Gregory M. Mulligan

This motion concerned the amendment of a prior judgment under Rule 59.06(1) of the Rules of Civil Procedure to correct a calculation error regarding missed mortgage payments.

The moving party, 2424033 Ontario Ltd., sought to increase the outstanding amount on a second mortgage from $356,200 to $395,200, arguing that the original judgment incorrectly accounted for only 11 missed payments instead of 23.

The responding party, 1605041 Ontario Limited, contended that Rule 59.06(1) was narrow and inapplicable.

The court found that the error was an accidental slip or omission, as the number of missed payments was an undisputed fact at trial, and granted the motion to amend the judgment.

The parties settled a motion by consent temporary order, leaving only the issue of costs.

Both the applicant and respondent sought costs.

The court reviewed Rule 24 of the Family Law Rules and relevant case law on costs after settlement agreements.

The court found no clear "winner" or "loser" and determined that neither party's behaviour rose to the level of unreasonableness warranting costs against them.

Given the divided success and principles of reasonableness and proportionality, the court ordered each party to bear their own costs.

This motion concerned the interpretation of a clause in Agreements of Purchase and Sale regarding the calculation of "Net Developable Area" (NDA) for land development.

The core dispute was whether storm water management (SWM) ponds located on "Protected Countryside" (Greenbelt lands) should be included in the NDA, thereby affecting the purchase price adjustment.

The court applied principles of contractual interpretation, emphasizing a holistic reading of the agreement and grounding interpretation in the text.

It found the clause unambiguous, concluding that the exception for SWM ponds applied only to "open space lands" (Group A) and not to "Protected Countryside" (Group B).

Consequently, SWM ponds on Protected Countryside do not form part of the NDA.

The plaintiffs, having succeeded in a 19-day trial and obtained judgment for $614,624 plus $30,000 in punitive damages, sought costs on a partial and substantial indemnity basis totaling $531,272.25.

The defendants argued the costs were excessive, particularly for motions resolved by consent and for alleged over-preparation.

The court, applying principles of reasonableness and the objectives of modern costs rules, reduced the partial indemnity costs for consent motions and the substantial indemnity costs for trial preparation, finding over-preparation.

The court awarded total costs of $353,109.53, including fees and disbursements.

The defendant brought a summary judgment motion to dismiss the plaintiff's claim regarding a fraudulently transferred property.

The court found serious credibility issues with both parties concerning the property transfers and a trust agreement.

The defendant, as trustee, failed in his duty to account to the plaintiff, the beneficial owner.

Given the significant credibility issues, the court dismissed the summary judgment motion, finding a genuine issue requiring a trial, and suggested a mini-trial or consolidation with related litigation.

The plaintiff, Battano Construction Limited, moved for default judgment against the defendant, Maram Building Corp. Maram, whose counsel had withdrawn, sought leave to be represented by its Director and Officer, Mary Pickard, and requested an opportunity to set aside the noting in default.

The court granted leave for Ms. Pickard to represent Maram and found that Maram had substantially complied with previous orders regarding costs and the motion for leave.

Consequently, the court granted Maram 15 days to file a motion to set aside the noting in default, adjourning Battano's default judgment motion pending the outcome.

The plaintiff, Otomic Contractors Ltd., sought partial indemnity costs after successfully claiming damages and upholding a construction lien in a four-and-a-half-day trial.

The defendant, Royal 7 Developments Ltd., opposed the plaintiff's claim for $120,902.32, arguing over-preparation and an excessive hourly rate.

The court, applying principles of judicial discretion, reasonableness, and proportionality under the Courts of Justice Act and Rules of Civil Procedure, found the plaintiff's requested hours disproportionately high.

The court awarded the plaintiff $75,000 in fees plus HST and disbursements, totaling $94,724.74 after a credit for a prior costs award.

The plaintiffs sought default judgment against the defendants for outstanding amounts on a promissory note, equipment leases, and damages arising from an unjustified injunction.

The court granted default judgment for the promissory note and equipment lease payments, but denied claims for personal expenses and time spent due to lack of supporting evidence.

Damages were awarded after crediting the defendants for asset recovery.

The plaintiffs and two State Farm defendants brought a motion for default judgment against the defendant Michael Morton due to his repeated failure to file a Statement of Defence or take any steps in the action, despite having been granted multiple indulgences by the court.

The court found that Morton was plainly in default and, pursuant to Rule 19.02(1), was deemed to admit the allegations of fact.

Default judgment was granted against Morton for the settled claim amount of $1,316,654.32, along with partial indemnity costs of $16,981.86.

The defendants brought a motion to set aside a noting in default against them in a construction lien action and sought leave to file a Statement of Defence and Counterclaim.

The plaintiff had noted them in default without prior notice, despite ongoing communications between counsel.

The court granted the defendants' motion, finding they met the two-part test for setting aside default by acting promptly and providing evidence of a good defence.

The court also noted that the plaintiff's counsel's conduct, in failing to notify of the default, offended principles of advocacy and civility.

The plaintiff, Sky High Roofing & Sheet Metal Inc., brought a motion for an interim order under Rule 44 for the return of three pieces of equipment from the defendant, Scott Bennett.

The equipment was initially delivered to the defendant for storage, and while discussions about a potential purchase occurred, no written agreement was finalized.

The court found a triable issue regarding whether a purchase agreement was ever reached and that the plaintiff failed to establish unlawful detention by the defendant, a prerequisite for relief under Rule 44.01.

The motion was dismissed, and the plaintiff was ordered to pay costs to the defendant.

The plaintiff brought a motion seeking the production of various documents from the defendant insurer, including an independent claims adjuster's file, the Peel Mutual Insurance Company file, and the Dutton Brock LLP file, along with a further and better Affidavit of Documents.

The defendant claimed solicitor-client privilege and litigation privilege over many of the requested documents.

The court dismissed the plaintiff's motion, finding that the Dutton Brock file was protected by solicitor-client privilege and the Peel Mutual claims notes were protected by an enlarged definition of litigation privilege, as the current action against the insurer was considered to be "essentially the same legal combat" as the prior action against the insured, as per the Supreme Court of Canada's ruling in Blank v. Canada (Minister of Justice).

The plaintiffs were unsuccessful in their summary judgment motion.

The defendant, as the successful party on that motion, sought substantial or partial indemnity costs.

The plaintiffs argued that costs should be reserved to the trial judge, citing that the merits were not yet adjudicated, work product would be used at trial, credibility issues remained, and they still had a reasonable chance to prevail.

The court, exercising its discretion under the Courts of Justice Act and Rules of Civil Procedure, found that the case warranted reserving costs to the cause, as the ultimate outcome depended on credibility at trial.

The defendant's request for immediate costs was dismissed, and costs were ordered in the cause.

The defendant Town brought a motion for partial summary judgment to dismiss parts of the plaintiff's claim: damages for alleged breach of a mural maintenance contract and declaratory relief regarding a heritage building designation.

The court dismissed the motion for summary judgment on the damages claim, finding no efficiency in partial summary judgment in a simplified procedure case with conflicting affidavits and no cross-examination.

However, the court granted summary judgment dismissing the declaratory relief, holding that the Ontario Heritage Act provides a complete code for such matters, which the plaintiff had not followed.

Stewart Title Guaranty Company, as a third party, brought a motion seeking an order to conduct invasive inspections of the plaintiffs' property to assess building deficiencies and repair costs.

The plaintiffs opposed, citing concerns about invasiveness and potential damage.

The court granted the motion under Rule 32.01 of the Rules of Civil Procedure, finding the inspection necessary for the proper determination of damages.

The court emphasized that Stewart Title's undertaking to restore the property to its previous condition alleviated the plaintiffs' concerns regarding potential damage from the invasive testing.

Hydro One Networks Inc. sought unredacted accident reports from the Ontario Provincial Police (OPP) for nine specific motor vehicle accidents and a broad-based order for all future accident reports involving Hydro One.

The OPP consented to provide the specific reports but opposed the broad order, citing obligations under the Freedom of Information and Protection of Privacy Act (FIPPA).

The court dismissed the broad-based application, finding that the Highway Traffic Act does not obligate the OPP to provide such information without a court order, given FIPPA responsibilities, and that judicial oversight is necessary for requests for personal information from non-parties.

The application for the nine specific reports was granted on consent.

The respondent brought a motion to enforce an offer to settle, which the applicant opposed, arguing that the offer had not been accepted.

The court found that the applicant's offer, which included a condition regarding a potential Canada Revenue Agency (CRA) debt, was not fully accepted by the respondent.

The respondent's partial acceptance constituted a counter-offer, meaning no consensus ad idem was reached on all essential terms.

Consequently, the respondent's motion to enforce the settlement was dismissed, and costs were awarded to the applicant.

The plaintiffs, parents of the defendant's estranged spouse, brought a motion for summary judgment seeking repayment of a $43,246.36 loan made to their son-in-law.

The loan, provided for condominium renovations, lacked formal documentation, and repayment terms were disputed.

The defendant opposed the motion, highlighting credibility issues in the affidavits and the linkage to ongoing family law proceedings where his spouse had agreed to assume part of the debt.

The court dismissed the motion, finding significant conflicting evidence and credibility issues that required cross-examination, which is not permitted under Simplified Procedure Rules for affidavits, making a summary judgment inappropriate.

This endorsement addresses costs following the dismissal of the applicant's habeas corpus application with certiorari in aid.

The Attorney General of Canada (AGC), as the successful party, sought $5,000 in costs, arguing the applicant's arguments lacked merit and necessitated significant expenses, including transcripts.

The applicant contended for no costs or minimal costs, emphasizing the importance of access to justice for habeas corpus.

The court considered the principles from *Wood v. Atlantic Institution (Warden)*, balancing the general rule that costs follow the cause with the need to avoid creating a barrier to accessing habeas corpus.

Applying *Rule 57.01* factors, including complexity and the importance of the issues, the court fixed costs at $5,000, all inclusive, payable by the applicant to the AGC.

The defendant brought a motion to stay an Ontario negligence action arising from injuries allegedly sustained at a hotel in Alberta.

The plaintiffs argued Ontario had jurisdiction simpliciter or alternatively should assume jurisdiction under the forum of necessity doctrine because the Alberta limitation period had expired.

Applying the principles from Club Resorts Ltd. v. Van Breda, the court found no presumptive connecting factors establishing a real and substantial connection to Ontario.

The defendant corporation was domiciled and carried on business in Alberta, and the alleged tort occurred there.

The court held that the expiry of the limitation period in Alberta did not justify invoking the narrow forum of necessity doctrine and stayed the Ontario action.