Geoffrey D. E. Adair

An appeal by solicitors regarding the approval of contingency fee agreements in an infant settlement involving both a tort claim and an accident benefits claim arising from a motor vehicle accident.

The motion judge approved the contingency fee agreement for the tort claim but reduced the fees for the accident benefits claim, and declined to award GST/HST.

The Court of Appeal upheld the motion judge's decision to consider the two claims separately and to reduce the accident benefits fees based on the lower risk and complexity of that claim compared to the tort claim.

However, the Court of Appeal found that the motion judge erred in not awarding GST/HST on the approved fees, as the contingency fee agreement explicitly provided for such taxes in addition to the fee amount.

This decision addresses the issue of costs following a successful summary judgment motion by the defendant Williams-Litigation Lawyers.

The defendant sought costs on a substantial or partial indemnity basis, while the plaintiffs proposed a lower partial indemnity amount.

The court awarded costs to Williams-Litigation Lawyers on a partial indemnity basis, considering factors such as the defendant's success, the significant damages claimed by the plaintiffs, the narrow but important legal issue, counsel's experience, and efforts to resolve the dispute without costs.

The court found the hours claimed by the defendant's counsel to be higher than what the plaintiffs ought to have expected given the non-complex nature of the proceedings.

The plaintiffs brought an action for defamation against a lawyer and the law firm with which she practiced in association.

The defendant law firm brought a motion for summary judgment to dismiss the action against it, arguing it was not vicariously liable for the lawyer's actions.

The court found that the lawyer was not a partner or employee of the firm, and the firm did not control her practice.

The firm's letterhead and marketing materials clearly indicated she was 'Practicing in Association not in Partnership'.

The court granted summary judgment and dismissed the action against the law firm.

Following a Court of Appeal order, the Superior Court of Justice conducted a trial of an issue to determine the value of the plaintiff's townhouse as a two-storey unit versus a three-storey unit as of December 2, 2014.

The plaintiff had purchased the unit believing it was three storeys, but the third floor was illegally built into the common element space.

The court evaluated competing expert appraisal evidence, ultimately preferring the plaintiff's expert who conducted a thorough inspection and appropriately applied the direct comparison approach.

The court fixed the plaintiff's damages for the loss of the third floor at $465,000.

This endorsement addresses a motion brought by Robert Bilich, a non-party, seeking to enforce Revised Minutes of Settlement from a previously settled trial and to obtain declarations regarding alleged misappropriation of funds by the defendants.

The settlement required the defendants to provide quarterly accountings to investors.

Bilich, claiming to represent an investor, alleged non-compliance.

The court found that the defendants had belatedly provided an accounting, thereby purging any potential contempt.

The court dismissed Bilich's motions, refusing an adjournment for cross-examination, as his true intent was to re-open settled trial issues and pursue allegations of misappropriation, for which he lacked status.

The court affirmed the defendants' ongoing obligation to provide quarterly accountings to investors.

The defendants sought costs following the dismissal of the plaintiff’s summary judgment motion in an action seeking specific performance of a purported oral commercial lease.

The court had previously determined that the matter could not be fairly resolved on summary judgment and directed that it proceed to an expedited trial.

In determining costs, the court considered that a significant portion of the defendants’ preparation and cross-examinations would benefit the upcoming trial and should not be fully compensated at this stage.

The court therefore limited the recoverable costs to reasonable amounts for the motion itself.

Specific costs were fixed for each group of defendants’ counsel, with limited disbursements allowed.

The plaintiff insurer sought summary judgment against the defendant insurer for equitable contribution and unjust enrichment regarding the costs of a life-saving drug, Soliris, paid on behalf of a mutual insured.

The defendant had initially denied coverage improperly.

The court found that the defendant was unjustly enriched and obligated to pay 90% of the drug costs as the primary insurer.

However, the court held that the plaintiff discovered the claim in October 2009, meaning claims for payments made more than two years before the action was commenced on April 4, 2012, were statute-barred.

Applying the principle that a new cause of action arises with each monthly payment, the court ordered the defendant to reimburse the plaintiff for all payments made after April 4, 2010.

The plaintiffs sought injunctive relief restraining a shareholder from selling shares of her holding company that indirectly owned shares in a family‑controlled corporation, and from disclosing corporate financial information.

The defendants brought a cross‑motion for summary judgment dismissing the claim and sought partial summary judgment on a counterclaim seeking various corporate governance orders under the Ontario Business Corporations Act.

The court held that although the separation agreement did not expressly restrict sales of the holding company shares, an implied term prevented either party from disposing of their interests in the holding companies without the other’s consent.

A permanent injunction was granted preventing the sale of the holding company shares without consent.

The court rejected restrictions on the shareholder’s access to financial statements but granted limited corporate governance relief including annual meetings, financial statement delivery, and a trust accounting.

Following an appeal, the defendant sought costs and submitted a bill of costs for $28,908.49, but indicated a willingness to accept $18,000.

The plaintiffs did not contest entitlement but argued the appropriate amount was $15,000.

The Divisional Court found the appeal was not overly complex and agreed with the plaintiffs' submission, fixing the costs of the appeal at $15,000 all-inclusive.

The plaintiff appealed a jury verdict arising from a motor vehicle accident where his motorcycle collided with the defendant's left-turning truck while the plaintiff was attempting to pass.

The jury apportioned liability 85% to the plaintiff and 15% to the defendant, and assessed total damages at $206,958.46, resulting in a net award of $16,500.

On appeal, the plaintiff argued the apportionment of liability and assessment of damages were unreasonable and that the jury relied on inadmissible lay opinion evidence.

The Divisional Court dismissed the appeal, finding the trial judge's instructions were adequate, the lay witness was properly confined to fact evidence, and the jury's verdict on both liability and damages was supported by the evidence and not plainly unreasonable or unjust.

Following an application and counter‑application relating to an agreement of purchase and sale, the successful party sought costs on a substantial indemnity basis exceeding $45,000.

The court found the successful party had prevailed entirely, including obtaining an order that the deposit be paid and establishing liability for breach of contract.

However, the issues were primarily contractual interpretation and the facts were largely non‑controversial.

Applying Rule 57.01(1) of the Rules of Civil Procedure and the fairness principle from Boucher v. Public Accountants Council, the court declined substantial indemnity costs.

Costs were awarded on a partial indemnity basis against two opposing parties jointly and severally.

Following a successful motion enforcing a Canadian-recognized foreign judgment obtained against a foreign state and its agencies for terrorism-related conduct, the successful parties sought substantial indemnity costs.

The court considered whether the conduct of the foreign state justified elevated costs.

It held that substantial indemnity costs require reprehensible litigation conduct, not merely objectionable political or international conduct by a foreign state.

Because the defendants did not participate in the proceeding and simply ignored it, their conduct did not meet the threshold for elevated costs.

Partial indemnity costs of $15,456.05 were awarded as fair and reasonable under Rule 57 of the Rules of Civil Procedure.

Victims of terrorism sought enforcement in Ontario of U.S. judgments against a foreign state and its agencies following recognition of those judgments under the Justice for Victims of Terrorism Act.

The court considered the interaction between the JVTA, the State Immunity Act, and Ontario enforcement procedures.

It held that non‑diplomatic bank accounts and real property beneficially owned by the foreign state in Canada were exigible assets available to satisfy the recognized judgment.

The court ordered financial institutions to pay funds to the sheriff for distribution under provincial execution legislation and directed enforcement against two properties found to be beneficially owned by the foreign state.

The appellants, former students of Grenville Christian College, appealed a decision refusing to certify their class action for institutional abuse.

The motions judge had found that all certification criteria were met except for the preferable procedure, concluding that individual issues would overwhelm common ones.

The Divisional Court allowed the appeal, finding the motions judge made a palpable and overriding error by failing to properly analyze the access to justice barrier and by incorrectly assuming common issues would need to be relitigated.

The Court certified the class action and awarded costs to the appellants.

The plaintiffs appealed a jury verdict that dismissed their personal injury action arising from a motor vehicle accident in a parking lot and assessed their damages at zero.

The plaintiffs argued the trial judge erred by failing to instruct the jury on the Highway Traffic Act and that the zero damages assessment was perverse.

The Divisional Court dismissed the appeal, finding the jury charge on the standard of care was correct and sufficient, and that the jury's assessment of damages was open to them based on the competing medical evidence.

The appellant appealed a motion judge's costs order, arguing that the respondent Lattice Engines Inc. should not have been awarded costs as its interests were identical to the respondent Scott's, and that the quantum of costs awarded to Scott was unreasonable.

The Divisional Court dismissed the appeal, finding that the respondents had distinct interests warranting separate representation and that the quantum of costs awarded to Scott was reasonable and not an error in principle.

In a national class action by terminated GM dealers against GMCL and their counsel, Cassels Brock & Blackwell (CBB), CBB brought third party claims against out-of-province local lawyers who provided independent legal advice to the dealers.

The out-of-province third parties brought motions to stay or dismiss the claims for lack of jurisdiction or forum non conveniens.

The court dismissed the motions, finding that the Ontario court had jurisdiction under the fourth Van Breda presumptive connecting factor because the Wind-Down Agreements, which required the independent legal advice, were made in Ontario and were sufficiently connected to the dispute.

The court also found Ontario to be the most appropriate forum.

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

The appellant was awarded costs of the appeal on a partial indemnity scale fixed at $45,000.

The appellant and other responding insurers were awarded additional costs fixed at $20,000.

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

The appellants were ordered to pay costs to the respondent Diocese in the amount of $20,000, inclusive of disbursements and taxes.

The appellants sought to certify a class action against a private religious school, its former headmasters, and the local Anglican Diocese for historical abuse.

The motion judge refused certification against all respondents, but specifically dismissed the action against the Diocese for failing to disclose a reasonable cause of action.

The appellants appealed to the Court of Appeal.

The Court held it had jurisdiction under s. 6(1)(b) of the Courts of Justice Act to hear the appeal regarding the Diocese, as it was a final order dismissing the action, not merely a refusal to certify.

On the merits, the Court upheld the dismissal, finding the pleadings failed to establish sufficient proximity to ground a duty of care or a fiduciary relationship between the Diocese and the students.

The Court declined to join the appeal regarding the other respondents, transferring it to the Divisional Court.