Glenn Grenier

The respondent, NYX Tannery Ltd., brought a motion to quash two appeals filed by the appellant, Julie Daly.

One appeal was from a costs order of $30,000, and the other from an order amending the title of proceedings.

The Court of Appeal quashed both appeals, determining that the order amending the title of proceedings was an interlocutory order requiring leave to appeal to the Divisional Court, and the costs order, being less than $50,000, also required leave to appeal to the Divisional Court.

The applicant, Julie Daly, commenced an application challenging demolition permits and seeking to restrain eviction proceedings, initially naming only the City of Mississauga, but later joined by NYX Tannery Ltd. Daly subsequently abandoned the application.

NYX Tannery Ltd. sought costs for the abandoned application.

Daly brought an anti-SLAPP motion to dismiss the costs request and sought a stay of costs pending other tribunal proceedings.

The court dismissed Daly's anti-SLAPP motion, finding that a costs hearing was not a "proceeding" against which an anti-SLAPP motion could be brought in these circumstances, especially as Daly initiated the underlying litigation for her own benefit.

The court also dismissed the request for a stay.

Ultimately, the court awarded costs of $30,000 to NYX Tannery Ltd., considering factors such as Daly's improper opposition to joinder, the complexity of issues, and her impecuniosity, which led to a modest reduction from the requested amount.

The respondents, NYX Tannery Ltd. and the City of Mississauga, brought a motion to amend the Title of Proceedings to include the applicant's other name, Julie Samantha Lawrence, for enforcement purposes.

The applicant, Julie Daly, opposed the motion and also requested the judge's recusal and an adjournment.

The court dismissed the recusal and adjournment requests, finding no reasonable apprehension of bias and no valid grounds for adjournment, including that the anti-SLAPP motion stay did not apply.

The court granted the motion to amend the Title of Proceedings, finding no prejudice to the applicant that could not be compensated by costs.

The self-represented applicant brought a motion to discard a court-ordered timetable for a costs motion, citing medical disabilities and COVID-19 delays.

She had previously obtained an ex parte order scheduling the urgent motion by falsely claiming opposing counsel refused to provide available dates.

The court vacated the ex parte order due to the applicant's intentional failure to make full and fair disclosure.

On the merits, the court dismissed the motion to amend the timetable, finding the applicant failed to demonstrate good faith efforts to comply with the deadlines or that COVID-19 protocols prevented her compliance.

The defendants in two construction lien actions, Pier 27 and L Tower, brought motions seeking orders for the plaintiff, Yuanda Canada Enterprises Ltd., to post security for costs totaling over $1 million.

The court dismissed both motions, finding that the defendants failed to establish "good reason to believe" that the plaintiff had insufficient assets in Ontario to pay costs.

The court emphasized the high threshold for such motions, requiring indicia of insolvency or instability, and noted that the certified basic holdback owed to the plaintiff by the Pier 27 Defendants, exceeding the claimed security for costs, constituted a sufficient asset.

Following a trial of an issue regarding notice holdback liability under the Construction Lien Act, the plaintiff sought costs.

The defendant argued for no costs due to divided success and public interest.

The court found the plaintiff was the successful party, having established $215,054.80 in holdback liability.

While the court reduced the costs claim for proportionality and divided success, it elevated the base standard to substantial indemnity due to the defendant's capricious conduct regarding a section 39 response.

The plaintiff was awarded $150,000 in costs.

In a trial of an issue within a construction lien reference, the court determined the owner's notice holdback liability under s. 24 of the Construction Lien Act.

The subcontractor argued that ten emails constituted written notices of lien.

The court held that a valid written notice of lien requires a clear warning that the dispute has reached the lien stage and that the flow of funds must be interrupted.

Only one email met this requirement.

The court further held that the owner's notice holdback liability was reduced by subsequent payments made by the contractor to the subcontractor, resulting in a final notice holdback liability of $215,054.80.

Two competing applications concerned whether a municipal site alteration by-law regulating the dumping of fill applied to an aerodrome.

The municipality sought declarations that its by-law requiring a permit and environmental safeguards for fill operations applied to the airport’s grading activities, while the airport operator argued that such regulation intruded on exclusive federal jurisdiction over aeronautics.

Applying the constitutional doctrines governing division of powers and interjurisdictional immunity, the court held that the by-law’s pith and substance concerned environmental protection and land use regulation, matters within provincial jurisdiction.

The by-law did not impair the protected core of federal aeronautics power because it regulated only the quality and management of fill, not the design or operation of runways or airport facilities.

The municipal application was granted and the airport operator’s application was dismissed.

Following a motion concerning a construction lien priority dispute, the court determined the issue of costs between the parties.

The responding party was the successful party on the only issue in dispute and relied on a Rule 49 offer to seek partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

The moving party argued it should receive costs because the responding party conceded a minor adjustment to the holdback amount prior to the hearing.

The court rejected that argument, holding the concession did not justify depriving the successful party of costs.

Applying the factors governing costs assessment, including those articulated in Boucher v. Public Accountants Council for the Province of Ontario, the court fixed costs at $17,300 inclusive of disbursements and taxes.