Ian K. Latimer

This is a panel review of a single judge's order refusing an extension of time to appeal a summary trial judgment.

The moving party sought to introduce fresh evidence, which was denied due to lack of satisfactory explanation for its delay and minimal impact on the outcome.

The panel upheld the single judge's decision, finding no error in principle or misapprehension of material evidence in applying the test for extending time to appeal.

The panel agreed that the moving party had not formed an intention to appeal within the prescribed time and that the proposed grounds of appeal lacked merit.

The review motion was dismissed.

The defendant, Lawyers’ Professional Indemnity Company (LPIC), brought a motion seeking an order for enforcement costs against the third parties, Malkit Mangat and Jujhar Mangat, on a partial indemnity scale, totaling $51,749.39.

LPIC argued that Rule 60.19(1) of the Rules of Civil Procedure, read with Section 131(1) of the Courts of Justice Act, allowed for the recovery of all reasonable enforcement costs, including those related to settlement efforts, bankruptcy proposals, and a fraudulent conveyance action.

The third parties contended that Rule 60.19(1) is exhaustive, limiting recoverable costs to only those items specifically enumerated.

The court agreed with the third parties, finding that Rule 60.19(1) provides an exhaustive list of recoverable enforcement costs and that the phrase "unless the court orders otherwise" grants discretion over recoverability of listed items, not open-endedness.

Consequently, LPIC's principal request for fixed costs was denied, and the motion was dismissed, except for the alternative request to refer allowable costs (limited to those explicitly delineated in Rule 60.19(1)) to an Assessment Officer.

The appellant appealed from an order of the Superior Court of Justice dismissing two related proceedings and striking out his statement of defence in a third proceeding arising from an aborted real estate transaction in 2004.

The appellant had accumulated multiple costs orders and failed to meet a 60-day deadline to pay outstanding costs.

The Court of Appeal allowed the appeal on the condition that the appellant pay all outstanding costs within 30 days, finding that dismissal without notice to the appellant regarding one of the actions was improper and that a trial on the merits was preferable.

The plaintiff, Sound Solutions, brought a summary judgment motion for breach of contract against Cladit Siding Solutions Inc. for unpaid invoices for construction panels, and for breach of trust against Cladit and Gregory Bell.

Cladit sought an equitable set-off for alleged panel deficiencies and damages from a counterclaim for intentional interference in contractual relations, loss of reputation, and punitive damages.

The court granted partial summary judgment to Sound Solutions for the breach of contract claim, allowing a set-off of $2,340 for costs incurred to remediate colour deficiencies, but dismissed the set-off for panel size and the counterclaim.

The breach of trust claim and Cladit's counterclaim were ordered to proceed to trial due to unresolved credibility issues and lack of cogent evidence for damages.

The defendants brought a motion for leave to appeal an order that dismissed their motion to set aside earlier trial management orders.

The defendants argued the earlier orders should be set aside due to a reasonable apprehension of institutional bias, as the judge who made them was the supervising judge for deputy small claims judges in the region, and the plaintiff's counsel was a deputy judge.

The motions judge had dismissed the motion on the basis of issue estoppel.

The court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's order because he failed to consider Rule 59.06, and concluding that the issue of institutional bias in these circumstances is a matter of general importance to the administration of justice.

The defendants brought a motion for leave to appeal an order that dismissed their motion to set aside two trial management orders.

The defendants argued that the original judge who made the trial management orders later recused himself due to a reasonable apprehension of bias, as he was the supervising judge of deputy small claims judges and the plaintiff's counsel was a deputy small claims judge.

The motions judge dismissed the motion to set aside on the basis of issue estoppel, finding the Divisional Court had already dealt with the bias issue.

The court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's order because he failed to consider Rule 59.06, and finding the issue of institutional bias to be a matter of general importance.

The moving party sought to set aside two earlier Superior Court orders on the basis of a reasonable apprehension of bias, alleging that the judge who issued the orders should have recused himself due to a supervisory relationship with opposing counsel, who served as a deputy judge in the region.

The court held that it lacked jurisdiction to revisit the issue because the bias allegation had already been raised and determined in prior proceedings before the Divisional Court and in a motion for leave to appeal to the Court of Appeal.

Applying the doctrine of issue estoppel, the court found the matter could not be relitigated.

The court also refused the moving party’s request to amend pleadings where doing so would contradict an earlier order defining the issues for trial.

A judgment creditor brought a garnishment motion alleging that the garnishee and its principal knowingly contravened notices of garnishment by continuing to pay salary to a judgment debtor while falsely stating no employment relationship existed.

Evidence showed the garnishee entities continued paying the debtor for management services despite service of garnishment notices and filed inaccurate garnishee statements.

The court found the payments constituted wages subject to garnishment and that the garnishee ought to have remitted the statutory portion to the sheriff.

Given the deliberate misrepresentations and the integrated business structure, the court pierced the corporate veil to impose personal liability on the principal.

Judgment was granted for the garnishable portion of the wages together with interest and substantial indemnity costs.

In an estates dispute between brothers following their mother’s death, the applicant obtained an order without notice requiring the respondent to accept or refuse appointment as estate trustee under an earlier will.

The court found that the order had been obtained without notice and with material non-disclosure, including the existence of a contested passing of accounts application and a later will.

Because the judge who granted the initial order had not been informed of these material facts, the court held that the order could not stand.

The without-notice order was therefore set aside and costs were awarded against the applicant.

Costs decision following a successful application for a passing of accounts in an estate matter.

The court reaffirmed that the modern approach to estate litigation costs applies the general civil litigation principle that the loser pays, subject to Rule 57 and limited exceptions.

The respondent rejected a reasonable Offer to Settle and conducted the litigation in a manner that unnecessarily complicated a relatively straightforward estate dispute.

As a result, the court ordered partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

Additional reimbursement was also ordered for an unnecessary banking expense debited from the estate account.

The applicants and respondents are trustees of a religious corporation.

The applicants signed a petition alleging improprieties by the board.

In response, the respondent trustees initiated show cause hearings to terminate the applicants' membership in the corporation.

The applicants sought an order declaring these actions unlawful.

The court granted the application, finding that the respondents acted in bad faith by using the membership termination process for the oblique purpose of removing the applicants from the board of trustees, which could only be done for lack of attendance under the bylaws.

Following a successful motion by the defendants to set aside a default judgment, the court determined the appropriate costs consequences.

The defendants sought partial indemnity costs for the motion, while the plaintiff sought substantial indemnity costs for steps rendered wasted by the defendants’ earlier default as well as costs of the motion.

Applying Rules 19.08, 57.01, and 57.03 of the Rules of Civil Procedure, the court held that a fair and reasonable approach was to offset the competing costs claims.

The defendants were awarded reduced partial indemnity costs for the motion, while the plaintiff received costs thrown away arising from earlier procedural steps.

The court ordered the plaintiff to pay the net amount after set-off.

The moving party defendants sought to set aside a default judgment obtained by the plaintiff after the defendants were noted in default and their statement of defence had been struck for failing to deliver affidavits of documents.

The defendants argued they lacked notice of the earlier motion striking the defence, acted promptly to challenge the judgment, and possessed a viable defence on the merits.

The court held that while the plaintiff had established a sufficient evidentiary basis for the original default judgment, the defendants raised a reasonably plausible explanation for their absence and demonstrated a potentially arguable defence.

Balancing the interests of justice and potential prejudice to both sides, the court concluded the matter should proceed on its merits.

The default judgment and prior order striking the defence were set aside subject to terms preserving existing execution and trust funds as security.