the respondent to modify pay arrangements and impose minimum performance standards upon notice.

The appeal was dismissed.

Following a successful motion by the defendants to enforce a binding settlement, the defendants sought costs of the motion.

The defendants requested $5,000 on a partial indemnity basis.

The plaintiffs opposed, arguing financial hardship and seeking costs themselves.

The court found the defendants' request to be reasonable and modest, and fixed costs at $5,000 inclusive of fees, HST, and disbursements, payable if demanded.

The defendants brought a motion under Rule 49.09 to enforce a settlement agreement reached via email with the self-represented plaintiffs.

The plaintiffs argued the settlement was not binding because they had not signed a release, and alleged duress and unconscionability.

The court found that a binding agreement to dismiss the action without costs had been reached, and that a full and final release is an implied term of such a settlement.

Finding no evidence of duress or unconscionability, the court granted the motion and dismissed the action without costs.

The applicant, an independent financial advisor, brought an application to recover service commissions withheld by the respondent company.

The respondent had implemented a new policy making the payment of service commissions dependent on new sales performance.

The court interpreted the Financial Security Advisor Contract between the parties and found that, although service commissions were not explicitly listed in the compensation schedule, they were contemplated by the contract.

The court held that the clear and unambiguous wording of the contract allowed the respondent to modify or withdraw any established pay arrangement, including service commissions, for failure to meet minimum performance standards.

The application was dismissed.

The defendants were successful on a motion for summary judgment dismissing the plaintiff's action and sought costs on a partial indemnity scale.

The plaintiff opposed the quantum, arguing the evidentiary record on the motion was incomplete and the costs claimed were excessive.

The court rejected the plaintiff's arguments regarding the evidentiary record, noting the plaintiff was represented by counsel and chose not to file responding evidence.

The court found the defendants' claimed costs of $44,644.28 to be reasonable, proportionate, and within the range the plaintiff would reasonably expect to pay.

Costs were fixed in that amount.

The plaintiff, a criminal defence lawyer, sued the Halton Regional Police Service and several police officers for negligence after he was shot by a man who was under police surveillance.

The police defendants brought a motion for summary judgment, arguing they did not owe the plaintiff a private law duty of care.

The court granted summary judgment, dismissing the action, finding no special relationship of proximity existed between the police and the plaintiff that would give rise to such a duty.

The court emphasized that police duties are generally owed to the public as a whole, and the circumstances did not establish the plaintiff as part of a "narrow and distinct group of potential victims at risk from a specific threat" before the shooting.

This endorsement addresses the issue of costs following the dismissal of the plaintiffs' action for damages arising from an arrest.

The defendants, as the successful parties, sought costs.

The plaintiffs argued against a cost award, citing divided success, public interest litigation, and access to justice concerns.

The court rejected these arguments, affirming the general principle that costs follow the event.

While finding the defendants entitled to costs, the court declined to impose joint and several liability on both plaintiffs, instead apportioning costs separately.

The total amount of costs awarded was significantly reduced from the amount sought by the defendants, emphasizing proportionality and reasonableness, particularly given the case's initial designation as a simplified procedure action.

The plaintiff brought a civil action against the Toronto Police Services Board and individual officers, alleging they used excessive force during his arrest and were negligent in his subsequent detention.

The plaintiff claimed he was severely beaten without warning, while the police testified they executed a controlled take-down after he resisted arrest.

The court found the police officers' evidence credible and reliable, concluding that the force used was necessary, justified, and not excessive under section 25(1) of the Criminal Code.

The court also dismissed the plaintiff's claims of negligence and breach of fiduciary duty, ultimately dismissing the action in its entirety.

Following the dismissal of the plaintiff's action against the Toronto Police Services Board and two officers for alleged gratuitous assault and conspiracy, the defendants sought costs of $77,906.58 on a partial indemnity scale.

The court considered the complexity of the issues, the significant monetary claim, the importance of the matter to the officers, and the self-represented plaintiff's limited ability to pay.

Balancing these factors, the court fixed costs at $50,000 inclusive, payable by the plaintiff.

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 moving parties sought leave to appeal a decision dismissing their motion for a mandatory injunction to compel the respondents to provide fleet insurance for their rental vehicles.

Fresh evidence revealed that the moving parties had sold their fleet, rendering the motion moot.

The court dismissed the motion for leave to appeal on the basis of mootness, and alternatively on the merits, finding no conflicting decisions or reason to doubt the correctness of the motion judge's decision.

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.