Gary L. Petker

Following a trial where the plaintiff was awarded $225,000 in damages arising from an asset purchase agreement, the court determined the issue of costs.

The plaintiff sought $172,362 in costs on a substantial indemnity basis, relying on a Rule 49 offer to settle.

The court found the offer did not comply with Rule 49 as it was made only three days before trial.

The court awarded the plaintiff partial indemnity costs, fixing the amount at $80,000 after finding the hours claimed by the plaintiff's counsel were excessive compared to defence counsel.

The plaintiff sold her real estate business to the defendants under an Asset Purchase Agreement.

Shortly after the defendants took over operations, two key agents resigned.

The defendants refused to close the transaction, alleging the plaintiff misrepresented the agents' contentedness and failed to provide their employment contracts, but the defendants continued to operate the business.

The court found the defendants breached the agreement, holding that the Entire Agreement clause precluded reliance on any alleged pre-contractual misrepresentations.

The plaintiff was awarded $225,000 in damages, representing the unpaid purchase price and an estimated persistency bonus.

During a Commercial List case conference in a complex multi‑party commercial dispute, the court addressed ongoing discovery and production issues among numerous defendants and third parties.

The court directed timelines for outstanding undertakings and warned that unresolved production disputes would require formal motions before a Master.

The court emphasized counsel’s obligation to cooperate in resolving discovery issues and indicated that failure to do so could result in elevated or full indemnity costs.

Additional guidance was provided regarding potential motions for non‑party examinations and production of partnership financial statements.

The court scheduled a further case conference and noted that the matter would not proceed to trial as early as previously anticipated due to outstanding discovery issues.

During a Commercial List case management conference in a complex multi‑party securities and investment dispute, the court issued procedural directions governing ongoing litigation steps.

The court addressed the potential settlement motion involving certain defendants, confirmed the status of examinations for discovery, and ordered timelines for answering undertakings.

The judge provided structured options for handling refusals motions and warned that costs may be assessed per refusal to discourage unnecessary motions.

Additional directions were given regarding the timing of expert reports, a possible future summary judgment motion, and scheduling of the next case management conference.

The appellant municipality appealed a trial judgment finding it negligent for failing to respond adequately to icy road conditions.

The municipality argued the trial judge erred by not applying a presumption of negligence against the respondent for crossing the centre line.

The Court of Appeal dismissed the appeal, finding the trial judge properly identified evidence rebutting the presumption, including the respondent's testimony, evidence of appropriate speed, and expert testimony that the icy road was the sole cause of the accident.

The plaintiffs invested in worthless start-up companies on the advice of their financial advisor, who was registered to sell mutual funds through the appellant dealer.

The advisor promoted these off-the-books investments openly from his office.

The trial judge found the dealer liable in negligence for failing to supervise the advisor and vicariously liable for his actions, concluding he was an employee rather than an independent contractor.

The Court of Appeal dismissed the dealer's appeal, upholding the findings that the dealer breached its duty to supervise its mutual fund sales agent and was vicariously liable for his wrongdoing.

The appellants appealed a motion judge's refusal to add two parties and a new oppression remedy to their statement of claim in a dispute over a real estate joint venture.

The motion judge had dismissed the amendments on the basis that the appellants failed to produce evidence supporting the allegations against the proposed parties.

The Court of Appeal allowed the appeal, holding that on a motion to amend pleadings, the facts pleaded must be taken as true and provable, and the court should not look beyond the pleadings to require evidentiary proof at that stage.

The proposed amendments adequately disclosed causes of action for conspiracy, inducing breach of contract, and oppression.

The plaintiff suffered catastrophic injuries in a head-on motor vehicle collision on an icy municipal road.

The plaintiff sued the municipalities responsible for winter road maintenance.

The court found that the municipal snow plough operator created the icy conditions by applying a sand/salt mixture that caused a re-freeze, and then failed to return within a reasonable time to treat the resulting ice.

The court held that the Minimum Maintenance Standards did not shield the municipalities because the standards do not cover situations where the municipality creates the hazard.

The municipalities were found fully liable for the agreed damages of $1,912,176.96, with no contributory negligence on the part of the plaintiff.

Following the granting of summary judgment dismissing the plaintiff’s nuisance claim, the court determined the appropriate costs award.

The plaintiff argued that the action constituted a public interest test case and sought an order that no costs be awarded.

The court rejected that characterization, finding the litigation primarily advanced the plaintiff’s private economic interests and did not qualify as public interest litigation warranting relief from the usual costs rule.

Applying the partial indemnity principle and considering the parties’ circumstances and prior offer to settle, the court fixed costs payable by the unsuccessful plaintiff.

The plaintiff was ordered to pay the defendant $24,767.02 in costs on a partial indemnity basis, plus HST.

The plaintiff, owner of a farm leased for raising rare breeding turkeys, sued the defendant, who purchased a neighbouring farm to build a commercial poultry barn.

The plaintiff alleged that the defendant's proposed barn would cause an actionable nuisance due to the risk of airborne pathogens, which prompted the plaintiff's tenant to threaten to terminate its lease.

The defendant brought a motion for summary judgment to dismiss the action.

The court granted the motion, finding that the plaintiff's operation was abnormally sensitive and that the defendant's proposed use, which complied with all regulatory requirements, did not constitute an unreasonable interference or actionable nuisance.

The moving parties sought summary judgment dismissing a negligence claim on the basis that it was barred by the two‑year limitation period under the Limitations Act, 2002.

The claim arose from an aborted real estate transaction where the plaintiff alleged that the drafting of a price allocation clause in an agreement of purchase and sale constituted solicitor’s negligence.

The court considered the discoverability provisions in s. 5 of the Act and whether a reasonable person in the plaintiff’s circumstances ought to have known of the potential claim earlier.

The court held that the plaintiff was put on notice of the potential drafting issue no later than the delivery of a statement of defence in related litigation in February 2005.

Because the action was commenced more than two years after that date, the claim was statute‑barred.

The moving party sought a stay of payment of the outstanding balance of a costs award pending the outcome of a co‑defendant’s appeal of the underlying trial decision and costs order.

The court considered the test for a stay under the Courts of Justice Act and Rules of Civil Procedure, applying the principles from RJR‑MacDonald v. Canada (Attorney General).

Although the motion raised a serious issue regarding proportional allocation of costs between defendants, the moving party had not appealed the decision and therefore could not rely on the automatic stay provision.

The court found that the moving party failed to establish irreparable harm, as the evidence only expressed concern about potential difficulty recovering funds if the appeal succeeded.

The motion for a stay was dismissed.

Following a successful summary judgment motion dismissing a civil action, the defendant sought costs on a substantial indemnity basis.

The court considered Rule 20.06 of the Rules of Civil Procedure and the discretionary factors under s.131 of the Courts of Justice Act and Rule 57.01.

The moving party argued the claim lacked merit and that litigation conduct justified punitive costs.

The court held that the plaintiffs’ conduct was not sufficiently reprehensible, scandalous, or outrageous to justify substantial indemnity costs and that no Rule 49 offers to settle were made.

Partial indemnity costs were awarded with minor reductions to hours and disbursements.

The respondent was injured in a motor vehicle accident and applied for long-term disability (LTD) benefits from her group insurer, which were denied.

She subsequently settled her LTD claim for a lump sum.

Her automobile insurer then refused to pay income replacement benefits (IRBs), arguing it was entitled to deduct the hypothetical LTD benefits she might have received had she successfully litigated the LTD claim.

The Court of Appeal dismissed the automobile insurer's appeal, holding that the LTD benefits were not 'available' to the respondent since they had been denied, and that she had not abandoned her application by settling the claim.

The appellants appealed a motion judge's refusal to stay Ontario proceedings against them based on an exclusive jurisdiction clause favouring British Columbia.

The Court of Appeal upheld the motion judge's decision, agreeing that the respondents had shown a 'strong case' not to enforce the clause.

The court deferred to the motion judge's weighing of factors, including that the claims were part of a larger multi-party action in Ontario, the respondents were unsophisticated, the clause was in a pre-printed contract, and the appellants showed no juridical advantage to a trial in British Columbia.

The appeal was dismissed.

The appellant appealed from a judgment enforcing a settlement.

The Court of Appeal found no error in law by the motion judge in enforcing the settlement and dismissed the appeal, awarding costs to the respondent to be deducted from the settlement funds.

The defendant insurer was successful on a motion and sought costs.

The Court of Appeal awarded modest costs of $2,500 to the insurer, noting that the insurer had refused to pay the $97,500 it was obligated to pay until after the motion.

The appellants, a stockbroker and two brokerage firms, appealed a trial judgment finding them liable for negligence and breach of contract resulting in the respondents' investment losses.

The trial judge found the broker engaged in unauthorized trading and the firms failed to supervise him or warn the clients.

The respondents cross-appealed the dismissal of their claims for loss of opportunity and punitive damages.

The Court of Appeal dismissed both the appeal and the cross-appeal, upholding the trial judge's findings on liability, apportionment, mitigation, and costs.

The moving party brought a motion for leave to intervene as a friend of the court in an appeal involving stock broker liability.

The court applied the test for intervention and found that the proposed intervention would not make a useful contribution to the resolution of the appeal, as the issues in the main appeal were essentially fact-driven and the intervention was not supported by any of the parties.

The motion for intervenor status was dismissed with costs.

The plaintiff was injured in a car accident by an unidentified driver and claimed the $200,000 policy limit under his unidentified driver coverage with the defendant insurer.

The plaintiff also received $102,400 in disability benefits from a private disability policy.

The defendant insurer sought to deduct the disability benefits from the $200,000 limit pursuant to s. 2(1)(b) of O. Reg. 676.

The motion judge held the deduction was not permitted due to the common law private insurance exception to the rule against double recovery.

The Court of Appeal allowed the appeal, holding that the regulation abrogated the common law exception and the insurer was entitled to deduct the disability payments.