Eric Martin Appotive

The defendant, Co-operators General Insurance Company, brought a motion for partial summary judgment and security for costs.

The plaintiff, 1923731 Ontario Ltd., had a commercial plaza damaged by fire, and the loss amount was determined by an appraisal process under the Insurance Act.

The plaintiff subsequently sued for additional damages, including those already appraised, and for bad faith.

The court granted partial summary judgment, dismissing the plaintiff's claim for damages already determined by the binding appraisal award, emphasizing that such awards can only be challenged via judicial review.

The court also ordered the plaintiff to post security for costs, finding insufficient assets to cover potential adverse cost awards.

The appellant appealed a judgment of the Superior Court of Justice determining that fencing and a retaining wall along Greenfield Avenue in Ottawa constituted "Shared Property" under a Co-Tenancy Agreement dated December 15, 1998, governing a townhouse development known as Kings Landing.

The Court of Appeal upheld the lower court's contractual interpretation, finding no palpable and overriding error and no extricable question of law.

The application judge had correctly articulated and applied the principles of contractual interpretation and read the contract as a whole.

The appeal was dismissed with costs fixed at $20,500 including HST and disbursements.

This decision addresses costs following an application concerning a Co-Tenancy Agreement.

The Applicants sought declarations regarding 'Shared Property' and alleged bad faith by the Co-Tenancy Committee.

The court previously ruled against the Applicants on both issues.

The Respondents sought substantial indemnity costs, while the Applicants and Intervenor argued for reduced or no costs, citing an early offer to settle and proportionality.

The court fixed the Respondents' total costs at $145,000, apportioning $28,000 to the Intervenor and $117,000 to the Applicants, based on partial indemnity for the interpretation issue and substantial indemnity for the bad faith claim due to the Applicants' conduct.

The applicants, owners of a townhouse unit in a co-tenancy development, sought declarations regarding a Co-Tenancy Agreement, specifically whether a perimeter fence and retaining wall were 'Shared Property' and whether the Co-Tenancy Committee acted in bad faith.

The court found that the Co-Tenancy Agreement was ambiguous but, based on the factual matrix and subsequent conduct of the parties, the fence and retaining wall were intended to be Shared Property.

The court also dismissed the applicants' allegations of bad faith against the committee members, finding that the committee acted in good faith and consistently sought legal advice.

This costs endorsement concerned an adjourned application hearing where the moving parties sought a second adjournment because of counsel's health issue.

The court held that even absent fault, a party responsible for an adjournment may still be ordered to pay costs thrown away, and declined to follow authority suggesting unforeseen illness falls into a no-costs category.

Applying the established framework for adjournment costs, the court accepted that substantial preparation would need to be repeated given the extensive record and multiple affidavits.

The court awarded thrown-away costs to both the responding parties and the intervener.

The plaintiff brought a motion under Rule 39.03 to examine the defendant, a lawyer who formerly represented the other defendants, as a witness before the hearing of the defendants' pending motion for costs.

The plaintiff sought to question the defendant regarding the timing and quantum of his legal account, which was submitted as evidence in the costs motion.

The court granted the motion, finding the evidence relevant and concluding that the defendants failed to prove the examination would be an abuse of process.

Following the discontinuance of the action, the defendants brought a motion for costs.

In response, the plaintiff filed an affidavit containing correspondence regarding settlement offers.

The defendants brought a motion to strike these paragraphs, arguing they were protected by settlement privilege.

The court dismissed the motion to strike, holding that under Rule 57.01(1), written offers to settle are explicitly contemplated as admissible and relevant factors to be considered on a motion for costs.

The moving parties sought summary judgment dismissing a counterclaim alleging misrepresentation, breach of contract, and intentional interference with economic relations on the basis that it was barred by the two‑year limitation period under the Limitations Act, 2002.

The counterclaim asserted claims virtually identical to those raised by the respondent in an earlier action that had been dismissed for lack of jurisdiction following enforcement of a forum selection clause by the Supreme Court of Canada.

The court held that the Limitations Act, 2002 is exhaustive and does not permit courts to decline to apply statutory limitation periods based on special circumstances.

As the claims were discovered years earlier and no statutory exception applied, the counterclaim was statute‑barred.

The court granted summary judgment striking the counterclaim and ordered the respondent to pay funds into court pending resolution of an indemnity claim, failing which judgment would issue.

A defendant against whom the action had been discontinued brought a motion under Rule 23.05 seeking costs of the action and delivery of a release.

The motion was brought more than 14 months after the notice of discontinuance, well beyond the 30‑day deadline prescribed by the Rules of Civil Procedure.

The court held that although the deadline may be extended under Rule 3.02, the moving party must provide a satisfactory explanation for the delay and demonstrate absence of prejudice.

While the responding plaintiffs would not have been prejudiced, the moving party provided no explanation for the delay.

The court also found there had been no agreement requiring delivery of a release because the parties had not reached a meeting of the minds on the terms of settlement.

The request for an extension of time was refused and the motion dismissed, with costs awarded to the plaintiffs.

The defendant brought a motion seeking security for costs under Rule 56.01(1)(d) of the Rules of Civil Procedure in an action arising from a construction subcontract dispute.

The plaintiff corporation claimed damages for breach of contract after allegedly being terminated and not paid for work performed, while the defendant alleged defective work and asserted significant back-charges and set-off.

The court held that although the plaintiff asserted impecuniosity, the evidentiary record did not establish true impecuniosity because it failed to address potential financial resources of its principal and other potential beneficiaries of the litigation.

The court also found that the merits of the claim appeared difficult and that the interests of justice favoured protecting the defendant from unrecoverable costs.

Security for costs was therefore ordered in staged payments totaling $33,000.

The plaintiff contractor brought a motion to amend its statement of claim to remove references to the Construction Lien Act and proceed on a breach of contract basis after its construction lien had previously been vacated as out of time.

The defendants opposed the amendment and brought a cross-motion seeking dismissal of the action for delay under Rule 24.01 of the Rules of Civil Procedure.

The court held that the original statement of claim already implicitly advanced a contractual claim and that the order vacating the lien did not determine the contractual issues.

Although the action had experienced significant delay and periods of inactivity, the court found the delay sufficiently explained and not prejudicial to a fair trial.

The plaintiff was permitted to amend the pleadings and the defendants’ cross-motion for dismissal was dismissed.

The defendants brought a motion for security for costs against the plaintiff, an American corporation with no assets in Ontario.

The parties were involved in a contractual dispute over a plant relocation contract.

The court found that the plaintiff failed to establish that it had sufficient assets in a reciprocating jurisdiction or that it was impecunious.

The court ordered the plaintiff to pay $5,000 into court as a partial payment of security for costs, with the issue of any additional amount to be decided by the referee.

Following summary judgment in favour of a mortgagee on a first mortgage, the court determined costs arising from the motion and the broader action.

The mortgagee sought substantial costs against the mortgagors and guarantor, while the defendants sought costs against a second mortgagee whose summary judgment motion dismissing their third party claims failed.

The court held that the mortgagee was entitled to costs but found the amounts claimed excessive and reduced them, allocating portions jointly and severally among the defendants.

The court also found the second mortgagee acted unreasonably in bringing a summary judgment motion involving credibility issues and ordered substantial indemnity costs in favour of the guarantor.

Requests to stay enforcement of the summary judgment and costs orders pending related insurance litigation were denied.

The plaintiff, Scotia Mortgage Corporation, brought a motion for summary judgment against the mortgagors and the guarantor for default under a first mortgage.

The property had been destroyed by fire, and insurance proceeds were insufficient to cover the mortgage debt due to a rebuilding clause.

The guarantor defended on grounds including non es factum and material alteration of the mortgage.

The court granted summary judgment to the plaintiff, finding the guarantor's defences without merit.

A second mortgagee, named as a third party, also moved for summary judgment to dismiss claims that he was liable as a mortgagee in possession.

The court dismissed the second mortgagee's motion, finding that whether he had assumed control of the property was a genuine issue requiring a trial.

The Court considered whether defendants could seek dismissal under Ontario Rule 21.01(3)(a) based on arbitration and forum selection clauses after delivering a statement of defence.

It held that a defence pleading the foreign forum clause does not itself bar a subsequent Rule 21 motion, provided the motion is brought promptly.

Applying the strong-cause framework for displacing contractual forum clauses, the Court found no basis to refuse enforcement.

The appeal was dismissed with costs.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The respondents were awarded costs on a partial indemnity basis.

The League respondents were awarded $15,000, the City of Ottawa was awarded $5,000, and Miles Wolff was awarded $5,000, all inclusive of disbursements and taxes.

The appellants, owners of a professional baseball team, sued the Can-Am League, its principals, and the City of Ottawa in Ontario after the League terminated their membership and drew down a letter of credit.

The agreements between the parties contained choice of forum and arbitration clauses designating North Carolina.

The defendants successfully moved to dismiss the action for lack of jurisdiction.

On appeal, the appellants argued the defendants attorned to Ontario's jurisdiction by filing a statement of defence, and that fundamental breach precluded reliance on the clauses.

The Court of Appeal dismissed the appeal, holding that the appellants failed to show strong cause to displace the choice of forum clause, and that attornment does not prevent a court from declining to exercise its jurisdiction.

The Registrar of the Alcohol and Gaming Commission of Ontario issued a Notice of Proposal to suspend the licensee's liquor licence.

The parties submitted an Agreed Statement of Facts admitting that five intoxicated patrons were present in the licensed premises, constituting a breach of s. 45(1) of O. Reg. 719/90.

The Board accepted the joint submission on disposition and ordered a 10-day suspension of the liquor licence.

The insured was injured in a motor vehicle accident and claimed the cost of a home whirlpool spa as a medical expense.

The insurer denied the claim, relying on a Designated Assessment Centre report.

The arbitrator denied the cost of the specific spa purchased but ordered the insurer to pay the reasonable cost of a Jacuzzi-type bathtub.

The insurer appealed, arguing the arbitrator exceeded her jurisdiction and erred in her treatment of the medical certificate and DAC report.

The Director's Delegate dismissed the appeal, finding the arbitrator's order reasonably arose from the evidence and submissions, and that there was sufficient evidence to support her findings.