James F. Diamond

Following the dismissal of a civil action on summary judgment, the successful defendant sought costs on a partial indemnity basis.

The court considered the defendant’s bill of costs, the conduct of the plaintiff during the litigation, and the principles governing costs under Rule 57.01 of the Rules of Civil Procedure.

The plaintiff challenged the fairness of the earlier decision and disputed the hours billed by defence counsel.

The court held that costs generally follow the event and that the rates and hours claimed were largely reasonable.

Costs of the action, including the summary judgment motion, were fixed at an all-inclusive amount of $30,000.

The defendant municipality brought a motion for summary judgment dismissing the plaintiff’s negligence action arising from a motor vehicle accident, arguing the claim was commenced outside the two‑year limitation period under the Limitations Act, 2002.

The plaintiff argued the claim against the municipality was not discoverable until receipt of a police accident report revealing potential roadway maintenance issues and identifying the proper municipal authority.

The court held the plaintiff failed to rebut the statutory presumption of discoverability and did not exercise reasonable diligence in identifying potential defendants, noting a 17‑month delay in obtaining the accident report.

The action was therefore statute‑barred.

The court also found that commencing a second action rather than seeking to amend the existing action to substitute the proper municipality constituted an abuse of process.

A long‑term employee brought a motion for summary judgment in a wrongful dismissal action after nearly 39 years of service.

The court determined the employee’s position at termination remained a middle‑management role despite internal restructuring.

Applying the Bardal factors, including the employee’s age, lengthy service, and managerial character of employment, the court fixed the reasonable notice period at 24 months.

The employer failed to establish that the employee had not made reasonable mitigation efforts.

However, the court held the employee was not entitled to further incentive payments under the employer’s short‑term incentive plan because the plan required active employment at the payout date.

Following a prior trial decision and endorsement directing the parties to finalize draft orders expeditiously, counsel for the applicants forwarded draft orders to opposing counsel for approval as to form and content.

No response was received from counsel for the opposing party despite the court’s direction.

After reviewing the draft orders prepared by the applicants’ counsel, the court made a minor revision and signed both orders.

The signed orders were directed to be circulated to counsel together with the endorsement.

At a case conference involving three related civil actions with overlapping pleadings and defendants, the court addressed procedural disorganization arising from the commencement of multiple actions rather than amendment of an existing claim.

The court noted significant factual overlap between the claims and anticipated that consolidation or a fresh amended statement of claim might ultimately be required.

As case management judge, the court imposed directions governing future motions, service of materials, and communication between the self-represented plaintiff and defence counsel.

The court also scheduled a further case conference and authorized service by email on specific defendants.

A charitable organization brought a motion for summary judgment alleging fraud and breach of fiduciary duty by a founding director who managed its day‑to‑day operations.

The evidence showed a scheme involving fabricated invoices, unauthorized expense reimbursements, and payments to related parties and vendors for personal benefit.

Applying the summary judgment framework articulated in Hryniak v. Mauldin, the court found there was no genuine issue requiring a trial and that the evidentiary record permitted a fair determination.

The defendant’s admissions and documentary evidence demonstrated extensive misappropriation of funds through multiple categories of false expenses.

The court granted summary judgment and ordered repayment of $697,237 plus pre‑judgment interest.

The plaintiff brought a negligence action seeking damages arising from the alleged mishandling of his application for a professional engineering licence by the provincial regulator.

The defendant moved for summary judgment dismissing the claim.

The court held that the regulator did not owe a private law duty of care to an individual applicant in the circumstances, given the statutory framework and the public‑interest mandate of the regulatory body.

The governing statute also contained a good‑faith immunity provision indicating legislative intent not to impose such liability.

In any event, the record disclosed no evidence of bad faith in the processing of the licensing application.

The moving defendants sought summary judgment dismissing claims arising from a motor vehicle collision allegedly caused by a boulder connected to landscaping work at neighbouring residential properties.

The plaintiff pursued liability based on private nuisance, public nuisance, and the rule in Rylands v. Fletcher after conceding other pleaded claims.

The court held that private nuisance does not apply to personal injury or damage to personal property, and that the alleged temporary presence of the boulder on the roadway did not satisfy the public interest element required for public nuisance.

The court further found that ordinary residential landscaping work is not a non-natural use of land for purposes of the Rylands v. Fletcher rule.

Summary judgment was granted and the claims against the moving defendants were dismissed.

Following a trial decision dismissing a claim for a beneficial ownership interest in residential property, the unsuccessful claimant filed a notice of appeal and sought to prevent the release of sale proceeds pending appeal.

The moving party argued that an automatic stay applied under Rule 63.01(1) of the Rules of Civil Procedure or, alternatively, requested an interim stay while seeking relief from the Court of Appeal.

The court rejected the argument that the order constituted a payment of money subject to an automatic stay, relying on appellate authority distinguishing the release of trust funds from a money judgment.

Nevertheless, the court granted a limited interim stay to permit the moving party to bring a stay motion before the Court of Appeal.

The interim stay was restricted to 50% of the sale proceeds and was conditional on the appeal motion being argued by a specified deadline.

The tenant brought an urgent motion seeking relief from forfeiture after the landlord terminated a commercial lease and re-entered the premises due to substantial rent arrears.

The tenant had ceased paying rent for several months and significant arrears had accumulated, though the tenant alleged the premises had serious deficiencies and that the parties had been engaged in ongoing lease renegotiations.

The court applied the equitable principles governing relief from forfeiture under the Commercial Tenancies Act and Courts of Justice Act, considering the tenant’s conduct, the gravity of the breach, and the surrounding circumstances.

Although the tenant’s failure to pay rent weighed against relief, the court granted interim relief from forfeiture on strict terms requiring substantial payment of rent arrears and ongoing compliance with the lease.

The matter was adjourned for further determination on whether the relief should continue on an interlocutory basis pending trial.

Unit owners operating food court businesses in a commercial condominium brought an application under the Condominium Act seeking declarations, damages, and oppression remedies regarding the allocation of common expenses and enforcement of exclusive-use provisions.

The court interpreted the condominium declarations and held that waste disposal for common elements, including a food court seating area subject to exclusive use, remained a common expense payable by all unit owners.

The applicants had therefore been overcharged since 2012 and were awarded damages representing their share of improperly allocated waste disposal costs.

The court also ordered the corporation to enforce a designated-use provision protecting one applicant’s exclusive right to sell dim sum but rejected allegations of oppressive conduct by the condominium corporation.

Costs were left for further submissions.

Following the granting of summary judgment dismissing the action as statute‑barred under the Limitations Act, 2002, the defendant physician sought costs of both the summary judgment motion and the action.

The self‑represented plaintiff argued that no costs should be awarded and that he should instead be compensated for expenses incurred responding to the motion.

The court reaffirmed the principle that costs generally follow the event and applied the factors under Rule 57.01 of the Rules of Civil Procedure.

Finding the defendant’s legal fees and disbursements reasonable, including discovery transcript expenses, the court fixed partial indemnity costs for both the motion and the action.

The plaintiff brought a motion seeking to preclude the defendants from advancing certain grounds in a second summary judgment motion that largely repeated arguments previously rejected by another motions judge.

The defendants argued that a renewed motion was justified in light of the Supreme Court of Canada’s clarification of the summary judgment framework in Hryniak v. Mauldin.

The court held that Hryniak applies retroactively and does not permit parties to reopen prior summary judgment determinations where appeal routes have been exhausted.

The court also found that issue estoppel and abuse of process barred relitigation of the same issues, particularly where the alleged “new” evidence had been available at the time of the first motion.

The plaintiff’s motion was granted, limiting the scope of the defendants’ pending motion for summary judgment.

The plaintiffs moved for summary judgment to recover the balance of a purchase price under an asset purchase agreement for valve-related business assets.

The defendants alleged contractual ambiguity, misrepresentation, and unilateral mistake relating to the valuation of slow-moving inventory and argued that the purchase price should have been reduced.

The court held that the agreement unambiguously required valuation of inventory at the plaintiffs’ cost as verified through a joint count at closing, which the defendants’ representative confirmed in writing.

The defendants failed to produce evidence supporting their valuation or their representative’s position and attempted to retrospectively alter the agreed contractual process.

Finding no genuine issue requiring a trial, the court granted summary judgment to the plaintiffs.

The defendant physician moved for summary judgment dismissing a medical malpractice action arising from the removal of surgical staples following knee surgery.

The plaintiff alleged the doctor negligently broke a staple during removal, causing pain and infection.

The court held the claim was discovered in 2011 when the plaintiff believed the procedure had been performed improperly and sought medical treatment, triggering the two‑year limitation period under the Limitations Act, 2002.

Because the action was commenced in October 2014, it was statute‑barred.

The court further held that the plaintiff’s failure to produce expert medical evidence on the standard of care and causation independently justified summary judgment.

The appellant appealed a decision of the Property Standards Committee confirming a municipal Order to Comply issued under the Toronto Municipal Code in relation to a residential property.

The order required remediation of unsanitary and hazardous conditions including accumulation of waste, structural disrepair, and obstruction of passageways associated with hoarding and animal contamination.

After a trial de novo with viva voce evidence, the court accepted the evidence of municipal officials regarding the property's unsafe and unsanitary condition and rejected the appellant’s allegations of municipal conspiracy and improper inspection.

The court held that the amended order sufficiently particularized the required remedial work and was justified under property standards enforcement.

The decision confirming the order was upheld, though the City was directed not to commence remedial work until after December 1, 2015 to allow the appellant time to preserve items he claimed were evidentiary for potential litigation.

Following summary judgment dismissing the plaintiff’s action and granting judgment to the defendant, the court determined costs of the action.

The successful defendant sought $100,000 in costs plus disbursements despite claiming substantially higher partial and full indemnity costs.

The court applied Rule 57.01 of the Rules of Civil Procedure and emphasized proportionality, fairness, and access to justice.

The court found the defendant’s claimed hourly rates and time dockets excessive relative to the moderate complexity of the case and the simplified procedure under which it proceeded.

Costs were fixed in a reduced all-inclusive amount payable by the plaintiff.

The court considered whether an interim injunctive order granted during an adjournment of an application remained in effect after the application did not proceed on the scheduled return date.

The applicant had obtained an adjournment to conduct cross-examinations on affidavit evidence but failed to conduct the cross-examination and failed to file the necessary confirmation for the rescheduled hearing.

The court held that the interim injunction was granted on strict terms tied to the adjournment and anticipated cross-examination.

Because those conditions were not fulfilled and the application did not proceed, the basis for the interim relief no longer existed.

The court confirmed that the interim injunction expired on the scheduled return date but allowed the applicant to seek further interim relief in a future appearance.

Following a summary judgment decision awarding damages for conversion, the plaintiff requested clarification regarding unresolved claims for unjust enrichment and punitive damages.

The court held that the unjust enrichment claim had been pleaded only as an alternative to conversion and therefore did not require adjudication once conversion was established.

The court acknowledged that the prior reasons failed to address the punitive damages claim and considered it in this supplementary endorsement.

It concluded that the defendants’ conduct did not meet the exceptional threshold required for punitive damages.

The claim for punitive damages was therefore dismissed.

An application under the Partition Act sought partition and sale of a residential property jointly owned by three registered owners, while a related application alleged that one owner held her one-third interest in trust or constructive trust for another family member who had contributed financially to the property.

The court found no evidence of an express trust and held that the claim was barred by the Statute of Frauds.

The constructive trust claim also failed because the alleged contributor’s payments were analogous to rent and did not establish unjust enrichment or a causal link warranting a proprietary remedy.

As a co-tenant, the moving party had a prima facie right to partition and sale, and the hardship of relocation did not amount to oppression sufficient to deny that right.

The court ordered partition and sale of the property with accounting issues to be determined on a reference.