James H. Bennett

Following a motion regarding the appointment of an estate trustee during litigation and the production of records, the court issued a costs endorsement.

The court noted that both parties took inflexible positions and failed to make offers to settle.

Because success on the motion was divided, the court declined to order costs to either party and encouraged future negotiation and mediation.

The plaintiff, Pixiu Solutions Inc., discontinued its action against the three defendants: Canadian General-Tower Limited, CGT Shanghai Trading Co. Ltd., and CGT Changshu Co. Ltd. The defendants subsequently brought a motion to fix their costs of the action on a partial indemnity basis.

The plaintiff argued for a total costs award that would result in a "wash" against a prior costs order in its favour.

The court considered the factors under the Courts of Justice Act and Rule 57.01, including the reasonable expectations of the unsuccessful party and the necessity of separate counsel for distinct legal entities.

The court reduced the claimed costs for Changshu and Canadian General-Tower Limited due to disproportionality and time spent on issues not involving them, but allowed Shanghai's claim in full.

The aggregate costs awarded to the defendants were found to be proportionate and within the plaintiff's reasonable expectations.

This ruling addresses costs following the dismissal of an action on a motion for summary judgment.

The plaintiff, despite losing, sought costs in his favour, which was denied.

The defendants sought substantial indemnity costs, relying on an offer to consent to dismissal without costs and alleging the plaintiff's claims impugned their integrity.

The court rejected the defendants' claim for substantial indemnity, finding that an offer to dismiss without costs does not warrant elevated costs and that the plaintiff's conduct did not merit sanction.

The defendants were awarded partial indemnity costs, fixed at $14,331.06.

This costs endorsement addresses the issue of costs following a motion for directions.

The plaintiff, Pixiu Solutions Inc., was deemed the successful party on the motion.

The defendants' offer to settle did not qualify under Rule 49.10 of the Rules of Civil Procedure because it included a proviso regarding the mode of examination of a witness, making it not capable of acceptance without further agreement.

Consequently, Pixiu Solutions Inc. was awarded partial indemnity costs.

The plaintiff brought an action against the defendant and its foreign subsidiaries for breach of a supply agreement.

The foreign subsidiaries brought motions to dismiss or stay the action for lack of jurisdiction.

The plaintiff brought a motion for directions to examine witnesses pursuant to Rule 39.03 prior to the hearing of the jurisdiction motions.

The court allowed the plaintiff to cross-examine one witness and examine another, finding that the proposed evidence was possibly relevant to the issue of whether a contract connected with the dispute was made in Ontario, a presumptive connecting factor for jurisdiction.

Two cross-applications were brought regarding the property of an incapable person.

The attorneys for property sought the court's direction on whether to honour requests for money from the incapable person's son.

The son and his wife sought to remove the attorneys and force a passing of accounts.

The court dismissed the attorneys' application, holding that the court cannot give directions on how attorneys should exercise their discretion.

The court also dismissed the son's application, finding no strong and compelling evidence of misconduct or neglect to justify removing the attorneys, and noting the failure to obtain leave for a passing of accounts.

The applicant sought relief from forfeiture of elected municipal office after failing to file an audited campaign financial statement as required by the Municipal Elections Act, 1996.

The failure arose from an accounting error that caused the applicant to mistakenly believe an audit was not required.

The court considered its equitable jurisdiction under s. 98 of the Courts of Justice Act and applied the relief-from-forfeiture test focusing on the applicant’s conduct, the gravity of the breach, and the proportionality between the breach and the forfeiture.

The court found the breach technical and inadvertent, that the applicant acted in good faith, and that no prejudice resulted.

Relief from forfeiture was granted, allowing the applicant to retain the elected office.

The appellant appealed the dismissal of its claim for damages against the City for groundwater contamination caused by road salt, which allegedly prevented the development of a medical office building with underground parking.

The trial judge rejected the appellant's evidence that it actually intended to build such a development and subsequently excluded the appellant's expert evidence, which was based on that rejected factual foundation.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's credibility findings, evidentiary rulings, or costs award.

The applicant corporation sought an injunction to prevent approval of contracts related to a proposed light rail transit project in the Region of Waterloo.

The court found the applicant lacked standing, noting it was recently incorporated, had unknown ownership, and possessed no apparent assets or ratepayer status.

The court further held the principal failed to disclose a personal interest arising from expropriation of his property connected to the project, undermining the equitable basis for relief.

The applicant failed to provide an undertaking for damages, did not establish a strong prima facie case under the Planning Act, and failed to demonstrate irreparable harm or a balance of convenience favouring relief.

The application for an injunction was dismissed with costs.

Following a trial in which the defendant was entirely successful despite having admitted liability, the court addressed the issue of costs.

The plaintiff had sought millions of dollars in damages but ultimately proved none at trial.

The defendant sought costs of $498,815.97, including partial indemnity fees up to April 21, 2010 and substantial indemnity fees thereafter based on unaccepted offers to settle.

The court found the amount fair and reasonable given the complexity of the damages theory advanced by the plaintiff, the unnecessary lengthening of the trial, and the plaintiff’s failure to accept settlement offers that should have been accepted.

Full costs in the amount claimed were awarded to the defendant.

The appellants appealed a trial judgment dismissing their claim against the respondent.

The trial judge found that the respondent had discussed his concerns with the appellant regarding a third party taking title to a property without being bound by a joint venture agreement.

The trial judge also found that the appellant instructed the respondent to proceed with the transfer regardless.

The Court of Appeal held that these findings of fact were supported by the evidence and did not constitute palpable and overriding errors.

The appeal was dismissed.

A residual beneficiary brought a motion seeking a ruling that the drafting solicitor’s contemporaneous notes regarding the testator’s instructions were inadmissible in an application to interpret a will.

The dispute concerned whether the residue should be divided into three shares, with one share divided among four children, or into six equal shares among six individuals.

The court held that the language of the will suggested an equal division among six beneficiaries but also found that, if the clause were considered ambiguous as argued by the moving party, extrinsic evidence could be admitted to clarify the testator’s intention.

Applying appellate authority recognizing a trend toward admitting surrounding circumstances in will interpretation, the court ruled that the solicitor’s notes were admissible as extrinsic evidence.

Costs were ordered in the cause.

The plaintiff suffered catastrophic injuries in a head-on motor vehicle collision on an icy municipal road.

The plaintiff sued the municipalities responsible for winter road maintenance.

The court found that the municipal snow plough operator created the icy conditions by applying a sand/salt mixture that caused a re-freeze, and then failed to return within a reasonable time to treat the resulting ice.

The court held that the Minimum Maintenance Standards did not shield the municipalities because the standards do not cover situations where the municipality creates the hazard.

The municipalities were found fully liable for the agreed damages of $1,912,176.96, with no contributory negligence on the part of the plaintiff.

Following an unsuccessful summary judgment motion brought by third parties against defendants on a third party claim, the defendants sought costs.

The court held that the defendants were successful and entitled to costs on a partial indemnity basis.

One responding party argued that another third party should bear any costs payable because it had refused to make admissions of fact that would have permitted it to exit the action.

The court found the refusal to provide admissions unreasonable but questioned its jurisdiction to order one party to pay another party’s motion costs.

Costs were fixed against both responding parties in specified amounts payable within 30 days.

Following dismissal of a motion to set aside a registrar’s order dismissing an action for delay under Rule 37.14 of the Rules of Civil Procedure, the court addressed costs of the motion.

The successful defendants sought substantial costs, with one defendant relying on an offer to settle to justify substantial indemnity costs.

The court reviewed the applicable principles under s. 131(1) of the Courts of Justice Act and Rules 57.01 and 57.03, emphasizing proportionality and reasonableness.

While accepting the reasonableness of one defendant’s costs outline, the court found another defendant’s claimed hours excessive.

Taking into account the offer to settle and overall fairness, the court fixed equal costs awards payable by the plaintiffs to each successful defendant.

The plaintiffs brought a motion to set aside a registrar's order dismissing their action for delay.

The action, which involved allegations of improper diversion of corporate funds and an improvident sale of land, had been dormant for an extended period.

The court applied the Reid factors and found that the plaintiffs failed to adequately explain the litigation delay, failed to prove inadvertence, and failed to rebut the presumption of prejudice that arose due to the passage of time and the expiration of limitation periods.

The motion was dismissed.

Third parties brought motions for summary judgment seeking dismissal of a third party claim arising from alleged groundwater contamination caused by a leaking pesticide storage tank.

The moving parties argued they had no responsibility for maintenance of the tank or liability for any leak.

The responding defendants argued that liability among the supplier, distributor, and related agents depended on unresolved contractual relationships and factual findings.

The court held that discovery had not yet occurred and that the evidentiary record was incomplete.

Given the need to assess contractual arrangements and credibility, the court found the motion premature and concluded the issues required a full trial.

The moving parties sought summary judgment dismissing a negligence claim on the basis that it was barred by the two‑year limitation period under the Limitations Act, 2002.

The claim arose from an aborted real estate transaction where the plaintiff alleged that the drafting of a price allocation clause in an agreement of purchase and sale constituted solicitor’s negligence.

The court considered the discoverability provisions in s. 5 of the Act and whether a reasonable person in the plaintiff’s circumstances ought to have known of the potential claim earlier.

The court held that the plaintiff was put on notice of the potential drafting issue no later than the delivery of a statement of defence in related litigation in February 2005.

Because the action was commenced more than two years after that date, the claim was statute‑barred.

The appellants appealed an order dismissing their motion for leave to amend their statement of claim.

The motion judge had found that the proposed amendments added new causes of action and were statute-barred, giving rise to a presumption of prejudice.

The Court of Appeal allowed the appeal, finding that the amendments did not add new material facts but simply claimed additional or alternative forms of relief based on the facts already pleaded.

As there was no evidence of non-compensable prejudice, the amendments were permitted.

The appellants' action was dismissed by a motion judge because they were two days late in paying an $8,000 costs award mandated by a peremptory scheduling order.

The appellants appealed the dismissal.

The Court of Appeal allowed the appeal, finding that the motion judge exercised her discretion unreasonably by failing to consider the justice of the case, the lack of prejudice to the respondents, and the minor nature of the breach.

The Court extended the time for compliance and reinstated the action.