Ivan S. Bloom

Following dismissal of the main action and the third party claim, the court determined costs among the parties.

The plaintiff argued that the defendant’s costs should be reduced due to inadequate documentary production and the calling of allegedly irrelevant witnesses.

The court rejected most of these objections but applied modest deductions for fairness.

Applying Rule 57.01(1) of the Rules of Civil Procedure and considering the complexity of the expert engineering evidence, the court applied a 65% partial indemnity factor rather than the typical 60%.

The plaintiff was ordered to pay partial indemnity costs to both the defendant and the third party.

The plaintiff sued the defendant municipality for damages after a retaining wall on the plaintiff's property collapsed.

The plaintiff alleged the municipality negligently approved the wall's design and failed to follow a third-party engineer's recommendation to conduct a complete visual inspection.

The court dismissed the action, finding the plaintiff failed to prove the existence of an agreement that would create a duty of care regarding the wall's design.

Furthermore, the municipality's prior inspection and repair of the wall constituted a gratuitous undertaking, and there was no detrimental reliance by the plaintiff to ground liability.

The court convened a clarification hearing concerning an earlier family law endorsement dealing with parenting time and interim support.

The issues were the detailed timing and logistics of two weekly periods of unsupervised access, the holiday and summer schedule, and the duration of the suspension of interim child support and s. 7 expenses.

The court replaced portions of the earlier endorsement with detailed terms governing weekday, weekend, summer, birthday, Thanksgiving, and Christmas access.

The suspension of support and s. 7 payments was limited to April 1, 2015 through June 30, 2015, after which payments were to resume, without disturbing prior adjustment provisions for 2014.

No costs were ordered.

The moving party brought a motion to strike a solicitor's affidavit filed in support of an estates motion.

The moving party argued the affidavit was an improper use of a solicitor's affidavit, contained scandalous and vexatious material, and breached settlement privilege.

The court dismissed the motion, finding the affidavit was properly used to provide non-contentious background facts, did not contain scandalous material, and that any potential settlement privilege issues were too intertwined with non-privileged material to be struck at this stage.

The moving defendants sought to strike the statement of claim against them under Rule 21.01(1)(b) in an action arising from unpaid engineering invoices relating to a power generation project.

The plaintiff advanced unjust enrichment against parties that had contracted with an intermediary defendant, but the court held the pleaded contracts constituted valid juristic reasons for the alleged enrichment.

The court rejected the submission that breach of contract would make the enrichment manifestly unjust for pleading purposes and found no basis to add a new allegation of contractual invalidity.

The claim against the moving defendants was struck without leave to amend, with partial indemnity costs.

The plaintiff brought an urgent motion arising from allegations that the defendant defrauded him of $186,000 through an altered bank draft provided in a condominium purchase transaction.

The court granted substituted service by e-mail, leave to issue a certificate of pending litigation, and interim relief restraining the defendant from encumbering, damaging, or dealing with the condominium unit pending a further hearing.

The court also ordered plaintiff's counsel to have sole keyed access to the unoccupied unit, subject to the plaintiff's undertaking to pay damages.

Costs were reserved.

On cross-motions between spouses, the court determined interim parenting and possession issues concerning two children and the matrimonial home.

The court held that the children's best interests favoured interim sole custody remaining with the father, with the children continuing to reside with him in the matrimonial home.

Interim exclusive possession of the matrimonial home was also granted to him until trial.

The request to order sale of the home and the request for interim child support were refused, and costs were reserved to the trial judge.

The plaintiff moved for summary judgment to recover monies paid to the Canada Revenue Agency for source deductions and HST arising from a sole proprietorship operated in her name, and also sought dismissal of the defendant's counterclaim.

The parties had been in a common law relationship and disputed whether there was an oral agreement requiring the defendant to pay the tax liabilities of the business.

The court held that the record contained disputed evidence and required credibility findings that could not be made on a summary judgment motion.

The court also held that the counterclaim was properly brought under the Rules of Civil Procedure because the family property provisions of the Family Law Act do not apply to common law spouses.

The motion was dismissed, with costs in the cause.