James F. Diamond

The plaintiff subcontractor moved for summary judgment arising from a bridge construction dispute after the original general contractor became insolvent.

The motion concerned customized arch assembly jigs and a modified power container that remained on site and were then used by a replacement contractor to complete the project.

The court held that title to the equipment never passed under the subcontract, that the defendants’ refusal to permit removal was unreasonable, and that both defendants were liable in conversion.

Summary judgment was granted, damages were fixed at $135,600, and motion costs of $20,000 were awarded on a partial indemnity basis.

The plaintiff subcontractor brought a motion for summary judgment against the defendant property owner and new general contractor for the tort of conversion.

After the original general contractor became insolvent, the plaintiff sought to remove its custom-built equipment from the construction site.

The defendants refused access, claiming the equipment had been paid for under the original contract.

The court found that title to the equipment never passed to the defendants and their refusal to allow the plaintiff to retrieve it constituted conversion.

Summary judgment was granted and damages were awarded based on the defendants' previous counter-offer to purchase the equipment.

In a motor vehicle accident action involving multiple parties, a municipality brought a motion seeking an order requiring an insurer to defend it and allow it to retain counsel of its own choosing without reporting obligations to the insurer.

The municipality and insurer had partially settled the duty-to-defend issue, leaving the court to determine whether counsel retained by the municipality must report to the insurer that also insured another adverse party.

The court held that a conflict of interest existed because one insured was suing another insured in the same litigation and coverage issues remained live.

Given the conflict and the solicitor-client relationship, counsel retained by the municipality was not required to report to the insurer.

The moving defendants sought summary judgment dismissing a personal injury action arising from a tractor‑trailer rollover accident.

The driver plaintiff, an independent owner‑operator, had signed a waiver agreement and capital compensation plan enrollment waiving the right to sue the defendants in exchange for private disability insurance benefits.

Applying the three‑part test from Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), the court held the exclusion clauses applied to the circumstances, were not unconscionable, and were not contrary to public policy.

The court rejected arguments of unequal bargaining power and noted the plaintiffs had already received disability benefits under the plan.

Summary judgment was granted and the plaintiffs’ claims, including derivative claims by minor children, were dismissed.

The appellant appealed a decision of the Consent and Capacity Board confirming that he lacked capacity to consent to treatment for a mental disorder under the Health Care Consent Act.

The Board found the appellant incapable of consenting to treatment due to delusional beliefs preventing appreciation of the reasonably foreseeable consequences of refusing medication.

The court held that the Board’s finding of incapacity with respect to anti‑psychotic medication and related side‑effect medication was reasonable and supported by the evidence.

However, the evidentiary record contained insufficient information regarding benzodiazepines and cholinergic medication.

The appeal was therefore allowed in part and the matter remitted to the Board for a rehearing on those medications before a differently constituted panel.

Following dismissal of a motion seeking to remove the Public Guardian and Trustee as litigation guardian for a co‑plaintiff and to appoint different guardians, the successful party sought costs.

The court applied the principle that costs generally follow the event and considered the factors under s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure.

The responding parties’ submissions largely attempted to re‑argue the merits of the earlier motion rather than address costs.

The court fixed partial indemnity costs payable to the successful party.

Following dismissal of a motion seeking to vary a consent judgment and amend a statement of claim, the court determined costs payable to the successful defendants.

One defendant sought costs payable forthwith, while the plaintiff argued any award should be set off against an outstanding amount owed under a prior consent judgment.

The court held that the costs award and the debt under the consent judgment were liquidated mutual obligations, requiring legal set‑off.

Costs payable to that defendant were therefore credited against the amount owed under the consent judgment, while costs payable to the other defendant were ordered payable forthwith.

The court also assessed the reasonable quantum of costs under Rule 57.01 of the Rules of Civil Procedure.

Following the dismissal of the plaintiff's action on a motion for summary judgment, the successful defendant sought partial indemnity costs of $16,314.93.

The plaintiff conceded the defendant's entitlement to costs and the reasonableness of the hourly rates, but disputed the number of hours claimed.

The court found the hours claimed for motion preparation and drafting the bill of costs to be somewhat excessive, and fixed the all-inclusive costs award at $13,000.

Following a six-day trial for a motor vehicle accident, the jury awarded the plaintiff $30,000 in general damages.

The defendants brought a threshold motion under the Insurance Act, arguing the plaintiff's injuries did not meet the statutory exception for non-pecuniary damages.

The court analyzed the plaintiff's claim of chronic upper back pain and its impact on his employment as an RCMP officer, specifically his ability to earn overtime and train for the Emergency Response Team.

The court found that while the impairment was permanent, it did not substantially interfere with his regular employment, career training, or usual activities of daily living.

The defendants' motion was granted, and the plaintiff's claim for non-pecuniary damages was dismissed.

Lina and Paul Lochner brought a motion to remove the Public Guardian and Trustee (PGT) as the litigation guardian for their brother, George Lochner, a party under disability.

The PGT had been appointed by a previous court order and was seeking court approval for a proposed settlement with the defendants.

Lina and Paul opposed the settlement and sought to be appointed as litigation guardians instead.

The court dismissed the motion, finding that the moving parties failed to meet the high onus of demonstrating clear and cogent evidence of misconduct or that the PGT was not acting in George's best interests.

The defendant security company brought a motion for summary judgment to dismiss the plaintiff jewellery store's claim for damages following a theft.

The defendant relied on an exclusion clause in their standard form commercial contract.

The plaintiff argued the clause was unenforceable because its principal had limited English proficiency and the clause was not explained.

Applying the Tercon framework, the court found the exclusion clause was clear, applied to the circumstances, was not unconscionable in a commercial setting, and did not violate public policy.

The motion for summary judgment was granted and the action dismissed.

The plaintiff moved to vary a consent judgment arising from a three-party settlement and to lift a stay imposed on his separate action after the First Nation defendant defaulted on later settlement instalments.

The court held that a consent judgment may be rectified only on grounds going to the formation of the underlying agreement, not merely because of subsequent non-performance, and found no evidence of fraud, mistake, or other vitiating factor.

Relief was also unavailable under Rule 49.09 because the settlement had merged into the consent judgment, and the court declined to invoke inherent jurisdiction to rewrite a bargain negotiated with counsel.

The motion was dismissed, leaving the plaintiff to pursue enforcement remedies under the existing judgment.

This was a costs endorsement following the dismissal of a summary judgment motion concerning consent to operate a motor vehicle after a collision.

The insurer sought substantial indemnity costs, alternatively partial indemnity costs, against the moving defendant.

The court held that the motion itself was not brought in bad faith or unreasonably, although the materials tendered on the moving party's behalf were described as approaching unreasonable.

Applying the fairness and reasonableness approach to costs, the court fixed the insurer's costs at an all-inclusive amount of $10,000 payable forthwith.

This was a costs endorsement following dismissal of the plaintiff’s civil action.

The successful defendant sought substantial indemnity costs, relying on offers to settle and the plaintiff’s failure to proceed in Small Claims Court or under the Simplified Procedure.

The court held that costs should follow the event and that the defendant was at least entitled to partial indemnity costs from the date of its compliant Rule 49 offer.

Taking into account the defendant’s success but also findings of unprofessional account handling and systematic errors that contributed to the dispute, the court fixed partial indemnity costs at $15,000 all-inclusive.

On five identical summary judgment motions, the moving parties sought dismissal of claims and third party and fourth party claims arising from a flood in a commercial office tower allegedly caused by a failed radiator pipe repair.

The responding party argued that a 1:06 a.m.

BAS alarm could have related to low water pressure and that the moving parties negligently failed to monitor or report it.

Applying the post-2010 summary judgment framework under Rule 20 and Hryniak, the court held there was no genuine issue requiring a trial.

The surveillance video and proposed further expert inspection did not amount to cogent admissible evidence capable of establishing a triable issue.

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

The moving party sought an interlocutory injunction restraining the landlord from dealing with commercial property and sought leave to issue a certificate of pending litigation in a dispute over whether an agreement to lease remained binding after conditional periods and alleged waivers.

The court held there was a serious question to be tried on enforceability, including estoppel arising from the landlord's conduct, timing of waiver under a tenant diligence clause, and the landlord's delayed reliance on a financial-condition termination clause.

The court also found a serious question to be tried regarding specific performance because the property was arguably unique for the intended automobile dealership use.

Injunctive relief was continued only until the disposition of an expedited summary judgment motion, subject to $150,000 security and expanded undertakings as to damages.

Leave to issue a certificate of pending litigation was refused as unnecessary in light of the injunction.

The plaintiff moved for directions staying a defendant accountant's pending summary judgment motion alleging the claim was statute-barred under the Limitations Act, 2002.

The court held the proposed limitations issue was distinct from the merits of the negligence claims against both the accountant and the solicitor, and was not so intertwined with the broader proceeding as to make summary judgment inappropriate.

Applying the post-Hryniak approach, the court concluded that allowing the summary judgment motion to proceed could narrow issues and potentially extract one defendant from the litigation without unfairness.

The motion to stay the summary judgment motion was dismissed, with costs reserved.

The defendant brought a motion for summary judgment to dismiss the plaintiff's motor vehicle accident claim based on the expiry of the limitation period.

On the eve of the motion, the defendant abandoned it, and the parties attended a hearing solely to determine costs.

The plaintiff sought costs on a substantial indemnity basis, arguing the motion was unreasonable from the outset because the permanency of her injuries was not discoverable until a later medical report was obtained.

The court found no reason to depart from the presumption under Rule 37.09(3) that the responding party is entitled to costs of an abandoned motion.

However, the court declined to award substantial indemnity costs, finding no bad faith or egregious conduct by the defendant.

Costs were fixed at $12,500 on a partial indemnity basis.

The appellant appealed a decision of the Property Standards Committee confirming an Order to Comply issued by the City.

The court found the Order to Comply was vague and lacked necessary particulars to inform the appellant of the required remedial steps.

The court stayed the enforcement of the decision and ordered the City to provide a revised Order to Comply containing additional particulars before proceeding with the balance of the appeal.

Following a jury trial where liability was admitted, the jury awarded the plaintiff $30,000 in damages.

However, the court granted the defendants' threshold motion, finding the plaintiff's injuries did not meet the statutory exceptions under the Insurance Act, resulting in a nil judgment.

Both parties sought costs.

The court held that because the plaintiff obtained a nil judgment, the cost consequences of Rule 49.10 did not apply.

Applying the factors under Rule 57.01, the court awarded the successful defendants their costs on a partial indemnity basis, fixed at $32,500.