Howard A. Shankman

Following the dismissal of a motion for summary judgment concerning the validity of a transfer of property from joint tenants to tenants in common, the court addressed costs.

The motion had been dismissed after the court determined that significant factual disputes required viva voce evidence and the parties did not consent to the judge continuing to hear the matter after a settlement conference.

The court found that the plaintiffs’ request for recusal contributed to the motion being dismissed prior to final adjudication, but also noted that both parties had initially urged the court to determine the motion without oral evidence.

In the unusual circumstances, the court ordered that each party bear its own costs, while reserving certain preparatory costs related to trial for determination by the trial judge.

The plaintiffs sought costs following the withdrawal of a defendant’s counterclaim and cross‑claim asserting entitlement to property through a constructive trust.

The counterclaim had expanded the scope and financial stakes of the litigation concerning ownership of residential property and required additional legal work by the plaintiffs’ counsel.

Applying the factors under Rule 57.01 of the Rules of Civil Procedure, the court held that the plaintiffs were entirely successful in having the counterclaim withdrawn and that the claim lacked merit.

The court awarded costs on a substantial indemnity basis, finding that approximately 25 hours of counsel time reasonably related to responding to the counterclaim.

Costs of $7,585 plus HST and disbursements were fixed.

The plaintiffs brought a motion for summary judgment.

After hearing submissions, the court determined that significant factual disputes required resolution through viva voce evidence tested by cross‑examination.

The judge indicated that oral evidence would be required under Rule 20.04(2.2) of the Rules of Civil Procedure to properly determine whether a genuine issue requiring a trial existed.

The plaintiffs raised concerns about the judge hearing viva voce evidence after previously conducting a settlement conference in the matter.

As the parties did not mutually agree that the same judge should hear the oral evidence, the motion for summary judgment was dismissed.

The plaintiffs brought a motion to set aside a transfer of real property that severed a joint tenancy, which would otherwise determine whether the deceased’s interest passed through survivorship or through his estate.

The parties urged the court to treat the matter as suitable for summary judgment based solely on the written record.

The court held that the motion record revealed significant factual disputes, including conflicting evidence from witnesses and potential credibility issues.

Relying on appellate guidance regarding the limits of summary judgment where a full appreciation of evidence is required, the court concluded that viva voce evidence was necessary.

The court ordered that specified witnesses provide oral evidence with limited cross-examination to facilitate a fair determination.