James F. Diamond

Following a successful motion for partial summary judgment, the moving party sought costs on a substantial and full indemnity basis, arguing the responding party acted unreasonably and for the purpose of delay.

The responding party denied lengthening the proceeding and argued the costs sought were disproportionate.

The court found the responding party did not act unreasonably solely for delay, but awarded costs on a partial indemnity basis up to the date of the moving party's offers to settle, and on a substantial indemnity basis thereafter.

Costs were fixed at $32,500 inclusive.

The plaintiff brought a motion for summary judgment seeking payment of over $5.1 million in outstanding invoices for bitumen supplied to the defendant.

The defendant argued the claim was partially statute-barred and that the parties had entered into a new agreement allowing the defendant to withhold payment to set off costs from alleged roadway deficiencies caused by the plaintiff's product.

The court found the claim was not statute-barred, as the limitation period began 30 days after the statement was delivered.

However, the court found a genuine issue requiring a trial regarding the existence of the new agreement and ordered a mini-trial on that issue.

The plaintiff recruitment firm brought a motion for partial summary judgment for unpaid invoices relating to executive placements.

The defendant did not oppose the judgment but sought a stay of execution pending the resolution of its counterclaim against the co-plaintiff financial advisory firm.

The court granted the partial summary judgment and dismissed the request for a stay, finding that the co-plaintiffs were separate corporate entities, the underlying transactions were completely unrelated, and the equities favoured allowing the plaintiff to enforce its judgment without delay.

The defendants brought motions to dismiss the plaintiff trade union's action for lack of standing, to stay the action pending related criminal proceedings, and to strike the statement of claim.

The plaintiff union alleged the defendants misappropriated funds intended for the union's Retiree's Cancer Claim Fund.

The court found the plaintiff had standing as a trade union acting within its labour relations functions.

The court declined to stay the civil action, finding no extraordinary circumstances despite pending criminal charges against two defendants.

On the motions to strike, the court upheld most claims against the primary defendants but struck the claims against the defendant lawyer with leave to amend, finding insufficient material facts pleaded regarding his involvement.

The appellant children's aid society appealed a temporary order placing a newborn child in the care of the respondent parents subject to supervision terms.

The society argued the application judge erred by imposing terms irreconcilable with his findings regarding the mother's mental health and the father's prior criminal conviction.

The Divisional Court dismissed the appeal, finding the application judge correctly applied the test under section 51(2) of the Child and Family Services Act and made no palpable and overriding error.

The Court also dismissed the society's motion to introduce fresh evidence regarding the paternal grandfather's criminal record, applying a relaxed test but finding the evidence would not have affected the result.

The appellant teacher appealed a finding of professional misconduct and the resulting penalty imposed by the Discipline Committee of the Ontario College of Teachers.

The misconduct arose from the appellant's aggressive and intimidating behaviour towards public health nurses and students during a school immunization clinic, where he expressed opposition to vaccines.

The Divisional Court dismissed the appeal, finding that the Discipline Committee's findings of misconduct and the imposed penalty, which included a one-month suspension and a two-year prohibition from attending school health clinics, were reasonable and supported by the evidence.

The appellant sought judicial review of his removal and arrest from a city bus station for distributing pamphlets, seeking declaratory relief and an order quashing the trespass decision.

The Divisional Court held it lacked jurisdiction to grant declaratory relief because the Trespass to Property Act does not confer a statutory power of decision.

The court further found the application to quash was moot and declined to exercise its discretion to hear it.

The matter was transferred to the Superior Court of Justice to be heard as a Charter application.

The tenant appellants appealed an eviction order and a subsequent LTB order denying their request for a review.

The tenants had attended the LTB for their hearing but left during a lunch break because the elevators broke down, and they could not climb 18 flights of stairs due to a disability.

The LTB member dismissed their review request without a hearing, finding they should have telephoned the Board.

The Divisional Court allowed the appeal, holding that the LTB denied the tenants natural justice by failing to hold a review hearing to consider their evidence regarding their inability to participate.

The matter was remitted to the LTB for a review hearing.

The plaintiffs requested an amendment to the court's previous reasons dismissing their request for injunctive relief, citing an error in a transcript regarding whether the Law Society of Upper Canada was investigating the plaintiffs.

The defendant conceded the transcript error but argued the dismissal should be maintained.

The court corrected the factual error in its supplementary reasons but declined to amend its previous order, finding that the plaintiffs' case for injunctive relief was still not ironclad enough to warrant the exceptional remedy sought.

The self-represented plaintiff sued the property management company and its manager following his eviction, alleging assault and breaches of the Residential Tenancies Act after his cat went missing during the removal of his belongings.

At trial, the plaintiff withdrew the assault and statutory breach claims, seeking instead to amend his pleadings to claim negligence.

The court dismissed the motion to amend, finding the negligence claim was statute-barred and not supported by the original pleadings.

The court also dismissed the plaintiff's action, finding the defendants complied with the 72-hour property retention requirement under s. 41 of the Act.

The defendants' counterclaim for rent arrears was dismissed for lack of standing.

The defendants appealed a Master's order granting the plaintiffs leave to amend their Statement of Claim to seek damages for breach of a settlement agreement.

The defendants argued the new causes of action were barred by the two-year limitation period under the Limitations Act, 2002.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error in the Master's decision.

The court held that, at the pleadings stage, the plaintiffs' reliance on the defendants' ameliorative efforts to cure the breach may have rendered legal proceedings inappropriate, thereby postponing the commencement of the limitation period.

The plaintiffs sued the defendant for specific performance or damages after an aborted real estate transaction.

The defendant brought a motion under Rule 49.09 to enforce what she claimed was a binding settlement agreement arising from correspondence between counsel.

The court dismissed the motion, finding that the plaintiffs' letter did not contain a clear, unambiguous offer to settle the matter by selling the property at the original purchase price, but rather only offered a settlement payment in the alternative.

Following the dismissal of the applicant's application, the successful respondent sought costs on a partial indemnity basis in the amount of $16,009.85.

The court considered the urgency of the application, the service of a Notice of Constitutional Question, and the principles of fair and reasonable costs.

The court fixed the respondent's costs at $13,500 on a partial indemnity basis.

The respondent was wholly successful on a motion to quash the appellants' appeal and sought costs of $14,483.01 on a partial indemnity basis.

The appellants agreed costs should follow the event but disputed the quantum, arguing the hours claimed were excessive for a motion with no cross-examinations and brief materials.

The court agreed the hours claimed were high and, applying the principle of fairness and reasonableness, fixed the respondent's costs at $10,000 on a partial indemnity basis.

The plaintiff sought partial indemnity costs of $43,562.00 following a summary judgment motion in a wrongful dismissal action.

The defendant argued for no costs due to divided success, or a reduced amount.

The court analyzed the six issues raised on the motion and found the plaintiff was the more successful party on the major issues of reasonable notice and the 2016 bonus.

Applying the principle of proportionality and considering what is fair and reasonable, the court awarded the plaintiff partial indemnity costs fixed at $20,000.00.

The applicant sought equitable relief from forfeiture after being locked out of commercial leased premises due to multiple breaches of the lease, including non-payment of basic rent, unauthorized subletting, and failure to open the specified restaurant business for nearly three years.

The court, applying the principles of relief from forfeiture, found that while the applicant had cured rent arrears, the prolonged failure to open the restaurant and lack of sufficient evidence for delays were significant.

The court granted relief from forfeiture but imposed stringent conditions on the applicant, requiring timely rent payments, provision of post-dated cheques, and payment of a substantial sum for outstanding reality taxes, with a clear stipulation that non-compliance would allow the respondents to terminate the lease.

At a case conference, the plaintiffs objected to the defendant serving a supplementary motion record for an upcoming summary judgment motion, arguing it breached a consent timetable and Rule 39.02(2).

The court found Rule 39.02(2) did not apply because no cross-examinations had taken place.

However, the court agreed the plaintiffs had the right to respond to the new material and cross-examine on it, necessitating an adjournment of the summary judgment motion to a new date.

The plaintiff, a 54-year-old employee with 21 years of service, brought an action for wrongful dismissal.

Following a summary judgment motion, a mini-trial was held to determine the plaintiff's character of employment, reasonable notice, and mitigation efforts.

The court found that despite his title, the plaintiff did not hold a management position.

Applying the Bardal factors, the court set the reasonable notice period at 18 months.

However, the court reduced the notice period by two months because the plaintiff failed to mitigate his damages by using an inaccurate resume to apply for incomparable senior management positions.

The plaintiff software provider sued the defendant investment management firm for unpaid invoices under an Investment Administration Services Agreement.

The dispute centered on whether the plaintiff could charge additional fees based on the Assets Under Administration (AUA) of all the defendant's funds, or only the specific fund for which the software was initially used.

The court applied principles of commercial contractual interpretation and found the plain language of the Agreement allowed fees based on total AUA.

The plaintiff was awarded $16,242.19 for AUA fees.

However, the court dismissed the plaintiff's claims for concurrent user fees and post-termination service charges, finding the contract ambiguous on concurrent users and noting the plaintiff breached its own post-termination obligations.

The defendant's counterclaim for wrongful termination was dismissed because the termination was lawful given the unpaid AUA fees.

The respondent brought a motion to quash the appellants' appeal of an arbitral award regarding post-closing adjustments under a Share Purchase Agreement.

The respondent argued that the Joint Submission to Arbitrate governed the proceedings and did not provide a right of appeal, meaning leave was required under the Arbitration Act, 1991.

The appellants argued the original Share Purchase Agreement allowed appeals for 'manifest error'.

The court found that the Joint Submission to Arbitrate replaced the original agreement and governed the arbitration.

As it did not provide a right of appeal, and no leave was sought, the motion was granted and the appeal was quashed.