Eric K. Gillespie

This costs endorsement addresses the fixing of costs following the dismissal of the plaintiff’s action for delay.

The court reviews the parties’ submissions on quantum, the applicable legal principles under the Courts of Justice Act and Rules of Civil Procedure, and the reasonableness of the fees claimed.

The court ultimately fixes costs in favour of the defendant Town of Bracebridge, finding the amounts sought to be fair and proportionate given the complexity and history of the litigation.

The Court of Appeal for Ontario dismissed Windrift Adventures Incorporated’s appeal from the dismissal of its defamation action under s. 137.1 of the Courts of Justice Act.

The court found no error in the motion judge’s conclusion that the action lacked substantial merit and that the harm suffered was not sufficiently serious to outweigh the public interest in protecting the respondents’ expression.

The court also rejected the appellant’s argument that a finding of “abuse” is required for dismissal under s. 137.1, clarifying that the test remains as set out in Pointes Protection Association.

The Court of Appeal for Ontario considered whether the Rebuilding Ontario Place Act, 2023 (ROPA) violates section 96 of the Constitution Act, 1867, and whether a public trust doctrine exists in Canadian law.

The appellant, Ontario Place Protectors, challenged the constitutionality of ROPA, arguing it insulated state action from judicial scrutiny and breached public trust.

The Court found the application judge erred in denying public interest standing but held that ROPA does not contravene section 96, as it preserves judicial review and does not usurp the core jurisdiction of the superior courts.

The Court also found no basis for a public trust doctrine in Canadian law.

The appeal was dismissed.

The applicant challenged provisions of the Rebuilding Ontario Place Act, 2023 (ROPA), arguing that s. 17(2) violated s. 96 of the Constitution Act, 1867 by impermissibly removing superior court jurisdiction and access to remedies, and that other sections (ss. 9, 10, 11, 17(2)) breached public trust.

The court dismissed the application, finding that ROPA did not preclude judicial review and that the specific immunity granted was within legislative authority and did not "maim" the superior courts' core jurisdiction.

The court also rejected the public trust doctrine as a basis for striking down legislation or for a declaration without practical utility, and found the applicant lacked sufficient evidence for public interest standing.

The applicant sought a declaration that the proposed use of a property as a municipal shelter was not permitted under Toronto's zoning by-laws, arguing it was not a permitted use and that a proposed patio was prohibited.

The respondents asserted the matter should have been brought as an appeal under the Building Code Act, 1992, and that the intended use was permitted.

The court found the proceeding was properly an appeal of the chief building official's decision, not a Rule 14 application.

The court affirmed the chief building official's decision, finding no error in the determination that the shelter use was permitted and that the patio issue was premature as no final decision had been made on it.

The applicants brought a motion for a stay of a Divisional Court order, pending determination of their motion for leave to appeal.

The Divisional Court had dismissed their judicial review of an Animal Care Board decision approving costs for animal care.

The applicants sought the stay to prevent forfeiture of animals due to unpaid accounts.

The Court of Appeal applied the RJR-MacDonald test for stays, combined with principles for leave to appeal from Sault Dock Co. Ltd. The court found no serious issue to be tried, no irreparable harm (as the animals had already been forfeited), and that the balance of convenience did not favour a stay.

The motion was dismissed, and costs were awarded to the respondent.

The defendants, including CTV and several journalists, brought a motion under section 137.1 of the Courts of Justice Act to dismiss the plaintiff's defamation action arising from a W5 investigative report on dog sledding operations.

The court granted the motion, finding that the expression related to a matter of public interest.

The plaintiff failed to establish that its defamation claim had substantial merit, as the impugned broadcasts did not identify the plaintiff or lacked essential elements of defamation.

Furthermore, the plaintiff could not show that the defendants lacked valid defences of justification, fair comment, and responsible communication, nor that the harm suffered outweighed the public interest in protecting the expression.

The appellants sought to consolidate two leave to appeal proceedings before the Court of Appeal, arising from regulatory action by the Chief Animal Welfare Inspector concerning sled dogs.

The first leave application related to the legality of dog removal and compliance orders, while the second concerned a statement of account for dog care costs.

The court applied Rule 6.01(1) of the Rules of Civil Procedure, finding a common factual origin but distinct legal questions.

The motion judge dismissed the consolidation request, concluding that the balance of convenience did not favour consolidation, as there was little efficiency to be gained in written leave applications and the potential prejudice to the respondent outweighed marginal benefits.

The representative plaintiffs in two class actions against the Toronto Police Services Board for wrongful arrest and detention during the 2010 G20 Summit sought court approval for a proposed settlement and class counsel fees.

The settlement included up to $16.5 million in financial compensation, a public acknowledgement of wrongdoing, commitments to reform policing of public demonstrations, and expungement of arrest records.

The court found the settlement to be fair, reasonable, and in the best interests of the class, noting the significant non-monetary components and the risks of proceeding to trial.

The court also approved class counsel's legal fees, which amounted to approximately 28 percent of the recovery, as fair and reasonable.

The third party, Gregory Cook, sought costs of a dismissed motion for interim costs brought by the defendant David Lawrence Denomme, as trustee of the estate of Daniel Thomas Denomme.

The court reviewed the third party's costs outline, found the time expended and partial indemnity hourly rates reasonable, and fixed costs to be paid by the estate trustee to the third party.

Homeowners appealed from a motion judge's order dismissing their motion for a declaration that the respondents breached a Minutes of Settlement and granting the respondents declaratory relief enforcing the Minutes of Settlement.

The motion judge found that the respondents had complied with the Minutes of Settlement based on evidence that the work had been completed, including HVAC work, plumbing obligations, and permit closures.

The appellants advanced numerous grounds of appeal, all of which were dismissed.

The applicants brought an application under section 83 of the Municipal Elections Act to declare the 2018 municipal election in Lambton Shores invalid.

The applicants alleged nine distinct irregularities, primarily focusing on the municipality's exclusive use of internet and telephone voting, the removal of names from the voters' list, and privacy concerns.

The Superior Court of Justice dismissed the application, finding no evidence of any irregularities that led to the disenfranchisement of eligible voters or the enfranchisement of ineligible voters.

The court concluded that the municipality complied with the Act and that the applicants' complaints stemmed from a personal distrust of electronic voting rather than actionable statutory breaches.

The Radford defendants brought a motion to set aside a noting of pleadings closed, with the plaintiffs bringing a cross-motion for default judgment, stemming from a real estate transaction involving soil contamination and an undertaking.

The court granted the defendants' motion, finding they had a credible intent to defend the action for amounts exceeding a $13,000 holdback, based on a reasonable, albeit mistaken, belief about their liability cap.

The court applied the Turner's Garage v. Shell test, emphasizing the full context and factual matrix, and found arguable defenses and no significant prejudice to the plaintiffs.

The plaintiffs and defendants entered into Minutes of Settlement to resolve a dispute over the construction of a residence.

The plaintiffs subsequently brought a motion for summary judgment, alleging the defendants breached the settlement terms regarding electrical, plumbing, HVAC, and roofing work, and sought damages.

The defendants brought a cross-motion to enforce the settlement, arguing they had fully complied.

The court reviewed the evidence and found that the defendants had completed all required work to the plaintiffs' satisfaction and that the settlement funds had been properly released.

The court dismissed the plaintiffs' motion, granted the defendants' motion to enforce the settlement, and dismissed the underlying action and counterclaim.

The applicants sought judicial review of the City of Guelph's decision to replace a one-lane heritage bridge with a two-lane bridge on Niska Road, alleging contravention of section 24 of the Planning Act and non-conformity with the City's Official Plan and Neighbourhood Traffic Management Policy.

The application also alleged bad faith.

The court, applying a reasonableness standard of review, dismissed the application, finding that the City's interpretation and application of its policies were not unreasonable and that the process was carried out according to the rule of law.

Following an application regarding the interpretation of a municipal zoning by-law and legal non-conforming use, the parties made written submissions on costs.

The applicant, a public interest litigant, had partial success but the main issue was decided in favour of the respondents.

The court awarded partial indemnity costs of $40,000 to the respondent Picton Terminals.

The court declined to award costs to the respondent County, finding that its failure to recognize the trans-shipment use in its 2006 zoning by-law generated the uncertainty that led to the application, and recognizing the applicant as a public interest litigant.

An appeal from a Divisional Court decision upholding a Tribunal award of damages to a farm equipment dealer against a manufacturer/distributor for improper non-renewal of a dealership agreement.

The core issue concerned the retrospective application of Ontario Regulation 123/06 (Dealership Agreements Regulation) to an existing dealership agreement and the proper interpretation of the mandatory renewal provisions.

The manufacturer provided notice of non-renewal under the original agreement terms, but the Tribunal found this non-compliant with the Regulation's mandatory process requiring disclosure of all reasons for non-renewal and an opportunity for the dealer to respond.

The Court of Appeal upheld the Tribunal's liability findings and damages award, dismissed the manufacturer's appeal, and allowed the dealer's cross-appeal on costs by restoring the Tribunal's costs award that had been quashed by the Divisional Court.

The Alliance to Protect Prince Edward County (APPEC) sought a declaration that a Feed-In-Tariff (FIT) Contract between the Independent Electricity System Operator (IESO) and WPD White Pines Wind Incorporated (White Pines) was null and void, arguing White Pines failed to meet contractual capacity requirements.

APPEC also raised issues of legitimate expectations and negligent misrepresentation by IESO.

The court dismissed APPEC's application, finding that the doctrine of legitimate expectations did not apply as it creates procedural, not substantive, rights, and APPEC was not a party to the contract.

Furthermore, no special relationship existed to support a claim of negligent misrepresentation, and IESO and White Pines properly amended their contract in accordance with the FIT Rules and the Environmental Review Tribunal's decision.

The applicant sought a stay of a Renewable Energy Approval pending a motion for leave to appeal from a Divisional Court order dismissing its application for judicial review.

The Divisional Court had found that the Ministry's letter regarding construction compliance was not a reviewable statutory power of decision, and that the applicant was attempting to disguise a challenge to the REA itself.

The Court of Appeal addressed the jurisdictional question of whether the Divisional Court's decision could be reviewed by the Court of Appeal or only by a panel of the Divisional Court under section 21(5) of the Courts of Justice Act.

The Court held that the panel review process applies and that the applicant must exhaust the Divisional Court's remedial jurisdiction before appealing to the Court of Appeal.

The applicant, representing local ratepayers, brought an application to interpret a municipal zoning by-law, arguing that a deep water port facility's trans-shipment operations contravened the by-law.

The respondents argued the operations were protected as a legal non-conforming use.

The court interpreted the historical zoning by-laws and applied the framework for pre-existing uses, finding that the general historic use of the property for trans-shipment of bulk commodities had not fundamentally changed.

The court held that the current operations constituted a reasonable expansion of earlier activities and remained protected as a legal non-conforming use.