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.

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.

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 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.