Eric O. Gionet

This endorsement addresses the costs of an unsuccessful motion for summary judgment brought by the Plaintiffs against the Defendant David Ryan.

The Defendant sought partial indemnity costs of over $100,000.

The Plaintiffs argued for costs to be reserved to the trial judge or fixed at $25,000, asserting that much of the work done for the motion would be reusable at trial.

The court found that the Plaintiffs should have realized the case was not suitable for summary judgment and that a significant portion of the work would not be reusable.

The court awarded the Defendant $60,000 in all-inclusive costs, payable within 30 days, but reserved the issue of expert report disbursements to the trial judge, acknowledging their potential reusability.

The plaintiffs, J.M.L. Holding Corporation and Gary Muchula, sought summary judgment against their former real estate solicitor, David Ryan, alleging professional negligence.

They claimed Mr. Ryan's conduct led to the erroneous sale of a waterfront property they did not intend to sell, seeking $550,000 in damages.

The court dismissed the motion, finding that the case presented genuine issues requiring a trial, including significant credibility and reliability issues between the parties, conflicting expert opinions on the standard of care and damages, and an incomplete evidentiary record, particularly regarding the buyer's perspective and the plaintiffs' intentions for the property.

The appellant appealed the dismissal of her motion for leave to amend her statement of claim seeking Long-Term Disability (LTD) benefits and damages.

The motion judge denied leave, finding the proposed amendments sought to withdraw an admission regarding the timely filing of an LTD benefits application and to add a statute-barred request for relief from forfeiture.

The Court of Appeal found the motion judge erred in concluding the amendments withdrew a factual admission, clarifying that the appellant's factual admission remained, and the amendments merely provided particulars and sought an alternative legal conclusion (relief from forfeiture) arising from the same facts.

The Court also held that the request for relief from forfeiture was not a new, statute-barred claim.

The appeal was allowed, and leave to amend was granted.

The moving party, a residential property owner, brought a motion under section 47 of the Construction Lien Act to discharge two construction liens registered against her property by a subcontractor and an equipment rental company.

The moving party argued the liens were out of time under the 45-day preservation deadline of the old Construction Lien Act.

The court dismissed the motion, finding triable issues regarding whether the old Act or the new Construction Act (with a 60-day deadline) applied, and when the lien claimants last supplied services and materials to the improvement.

The appellant, a mortgagee, appealed a motion judge's decision that granted priority to construction lien claimants over his registered third mortgage.

The Court of Appeal dismissed the appeal, affirming that the advances made by the mortgagee did not fall within the exceptions of s. 78(2) or s. 78(6) of the Construction Act.

The court held that advances must be "made in respect of" the mortgage and the intention to secure financing must operate prospectively to gain priority over liens.

The decision reinforces the general principle of priority for lien claimants and the onus on mortgagees to clearly fall within statutory exceptions.

Following the dismissal of the plaintiff's wrongful dismissal action, the successful defendant sought costs of $210,000, arguing for substantial indemnity costs from the date of its $25,000 offer to settle.

The plaintiff argued for no costs due to impecuniosity or a reduced amount due to divided success and the reasonableness of her claim.

The court found insufficient evidence of impecuniosity and held that the defendant's offer, being only slightly above nuisance value, did not warrant elevated costs under Rule 49.10(2).

The court awarded the defendant partial indemnity costs fixed at $143,978.67, noting the need to balance the successful party's entitlement with access to justice concerns.

The plaintiff, a long-term executive director of a not-for-profit chamber of commerce, sued for wrongful dismissal after being terminated for cause.

The employer alleged the plaintiff breached her fiduciary duties through various financial irregularities, including altering a banking document, taking unauthorized vacation pay, and allowing an unauthorized pay raise to continue.

The court found that the plaintiff was a fiduciary and that her cumulative misconduct and poor judgment irredeemably fractured the employer's trust.

The court concluded the employer had just cause for termination and dismissed the plaintiff's claims for notice, aggravated damages, and punitive damages.

During a wrongful dismissal trial, the plaintiff objected to the defendant adducing evidence of financial irregularities, arguing the defendant breached the rule in Browne and Dunn by failing to confront her with this evidence during cross-examination.

The court dismissed the objection, finding the defendant had generally met its obligations as the plaintiff was well aware of the allegations from pleadings and discovery.

The court held that the appropriate remedy for any specific transactions not put to the plaintiff would be to recall her to testify, rather than excluding the defendant's evidence.

The respondent sold his funeral home business to the appellant and was retained as general manager under a ten-year fixed-term contract.

Following a deterioration in the relationship, the appellant engaged in a course of conduct that included removing the respondent's company vehicle, tracking his time, and changing the locks.

The respondent went on medical leave due to depression and anxiety caused by the appellant's conduct and eventually sued for constructive dismissal.

The trial judge found the respondent was constructively dismissed and awarded damages for the remainder of the contract.

The Court of Appeal dismissed the employer's appeal, finding no error in the trial judge's conclusion that the respondent had not condoned the conduct despite the delay in bringing the action, nor in the calculation of damages.

The receiver brought a motion for directions to determine whether an appeal from a priority dispute order in a receivership lies to the Court of Appeal under the Bankruptcy and Insolvency Act or to the Divisional Court under the Construction Act.

The Court of Appeal held that because the motion judge's order was granted in reliance on jurisdiction under the Bankruptcy and Insolvency Act, specifically a receiver's application for directions under s. 249, the appeal route is to the Court of Appeal.

The Receiver brought a motion for directions to determine whether the Court of Appeal or the Divisional Court has jurisdiction over an appeal concerning a priority dispute between registered lien claimants and a registered mortgage in a receivership.

The motions judge held that a single judge of the Court of Appeal lacks jurisdiction to decide whether an appeal lies within the court's jurisdiction, as this must be decided by a three-judge panel.

The motion was adjourned to be heard by a panel.

This motion, initiated by the Receiver, determined competing priorities under s.78 of the Construction Act between construction lien claimants (represented by Maxion Management Services Inc.) and a third-ranking mortgage held by Donald Dal Bianco.

The court found that Dal Bianco's mortgage, registered after the first lien arose and securing funds advanced between 2012 and 2015, did not qualify for priority as a "subsequent mortgage" under s.78(6) because the advances were not made "in respect of that mortgage." Furthermore, it was not a "building mortgage" under s.78(2) as it did not involve an intention to secure future financing.

The court emphasized the general priority of lien claimants and the mortgagee's burden to prove exceptions.

Consequently, the lien claimants were granted priority over the third mortgage.

The plaintiffs brought a motion to strike the statement of defence and for judgment, which they subsequently abandoned.

The defendants sought costs of $14,515.08 on a partial indemnity basis for the abandoned motion.

The court fixed the defendants' costs at $7,500 inclusive of HST and disbursements, noting that while the motion was not argued, the defendants' counsel had prepared materials and travelled for the hearing.

The court ordered that the costs not be payable until the conclusion of the action, as they may be deducted from any amounts found owing to the plaintiffs.

The plaintiff, a third-generation owner of a funeral home, sold his shares to the defendant and entered into a 10-year Transitional Consulting Services Agreement (TCSA).

Unhappy differences arose, leading the plaintiff to go on medical leave and claim constructive dismissal.

The court found the defendant's course of conduct, including improper termination of vehicle use, tracking hours, non-payment of commissions, removal of a photograph, and changing locks, amounted to constructive dismissal.

The plaintiff's claims for intentional infliction of mental suffering and discrimination under the Human Rights Code were dismissed.

Damages were awarded for lost salary, vehicle expenses, benefits, golf membership, and commissions.

The appellants appealed from an order granting the respondent's application for a warrant to remove signs placed on trailers bordering Highway 400.

The signs violated the Public Transportation and Highway Improvement Act as they were within 400 metres of the highway.

The appellants challenged the application on grounds that the respondent cited incorrect subsections of the Act and that the authorization to remove the signs was deficient in not specifying which signs were subject to removal.

The Court of Appeal upheld the application judge's decision, finding that the erroneous subsection reference was a mere irregularity that did not vitiate the authority of the direction, and that the deficiency in the authorization could be remedied by issuing a supplementary authorization.

The appellants' cross-application for a declaration that the signs were permitted was dismissed as it confused the respondent's sign policy with the general prohibition under the Act.

Northridge Homes Ltd. sought costs after successfully vacating an improper court order that had discharged construction liens based on a sham financial guarantee bond.

The defendants (Motel and Grewals) did not dispute Northridge's entitlement to costs but challenged the quantum.

The defendants also brought a motion under Rule 57.07(1)(b) of the Rules of Civil Procedure to have their former counsel, Wilford Professional Corporation, held responsible for any costs awarded against them.

The court awarded Northridge $9,000 in all-inclusive costs, reduced from the requested amount due to delay and lack of settlement efforts.

The court further found that Wilford Professional Corporation, through default in ensuring the bond's validity, caused the costs to be incurred without reasonable cause and ordered them to reimburse the defendants for the $9,000.

The Minister of Transportation (MTO) applied for a warrant to remove trailer signage located within 400 meters of Highway 400, arguing it violated the Public Transportation and Highway Improvement Act and the MTO Corridor Signage Policy.

The respondents, including 2523654 Ontario Inc. (252), opposed the removal and brought a counter-application for a declaration that the signage was not prohibited.

The court found that the trailer signage constituted billboard signage not related to the property, thus contravening the Act and Policy.

The court also determined that legal opposition constituted "resistance or opposition" under the Act, justifying the warrant.

MTO's application was granted, and 252's counter-application was dismissed.

The plaintiff, Planet Paper Box Group Inc., sought to extend an ex parte interim injunction against its former sales representative, Mary McEwan, to restrain her from contacting customers and using confidential information.

The court dismissed the plaintiff's motion, finding that the initial ex parte motion was not urgent and that the plaintiff failed to make full and fair disclosure of material facts, particularly regarding the source of its information and the defendant's actual employer.

The court also ruled that the affidavit evidence based on information and belief was inadmissible due to the lack of specified sources, thereby eroding the evidentiary basis for the injunction.

The appellant appealed a trial judgment that declared the respondents had a right of way "in, over, and upon" a portion of the appellant's property, including the right to maintain drainage infrastructure (a catch basin and lateral pipe).

The appellant, who was self-represented at trial, argued the trial judge erred by failing to provide adequate assistance and by improperly interpreting the scope of the easement.

The Court of Appeal upheld the trial judgment, finding no procedural unfairness and that the drainage infrastructure constituted an ancillary right reasonably necessary to the use and enjoyment of the right of way.

Following a ten-day trial where the plaintiffs were entirely successful in an easement and property damage dispute, the court determined the costs award.

The plaintiffs had made two offers to settle, both of which they beat at trial.

The court found the defendant's conduct in refusing a walk-away offer and proceeding to trial unreasonable.

Applying Rule 49, the court awarded partial indemnity costs up to the date of the first offer and full indemnity costs thereafter, fixing the total costs at $128,000.