Ian N. McLean

The plaintiff moved for leave to deliver and file a Fresh as Amended Statement of Claim to add the Ottawa Police Services Board as a defendant and expand on allegations against the RCMP.

The defendants opposed the amendment and alternatively moved to strike portions of it for disclosing no reasonable cause of action.

The court granted leave to amend the claim, finding no non-compensable prejudice to the defendants.

However, the court struck several paragraphs of the proposed amended claim, including a statute-barred claim against the police board and Charter claims unsupported by pleaded facts, while allowing claims for negligent investigation and harassment to proceed.

Following a substantive decision under the Substitute Decisions Act, 1992 appointing family members as guardians of an incapable adult, the court determined costs arising from competing guardianship applications.

The successful parties sought elevated costs due to the applicant’s conduct in initiating and pursuing the litigation.

The court held that costs in SDA proceedings follow the general civil litigation principles under s.131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure.

Finding the applicant’s conduct precipitous, belligerent, and motivated by collateral dissatisfaction with estate arrangements rather than concern for the incapable person’s welfare, the court ordered costs on a substantial indemnity basis.

Fixed costs were awarded to the successful parties, payable by the unsuccessful applicant.

The applicant brother brought an application to be appointed as the sole guardian of property and personal care for his sister, who has significant cognitive and developmental limitations.

The respondent mother and sister brought a counter-application seeking joint guardianship.

The court found the sister incapable of managing property and personal care.

After reviewing the history of care and the conduct of the parties, the court dismissed the applicant's application and appointed the mother and sister as joint guardians, finding it was in the incapable person's best interests to remain in the care of her mother with a transition plan to her sister.

The applicant brother brought an application to be appointed the sole guardian of property and personal care for his developmentally disabled sister.

The respondent mother and sister brought a counter-application seeking joint guardianship.

The court found the sister incapable of managing property and personal care.

Applying the best interests test under the Substitute Decisions Act, the court dismissed the brother's application, finding he acted in bad faith and was motivated by financial interests.

The court appointed the mother and sister as joint guardians, noting the mother's lifelong devotion to the incapable person's care.

The appellants, previously declared vexatious litigants, appealed the assessment of costs ordered following the dismissal of their application for leave to commence an action under the Road Access Act.

They failed to attend the assessment and had not filed objections under Rule 58.10 of the Rules of Civil Procedure before appealing.

The court held that although the appellants had not followed the proper procedure and had filed an inadequate record, the notice of appeal was filed within the seven-day period and the certificate of assessment had been issued immediately, preventing the objection process contemplated by the Rules.

Relying on Rule 2.01, the court dispensed with strict compliance with the Rules to permit the appellants an opportunity to participate in a new assessment.

The matter was remitted to the assessment officer to schedule a new assessment of costs.

Following the defendant’s successful summary judgment motion in a commercial dispute, the court determined the appropriate costs award.

The successful party sought more than $164,000 in costs relying on a prior offer to settle, or alternatively $141,852.34 on a partial indemnity basis.

The court considered Rule 57.02 factors including the amount claimed, complexity of the proceedings, the plaintiff’s conduct in prolonging the litigation, and the requirement that costs be fair and reasonable.

Although the plaintiff’s conduct contributed to delay and the defendant’s offer to settle was relevant, the court found the hours claimed excessive and reduced the award.

Costs were fixed globally at $100,000 inclusive of HST and disbursements.

The defendant brought a motion for summary judgment dismissing the plaintiff’s claim for damages arising from the termination of a propane supply relationship and seeking judgment on a counterclaim for unpaid invoices.

The dispute centered on whether negotiations following the expiry of earlier agreements resulted in a binding contract and whether promissory estoppel or bad faith negotiations could support the plaintiff’s claim.

The court held that the plaintiff’s December 6, 2001 letter constituted a counter-offer that rejected the defendant’s earlier proposal, eliminating any ability to later accept it.

The court further found no evidence establishing promissory estoppel or any pleaded claim based on a duty of good faith in negotiations.

Summary judgment was appropriate in this document-driven case, the plaintiff’s claim was dismissed, and judgment was granted to the defendant on its counterclaim for unpaid gas supplied.