Gregory M. Mulligan

Following lengthy corporate litigation involving an application under the Business Corporations Act and the Winding-up and Restructuring Act, the parties resolved their dispute through Minutes of Settlement, leaving only the issue of costs for determination.

The proceedings included multiple interlocutory motions and separate claims that were ultimately settled.

The court considered the principles governing costs under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, including reasonableness, encouragement of settlement, and partial indemnification.

Because the settlement did not determine a successful party and the parties had not exchanged costs outlines prior to settlement, the court held that each side should bear its own costs for the main application.

However, the applicants were ordered to pay $4,000 to the respondents for costs related to separate claims that had been commenced but not pursued.

The applicant mother brought a motion to change a prior child support order seeking retroactive child support and contribution toward the parties’ adult child’s post-secondary education expenses.

The court declined to order retroactive child support, finding the payor parent had complied with the existing order and the delay in seeking variation was not adequately explained, applying the principles in DBS v. SRG.

However, the court held the father should contribute to post-secondary education expenses despite the absence of a relationship with the child, noting a parent cannot rely on a lack of relationship they did not attempt to foster.

Child support was ordered during summer months when the child would reside at home, and the father was ordered to contribute 75% of the net post-secondary expenses for a two‑year college program.

A monthly payment schedule was set to satisfy the father’s total obligation after credit for ongoing payments.

Following the dismissal of the defendant's motion for summary judgment, the parties made written submissions on costs.

The plaintiff sought substantial indemnity costs, arguing the motion was unreasonable.

The defendant argued no costs should be awarded or, alternatively, sought its own costs for relief resolved prior to the motion.

The court found the defendant's motion was not unreasonable based on the pleadings and awarded the plaintiff partial indemnity costs fixed at $7,000, declining to award the defendant costs for the pre-motion resolved issues.

The plaintiffs moved for leave to amend their Amended Statement of Claim to increase damages and add a claim for punitive damages, and also sought leave to file a jury notice after pleadings had closed and the matter had been set down for trial.

The court granted leave to amend but refused the request to file a jury notice.

Applying principles from prior authorities, the court held that amendments reopening pleadings do not automatically revive the right to serve a jury notice where the amendments serve only a limited purpose and the proceeding is already trial-ready.

The request was brought on the eve of trial and the plaintiffs provided no cogent explanation for the delay.

The plaintiffs failed to rebut the presumption of prejudice to the defendants, who had prepared the case as a non‑jury matter.

Following a six‑day hearing on an application for the passing of accounts of a former estate trustee, the court addressed the issue of costs.

The moving party sought partial indemnity costs for legal fees, HST, and disbursements after obtaining substantial success against the estate.

Applying Rule 57.01 of the Rules of Civil Procedure and the principle of reasonableness, the court considered the importance of the issues and the conduct of the opposing parties, including disorganized and repetitive materials that unnecessarily lengthened the proceeding.

The court concluded that the claimed costs were fair and reasonable and ordered them payable from the estate.

The Attorney General of Canada appealed a motion judge's decision to conditionally certify a class action on behalf of aboriginal people placed in non-aboriginal foster or adoptive homes.

The motion judge had found that the statement of claim did not disclose a cause of action but conditionally certified claims in negligence and breach of fiduciary duty, effectively pre-approving an amended pleading.

The Divisional Court allowed the appeal, holding that the motion judge erred by predetermining the viability of the cause of action without conducting a full analysis and denying the defendant the opportunity to argue the certification criteria.

The statement of claim was struck with leave to amend, and the certification motion was ordered to be heard by a different judge.

The appellant municipality appealed a decision of the Ontario Municipal Board that granted nine minor variances for a mixed-use development.

The appellant argued the Board failed to conduct an independent analysis of the four-part test under s. 45(1) of the Planning Act, relied on irrelevant factors, and reversed the onus of proof.

The Divisional Court dismissed the appeal, finding the Board's decision was reasonable, transparent, and did not reverse the legal onus or rely on irrelevant factors.

The appellant appealed a Small Claims Court decision dismissing his claim for damages to his fence.

The appellant argued that the trial judge erred in his application of the law of nuisance by requiring proof of causation.

The Divisional Court dismissed the appeal, finding that the trial judge correctly identified causation as a pre-requisite to a finding of nuisance and made no error of law in dismissing the claim after finding the cause of the damage was completely unknown.

The appellant appealed an order denying her leave to commence a derivative proceeding on behalf of a dissolved corporation.

The motions judge had found that the appellant was not acting in good faith due to substantial delay and a multiplicity of actions.

The Divisional Court dismissed the appeal, holding that the motions judge's finding of a lack of good faith was owed deference and that the appellant failed to demonstrate a palpable and overriding error.

The applicant sought judicial review of a Director's Delegate's decision dismissing her appeal of an Arbitrator's interlocutory order.

The Arbitrator had found that the insurer's failure to comply with notice requirements before terminating income replacement benefits did not entitle the applicant to ongoing benefits prior to a hearing on the merits.

The Divisional Court dismissed the application, finding that the Director's Delegate's decision to reject the interlocutory appeal was a reasonable exercise of discretion under the Dispute Resolution Practice Code.

The plaintiff brought a motion seeking leave to appeal a costs order of $39,000 awarded to the defendant following a successful summary judgment motion.

The plaintiff argued the costs award was unreasonable and approximated substantial indemnity.

The Divisional Court dismissed the motion, finding no error in principle and emphasizing that leave to appeal costs orders should be granted sparingly and deference must be accorded to the motion judge's discretion.

Following the dismissal of the appellant's appeal from a Small Claims Court decision, the successful respondents sought costs.

The respondents, who were self-represented at trial but retained counsel for the appeal, claimed substantial indemnity costs of $7,611.62 or partial indemnity costs of $4,593.75.

The appellant conceded costs were payable but argued they should be fixed at $4,500.

Applying the principles of reasonableness and proportionality under Rule 57.01 and section 131 of the Courts of Justice Act, the court fixed the respondents' costs at $5,000 inclusive of fees, disbursements, and HST.

The appellant appealed a Small Claims Court decision that dismissed its claim for unpaid invoices.

The trial judge found the appellant was entitled to the claimed amount but allowed an equivalent set-off due to the appellant's negligent misrepresentation regarding the seasonal sag of hydro wires, which caused the respondents to incur significant extra costs when moving a house.

The Divisional Court dismissed the appeal, holding that the informal pleading standards in Small Claims Court permitted the trial judge to apply set-off based on the facts presented, and that the finding of negligent misrepresentation was supported by the evidence.

The appellant appealed a Small Claims Court judgment ordering him to pay the Ministry of Transportation for a fire department invoice arising from a motor vehicle accident.

The appellant argued there was a reasonable apprehension of bias because the deputy judge was a former mayor of a neighbouring municipality and an associate at his law firm was a volunteer firefighter for the responding fire department.

The Divisional Court dismissed the appeal, finding no reasonable apprehension of bias and no palpable and overriding error in the deputy judge's factual findings that the fire department provided a compensable service.