Heather J. Williams

This is a costs endorsement from the Court of Appeal for Ontario following an appeal from a Superior Court decision.

The appellant sought costs in the court below.

The respondent made no submissions on the costs issue.

The Court of Appeal fixed costs at $12,500, inclusive of disbursements and all applicable taxes, payable to the appellant within 30 days.

The plaintiff sued the estate of a deceased priest and a Roman Catholic Episcopal Corporation for damages arising from sexual assault.

The corporation cross-claimed against the estate for contribution and indemnity.

The motion judge applied section 18 of the Limitations Act, 2002, finding the two-year limitation period ran from service of the plaintiff's claim on the corporation.

The estate appealed, arguing section 38(3) of the Trustee Act applied, with the limitation period running from the priest's death.

The Court of Appeal allowed the appeal, holding that section 38(3) of the Trustee Act applies to cross-claims and prevails over section 18 of the Limitations Act, 2002 by virtue of section 19(4) of the Limitations Act, 2002.

The cross-claim was statute-barred.

The defendants sought costs following a motion regarding a sealing order and restricted production of a document.

The court found that the plaintiff acted unreasonably by refusing to consider an informal proposal and a formal offer to settle that mirrored the eventual order.

The court awarded the defendants costs fixed at $5,000 on a partial indemnity basis from the date the informal proposal was made.

During the second week of a medical malpractice trial, the defendant physician sought leave to bring a motion for summary judgment to dismiss the claim against him.

The court dismissed the motion for leave, finding that the defendant failed to provide a satisfactory explanation for the delay, the motion would unduly delay the ongoing trial, and there was insufficient evidence that a summary judgment motion would be a proportionate or cost-effective alternative to continuing the trial.

The plaintiff in a medical malpractice action brought a motion at trial to prohibit the defendant physicians from advancing theories of failure to mitigate and break in the chain of causation, arguing lack of prior notice.

The plaintiff contended that the defendants failed to update an undertaking given at discovery regarding mitigation.

The court dismissed the motion, finding that the plaintiff had adequate notice of the defence theories through the statement of defence, an expert report, and the defendants' pre-trial conference memorandum.

The court held that it would be fundamentally unfair to preclude the defendants from relying on these theories and that the trial remained fair to the plaintiff.

During a medical malpractice trial, the plaintiff objected to the defendants' opening statement, arguing lack of notice regarding certain defences.

The defendants brought a cross-motion seeking leave to file an excerpt from their pre-trial conference memorandum to prove notice was given.

The court considered the prohibition on communicating pre-trial conference statements under Rule 50.09 of the Rules of Civil Procedure.

Applying Rule 2.03, the court found it was in the interests of justice to dispense with the prohibition and permit the defendants to file the excerpt solely to address the issue of notice.

This endorsement addresses the issue of costs following the successful motions by the defendants, Jim Egalite, Jonathan Collings, and Stephane Langlois, to dismiss the plaintiffs' actions against them.

The court found the defendants' requested partial indemnity costs to be very reasonable, considering their complete success and the absence of a legal basis for the claims.

The plaintiffs were ordered to pay specific amounts to each successful defendant.

Following a motion regarding the application of the Limitations Act, the successful respondent sought partial indemnity costs of $12,437.54.

The moving party had tendered a bill of costs for $13,390.00.

Noting that the respondent's position evolved during the motion and questioning the 48 hours docketed by junior counsel, the court fixed the respondent's costs at $6,500 plus disbursements and HST, payable by the moving party estate.

The plaintiff corporation sought a sealing order and a 'counsel eyes only' order for a 34-page document containing sensitive financial information.

The document had previously been disclosed to the individual defendant during family law proceedings involving the plaintiff's principal.

The court granted the sealing order to protect the plaintiff's commercial interests and the integrity of the government procurement process.

On consent, the corporate defendant was denied access to the document.

However, the court refused to deny the individual defendant access, finding that he needed to see the document to ensure trial fairness and to respond to the plaintiff's allegations.

The plaintiffs sued three lawyers who represented them in a condominium purchase, alleging negligence for failing to rescind the transaction after the plaintiffs discovered water damage upon taking possession.

The defendant lawyers brought motions to strike the claim under Rules 21.01(1)(b) and 21.01(3)(d).

The court found that the plaintiffs failed to plead any material facts establishing a breach of the standard of care or causation of damages, as a completed real estate transaction cannot be unilaterally rescinded without the vendor's consent.

The court struck the claims against the three lawyers without leave to amend, finding them frivolous, vexatious, and disclosing no reasonable cause of action.

This endorsement from a Trial Management Conference outlines the procedural orders made to schedule the trial and subsequent pre-trial steps.

The trial is scheduled for October 16, 2017, for six to eight weeks.

Orders include deadlines for circulating a draft Statement of Defence, cross-examination of a witness, a further mediation, and the delivery of expert reports on solicitor negligence and damages by both the plaintiff and defendants.

A further Trial Management Conference is adjourned to April 10, 2017, to review the status.

The plaintiff moved to compel the defendant to produce three categories of documents: employment applications of successful candidates, assessment notes for successful applicants, and remuneration details for successful applicants.

The defendant resisted on grounds of relevance, privacy, and proportionality.

The court found the documents relevant to the plaintiff's claim of being blacklisted and wrongfully denied re-employment.

While acknowledging privacy concerns, the court ordered production of application packages and assessment documents for successful candidates, subject to the deemed undertaking and potential confidentiality orders.

However, the court limited the production of remuneration documents to aggregated benefit information, finding individual payroll histories disproportionate.

The defendants brought a motion for further security for costs in two related actions involving corporate and foreign plaintiffs alleging ownership of certain inventions.

The court held that entitlement to security for costs had already been determined in an earlier order and that the only remaining issues were the appropriate form and quantum of additional security.

The plaintiffs proposed an undertaking rather than posting funds, but the court rejected this form of security due to the risk that an Ontario costs award might not be enforceable in Oregon because of potential sovereign immunity.

Assessing the anticipated costs of a lengthy and complex trial, the court fixed additional security at $585,000.

The plaintiffs were ordered to post the security by irrevocable letter of credit or by payment into court.

The appellants appealed a Master’s decision dismissing their motion to remove opposing counsel due to an alleged conflict of interest arising from a prior limited solicitor‑client interaction.

The appellants also appealed the Master’s costs award.

The court held that the Master committed no palpable and overriding error in finding that any privilege in a legal invoice had been waived and that the earlier retainer was not sufficiently related to the present dispute to justify removal of counsel.

The court further held that the lawyer’s potential role as a witness was speculative and did not justify disqualification.

The appeal and the challenge to the costs award were dismissed.

A lawyer sought leave to appeal a costs endorsement ordering him to personally pay a portion of the applicant’s costs under Rule 57.07 of the Rules of Civil Procedure.

The moving party argued the costs judge failed to apply the proper two‑part test for personal costs orders against counsel, failed to provide adequate reasons, and denied procedural fairness by not allowing independent submissions from counsel facing potential personal liability.

The court reviewed the stringent requirements governing costs awards against lawyers, including the need for extreme caution and prior notice to the lawyer.

It concluded there were arguable grounds that the costs judge erred in exercising discretion and in failing to permit the lawyer to respond personally.

Leave to appeal the costs endorsement was therefore granted.

Following a discovery-related motion concerning production of documents and claims of solicitor‑client privilege, the defendant sought costs exceeding $55,000 on a partial indemnity basis.

The plaintiff, who was self‑represented, had largely failed on the underlying motion, obtaining production of only one document and clarification of indexing in the affidavit of documents.

Applying the factors under Rule 57 of the Rules of Civil Procedure, including success, proportionality, and the reasonable expectations of the losing party, the court concluded the amount sought was excessive.

The court reduced the recoverable fees to $25,000 plus HST and limited disbursements.

Costs were ordered payable in any event of the cause.

The defendant brought a motion for security for costs in an action arising from the sale of a mortgaged property following default.

The plaintiff estate alleged improper conduct in the mortgage enforcement process and sought damages against the mortgagee’s lawyer, the purchaser, and another defendant.

The court found the estate had no assets, the litigation was effectively directed by non‑party foreign residents, and the merits of the claims appeared weak with significant doubts about proof of damages.

Applying Rule 56.01 of the Rules of Civil Procedure, the court held that there was a substantial risk the defendants would be unable to recover costs if successful.

Security for costs was therefore ordered.

The defendant lawyer brought a summary judgment motion dismissing a negligence action as statute‑barred under the Limitations Act, 2002.

The plaintiffs alleged they intended to acquire a 50 percent ownership interest in a corporation but instead obtained only 49 percent, and argued the limitation period was delayed because they believed the lawyer would resolve the issue.

The court held the claim was discovered when the plaintiff became aware of the altered share structure and contemplated legal action, as evidenced by contemporaneous emails.

Statements discouraging litigation or attempts to resolve the matter did not prevent the limitation period from running.

The action commenced more than two years later was therefore barred.