Elizabeth C. Sheard

The applicants, property owners along Erie Shore Drive, appealed a decision of the Acting Drainage Referee regarding preliminary issues in their application for damages against the municipality for failing to maintain and repair the Burk Drainage Works.

The municipality cross-appealed the Referee's finding that section 79 of the Drainage Act is a strict liability provision.

The Divisional Court dismissed both appeals, upholding the Referee's findings that the applicants' initial notice was insufficient, that damages are limited to those occurring 45 days after proper notice is given, that historical seawalls had been lawfully replaced rather than abandoned, and that section 79 imposes strict liability without requiring proof of common law injurious affection.

This costs decision follows a lengthy guardianship and estate litigation between Edi Ferritto and her brother, Alfredo Ferritto, regarding their mother Lucia Ferritto.

The court reviews the procedural history, the parties' conduct, and the applicable legal principles for awarding costs.

Edi Ferritto, as the successful party, is awarded substantial indemnity costs for the trial and partial indemnity costs for the applications and motions, with certain reductions.

The decision details the calculation of fees and disbursements, and the rationale for the scale of costs awarded.

The plaintiffs, a commercial landlord and property owner, brought an action against a tenant and its guarantor for damages arising from the breach and repudiation of a ten-year commercial lease.

The tenant had abandoned the premises and delivered a notice of termination, claiming the lease was frustrated by COVID-19 restrictions and that the landlord failed to timely complete agreed-upon improvements.

The court found that the lease commenced on March 1, 2020, its start date was not conditional on the completion of landlord improvements, and the tenant had repudiated the contract.

Consequently, the court dismissed the tenant's counterclaim for misrepresentation and rescission, and awarded the plaintiffs damages for lost rent, mitigation costs, and the diminution of the property's market value.

This costs decision follows a summary judgment motion by Royal Bank of Canada (RBC) against 1108135 Ontario Inc. operating as Trends Décor and Roger Alonzo.

The court apportioned costs after finding the corporate defendant liable for both debts and Mr. Alonzo liable only for the Business Operating Line.

The court fixed costs at $11,475.35, payable jointly and severally by the defendants, after considering the parties’ relative success and the reasonableness of the costs claimed.

The plaintiff, Royal Bank of Canada, moved for summary judgment against the defendants regarding a Business Operating Line (BOL) and a Visa Credit Card.

The corporate defendant admitted liability, but Roger Alonzo disputed personal liability.

The court found Mr. Alonzo personally liable for the BOL debt but not for the Visa debt, as the evidence did not establish that he agreed to personal liability for the Visa.

The court granted judgment accordingly and addressed costs based on the mixed outcome.

The decision addresses a motion by Jigar Vijaykumar Patel to extend the time for delivering costs submissions and the determination of costs following an unsuccessful motion to set aside a prior order.

The court grants the extension without costs and fixes costs of the motion on a substantial indemnity basis, finding that Jigar’s conduct, while not egregious, merited an elevated scale due to an attempt to mislead the court.

This costs decision follows the dismissal of an application by 2811230 Ontario Limited to delete an Order to Comply from title to its property.

The court awards elevated costs to the City of Niagara Falls, finding the application was without merit and brought for an improper motive, and that the applicant's conduct unnecessarily lengthened the proceeding.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing her application for lack of jurisdiction.

The applicant alleged discrimination based on creed after her employment was terminated for failing to comply with a mandatory COVID-19 vaccination policy.

The Divisional Court held that the standard of review was reasonableness, found no denial of procedural fairness, and concluded that the Tribunal's determination that the applicant's singular belief against the vaccine did not constitute a 'creed' under the Human Rights Code was reasonable.

The application for judicial review was dismissed.

This costs decision follows an application under the Partition Act for the sale of two jointly owned properties.

The applicant, Tara-Lee Daniel, sought and was granted an order for the sale of the properties, with the only contested issue at the hearing being the terms of sale for a cottage property.

The court awarded Daniel full indemnity costs and awarded the intervening neighbours partial costs, finding the respondents' opposition to be without merit and their conduct to have unnecessarily increased costs.

The court considered whether an Agreement of Purchase and Sale (APS) for a commercial property remained valid after the buyer failed to waive conditions by the deadline.

The buyer argued the seller had waived strict reliance on deadlines and sought specific performance.

The seller moved for summary judgment, asserting the APS had terminated automatically.

The court found the APS terminated on its terms when the buyer failed to provide the waiver, and that the seller had not waived its rights.

The seller’s summary judgment motion was granted, and the buyer’s request for specific performance was dismissed.

The self-represented applicant failed to appear for the hearing of his appeal, having previously been denied an adjournment.

The Divisional Court panel noted that the order appealed from was interlocutory, requiring leave to appeal, which the applicant had not obtained.

The court directed the Registrar to issue a Notice under Rule 2.1 of the Rules of Civil Procedure, advising the applicant that the appeal appeared frivolous, vexatious, or an abuse of process.

The applicant was given twenty days to provide written submissions in response.

The appellant veterinarian appealed three separate decisions of the Discipline Committee of the College of Veterinarians of Ontario finding him guilty of professional misconduct and imposing penalties including suspensions and costs.

The appellant argued that the proceedings should have been dismissed for abuse of process due to delay and procedural irregularities, that the College's expert evidence should not have been admitted, and that the penalties were clearly unfit.

The Divisional Court dismissed all three appeals, finding no palpable and overriding errors in the Committee's factual findings and no errors of law.

The Court held that the statutory referral process was properly followed, the delay was not inordinate and caused no prejudice, the expert evidence was properly admitted, and the penalties and costs were within the Committee's reasonable discretion.

This costs decision addresses the aftermath of a motion/application in which the applicants sought to convert an application to an action, amend parties, and obtain interim relief regarding property.

The court declined to fix costs for the entire application, limiting its award to the motion before it.

The Canadian Imperial Bank of Commerce (CIBC) was awarded partial indemnity costs, while no costs were awarded as between the applicants and the Quddus respondents due to mixed success.

The decision reviews the principles governing costs, including the principle of indemnity, reasonableness, and the impact of consent adjournments.

The applicant, Linda Kulchycki, sought to reinstate a 2008 power of attorney and codicil executed by her mother, Mary Kulchycki, and to set aside new powers of attorney and a will executed by Mary in 2020.

Linda alleged conflicts of interest and improper conduct by the respondents, Nancy and Diana Kulchycki, and the lawyer involved in the 2020 documents.

The court found that Linda provided no evidence of incapacity, undue influence, or mismanagement, and that a will challenge is premature while the testator is alive.

The application was dismissed, and costs were awarded against Linda.

This costs decision follows the successful application by Deborah Lynn Ferris for the removal of her brother, Christopher Ferris, as co-estate trustee of their late father's estate.

The court reviews the parties' submissions and the applicable legal principles, ultimately awarding full indemnity costs to the applicant, with a blended order requiring Christopher Ferris to pay 75% of the applicant's costs and the balance to be paid from the estate.

The court finds Christopher Ferris's conduct to be worthy of sanction and characterizes it as reprehensible and outrageous.

This is a costs decision following a trial regarding payment of four invoices for accounting services.

The plaintiff, Bazar McBean LLP, succeeded in obtaining judgment for three of the four invoices against the corporate defendant and its principal, Brian Alger.

The court awarded costs to the plaintiff but reduced the amount sought, reflecting the plaintiff’s lack of success on its interest claim and the defendants’ partial success.

The decision discusses the application of Rule 57.01 of the Rules of Civil Procedure and the impact of settlement offers.

The court considered an application by Tara-Lee Daniel for the partition and sale of two properties co-owned with Michael Angelo Rizzo, following the end of their relationship.

The main issue was whether the sale order for the Trent Lakes property should require any purchaser to cooperate in granting a right-of-way to neighbouring properties, as set out in a prior agreement (Schedule "C").

The court found that including this term was fair and necessary to avoid uncertainty and facilitate the sale, and granted the order for sale with the requested provision.

The applicant, 2811230 Ontario Limited, sought an order deleting the registration of an Order to Comply (OTC) from title to its property in Niagara Falls, arguing that the OTC prevented sale or refinancing.

The City opposed, maintaining the OTC was properly registered to notify the public of unpermitted construction.

The court denied the applicant’s request for an adjournment and ultimately dismissed the application, finding that the OTC remained valid and that its registration served the public interest in consumer protection and safety.

The court held that the applicant’s objective was to conceal the OTC from prospective buyers or mortgagees, contrary to the Act’s purpose.

The plaintiff, Bazar McBean LLP, sought judgment against the defendants, 1583057 Ontario Inc. (operating as The Pop Shoppe) and its principal Brian Alger, for unpaid accounting invoices.

The court considered whether the claims were statute-barred, the entitlement to payment under the invoices, Mr. Alger’s personal liability, and the entitlement to interest.

The court found that only one invoice was statute-barred, that the plaintiff was entitled to payment for the remaining invoices (with a minor reduction), that Mr. Alger was personally liable, and that interest was to be calculated at the Courts of Justice Act rate, not the contractual rate, due to the parties’ conduct.

The applicant, a migrant farm worker, sought judicial review of decisions by the Workplace Safety and Insurance Appeals Tribunal denying his request for an extension of time to appeal a 2008 decision denying his WSIB claim.

The applicant argued the tribunal overlooked his diligence, miscalculated the delay, and failed to consider his vulnerability as a migrant worker.

The Divisional Court dismissed the application, finding the tribunal's decisions were reasonable, properly applied a holistic approach to the delay, and adequately considered the applicant's circumstances.