Howard L. Shankman

The plaintiffs brought a motion to vary a timetable order, seeking leave to set the action down for trial despite unfulfilled mandatory mediation requirements and an extension of the trial set-down deadline.

The defendants opposed, alleging prejudice due to delay and missing documents related to a fraudulent conveyance claim.

The court found that both parties contributed to the delay in procedural steps, particularly regarding mediation and document exchange.

The motion was granted, varying the timetable to set new deadlines for mediation, setting the action down for trial, and for defendants to serve affidavits of documents, as no inordinate delay or actual prejudice to the defendants was established.

This is a costs ruling following a motion where the defendant Sona Construction Limited sought to reduce the amount of security posted with the court.

Sona partially succeeded in reducing the security but not to the extent requested.

Sona sought costs on a partial indemnity basis.

The plaintiff Selectra Inc. argued for no costs due to divided success and issues with the timing of concessions.

The court found the success was mixed and the matter of average complexity, ultimately making no award as to costs.

The moving party, a defendant contractor, brought a motion under section 44 of the Construction Lien Act to reduce the amount of security posted to vacate a claim for lien registered by the responding party subcontractor.

The responding party's lien included a substantial delay claim.

The court reviewed the disputed items, including site supervisor labour, notional equipment rentals, bonding costs, and project management fees, to determine if they were properly lienable.

Finding that certain items like notional rentals, bonding costs, and work not done were not lienable or lacked a reasonable prospect of success, the court ordered the security reduced from $1,372,552.36 to $858,385.78.

The defendants moved to dismiss the plaintiff's action after the plaintiff failed to comply with a prior court order requiring him to pay outstanding costs.

The plaintiff, a self-represented litigant with a history of obstreperous behaviour, had accumulated significant unpaid costs orders and failed to provide any justification for his non-compliance.

The court found that the plaintiff's continued failure to obey court orders constituted wilful defiance and an abuse of process.

The motion was granted, the action was dismissed, and further costs were awarded to the defendants.

The applicant sought leave to appeal an interlocutory order staying his action until he paid outstanding costs orders.

The court reviewed the strict test for leave to appeal under Rule 62.02(4) and found no conflicting decisions or reason to doubt the correctness of the motion judge's order.

The motion judge had properly exercised discretion under Rules 57.03(1) and 60.12, noting the applicant's lack of reasonable explanation for non-payment and the weak merits of the action.

The motion for leave to appeal was dismissed.

The appellant appealed an order staying his action pending the payment of outstanding costs orders.

The respondents argued the order was interlocutory and the appeal route was to the Divisional Court with leave.

The Court of Appeal agreed, finding the order did not determine any substantive matter in the action.

The appeal was quashed for lack of jurisdiction.

In this costs endorsement arising from an estate dispute, the court determined the appropriate scale and amount of costs payable to the successful plaintiffs.

The court found there were no pertinent offers to settle and held that adverse credibility findings against the defendant did not amount to litigation misconduct warranting a costs sanction.

Costs were fixed on a partial indemnity scale in the agreed amount of $35,000, payable within thirty days.

The plaintiffs challenged a late-life will and inter vivos transfers made by a deceased testator suffering from Parkinson’s Disease and Lewy Body Dementia, alleging lack of testamentary capacity and undue influence by the surviving spouse.

After reviewing extensive medical records, expert psychiatric evidence, solicitor evidence, and family evidence, the court found the testator lacked testamentary capacity when the 2007 will was executed and that the will and capital transfers were products of undue influence.

The court held that suspicious circumstances were significant, including marked departures from earlier estate plans, failure to obtain a capacity assessment, and inadequate evidence supporting the asserted financial rationale for disinheriting the sons in substance.

Judgment was granted for the plaintiffs, the third will and impugned transfers were set aside, and the defendant was ordered to return transferred assets to the estate.

Following a trial where the plaintiffs succeeded on liability for nuisance and trespass against a neighbouring trucking company, the Court of Appeal ordered that the plaintiffs recover their costs of the liability portion of the trial, with quantum to be determined by the trial judge.

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 proportionality, indemnity, reasonable expectations of the losing party, complexity, and the hours reasonably expended.

The court rejected arguments that the plaintiffs’ trial preparation time was excessive and accepted that approximately 75% of the trial concerned liability rather than damages.

Applying partial indemnity rates and allocating costs proportionately, the court fixed the recoverable trial costs and apportioned joint and several liability for the trespass portion of the claim.

The defendants brought a motion seeking to stay or dismiss a civil action due to the plaintiff’s failure to pay multiple outstanding costs orders arising from earlier interlocutory proceedings and appeals.

The self-represented plaintiff argued that the costs had been subsumed in a later costs order that was subsequently overturned, but the court found the earlier orders remained valid and enforceable.

The court held that Rules 57.03(2) and 60.12 of the Rules of Civil Procedure permit a stay or dismissal where a party fails to comply with costs orders.

Finding no acceptable justification for non-payment and noting the plaintiff’s vexatious litigation conduct, the court ordered the action stayed pending payment of all outstanding costs and interest.

The defendants were also awarded costs of the motion.

The appellant challenged orders dismissing his civil action arising from alleged new home construction defects and declaring him a vexatious litigant.

The Court of Appeal held that the motion judge misconstrued both the pleading and the statutory scheme under the Ontario New Home Warranties Plan Act by treating the action as a prohibited relitigation of matters already determined by the Tribunal.

Relying on the distinction between Tarion decisions, Tribunal determinations, and surviving civil warranty claims, the court concluded that the pleaded claims related to defects found warranted and were not fully barred by issue estoppel, res judicata, or abuse of process.

The vexatious litigant order was also set aside because it was premised on the erroneous view that the Superior Court action itself was vexatious.

Leave to amend was granted only to the extent previously contemplated for the appellant's own claims, and no costs of the appeal were ordered.

Two subcontractors asserted construction lien claims arising from demolition and abatement work performed on a condominium project.

The owner argued the liens had expired because a certificate of substantial performance had been published following a transition agreement that purported to terminate the original contract and trigger the lien period.

The court held the certificate of substantial performance was invalid because the statutory conditions for substantial performance under the Construction Lien Act were not met and the agreement was inconsistent with the Act’s holdback regime.

The court further held the equipment supplier’s lien was preserved in time, as its rental contract had not been terminated and the supplier had not received the contractual notice required to end supply.

Both lien claims therefore remained valid and recoverable against the statutory holdback.

The appellant challenged a summary judgment determination in a real estate commission dispute, arguing the motion judge improperly exercised the expanded fact-finding powers under revised Rule 20.

The Court of Appeal held that, having regard to the language of the rule and the Supreme Court of Canada's guidance in Hryniak, the motion judge did not err in making the findings necessary to determine the claim.

The central disputed finding, whether the broker showed the property to the purchaser, was characterized as a purely factual issue attracting strong appellate deference.

The appeal was dismissed with costs.

A contractor performing underground garage restoration severed an underground hydro cable while chipping concrete at the entrance to a parking garage.

The property owner withheld payment of certified progress invoices and claimed backcharges for repair costs arising from the incident.

The court held that the contractor was contractually responsible for locating underground utilities and was liable for the repair costs because it failed to obtain a hydro locate that would have prevented the damage.

However, the owner was not entitled to withhold certified payments while awaiting potential claims and was required to pay contractual interest on the delayed invoices.

The contractor’s damages and the owner’s backcharges offset each other, leaving only interest payable.

The plaintiff real estate brokerage brought a motion for summary judgment to recover a 5% commission from the defendant seller.

The defendant sold his property privately to a buyer shortly after the listing agreement allegedly expired, but within the 90-day holdover period.

The defendant argued the listing agreement was invalid due to missing initials for a term exceeding six months and claimed the buyer was not introduced during the listing period.

Applying the Hryniak framework, the court found no genuine issue requiring a trial, held that the listing agreement and holdover clause were valid, and concluded the listing agent had shown the property to the buyer during the listing period.

Summary judgment was granted for the plaintiff.

Following the defendants’ complete success on a summary judgment motion and related application, the court determined the appropriate costs payable by the plaintiff.

The defendant warranty corporation sought substantial indemnity costs but provided no justification, and the court instead awarded partial indemnity costs.

The court reviewed the defendants’ bill of costs and reduced certain counsel fees while allowing reasonable disbursements.

Additional limited costs were permitted for preliminary legal assistance performed by a lawyer who was not solicitor of record, but no costs were allowed for work related to a third party claim.

The plaintiff was ordered to pay specified partial indemnity costs to the successful defendants.

The defendants brought a motion to dismiss or stay an action concerning alleged construction deficiencies in a new home.

The plaintiff had previously pursued warranty claims through the statutory regime under the Ontario New Home Warranties Plan Act and unsuccessfully litigated the issues before the Licence Appeal Tribunal and on appeal.

The court held that the action attempted to relitigate the same warranty issues and was barred by issue estoppel, res judicata, abuse of process, and collateral attack on tribunal decisions.

In addition, the defendants applied for an order declaring the plaintiff a vexatious litigant based on a long history of repetitive and abusive litigation conduct.

The court granted the application and imposed restrictions requiring leave of the court before the plaintiff could commence further proceedings against the defendants.

Following a trial concerning the validity of a conveyance that severed a joint tenancy in residential property, the successful defendants sought costs.

The plaintiffs had attempted to set aside the conveyance on the basis of incapacity and undue influence and also sought rent and occupation rent, while the defendants advanced a counterclaim asserting a trust interest.

The court dismissed the plaintiffs’ claims and the defendants’ counterclaim, leaving the conveyance intact and determining ownership through the deceased’s will.

In the costs endorsement, the court held that the defendants were the successful parties and entitled to costs on a partial indemnity basis.

The court declined to apply the defendants’ Rule 49 offer to settle because it did not correspond precisely with the judgment.

The tenant appellants appealed a Landlord and Tenant Board decision terminating their tenancy and awarding $20,000 in damages to the landlord following a fire.

The appellants argued errors of law regarding the cause of the fire, the validity of the N5 Form, and the damages award.

The Divisional Court found no errors of law regarding the fire's cause or the N5 Form, as these were factual findings.

While the Board may have erred by failing to consider the tenants' repair efforts and not ruling on a roofer's estimate, the Court found ample evidence supported the conclusion that damages exceeded $20,000.

The appeal was dismissed.

A family dispute arose regarding ownership of a Toronto home held in joint tenancy by two parents and their son.

Shortly before his death, the father executed a transfer severing the joint tenancy so that his interest would pass under his will to his daughter.

The plaintiffs challenged the transfer, alleging the father lacked capacity or was subject to undue influence, and sought occupation rent from the daughter who continued living in the property.

The court preferred the evidence of the drafting lawyer and defence expert and found the father understood the nature and consequences of severing the joint tenancy and was not unduly influenced.

The court also rejected claims that the son held his interest in trust for the parents and declined to award occupation rent.

The plaintiffs’ claims were dismissed and the severance of the joint tenancy upheld.