James M. Regan

This is a costs endorsement following a trial in a commercial dispute involving unpaid accounts.

The plaintiff was partially successful in its claim, recovering $430,809, while its claim for additional amounts based on oral agreements was dismissed.

The defendants' counterclaim was entirely dismissed.

The court awarded costs to the plaintiff as the successful party, fixing costs at $150,000 in fees and $62,210.53 in disbursements on a partial indemnity basis.

The court rejected arguments for cost shifting based on a Rule 49 settlement offer that was less than the judgment and declined to impose sanctions based on allegations of impropriety made by either party.

The Court of Appeal for Ontario dismissed an appeal by defendants seeking to hold litigation lenders liable for costs incurred by a class member (Mr. Zuber) who pursued an exaggerated damages claim and incurred substantial debt from litigation loans.

The trial judge had refused to order the lenders to pay costs, finding they did not instigate or control the litigation in a manner amounting to an abuse of process, despite the onerous interest rates and the loans impeding settlement.

The Court of Appeal affirmed this decision, reiterating that non-party costs are limited to "person of straw" or abuse of process scenarios, neither of which applied to the lenders' conduct.

The court also refused leave to cross-appeal the trial judge's decision not to award costs of the motion to the lenders, finding no error in principle.

Following a failed motion by the defendants to have their trial costs paid by various litigation loan providers, the loan providers sought their costs of the motion.

The court declined to award costs to the loan providers, finding that the defendants' motion raised a novel issue regarding the enforcement of a costs award against a litigation loan provider and the requirement for court approval of litigation loan agreements.

Given the novelty of the issue, the court exercised its discretion to make no order as to costs.

Following a lengthy trial where the plaintiff was awarded $50,000 but the defendants obtained a costs award of over $3.4 million, the defendants moved to recover those costs from four non-party litigation loan providers who had advanced funds to the plaintiff.

The court declined to order costs against the non-parties, finding that while the loans carried exorbitant interest rates, providing them did not amount to an abuse of process under the 'person of straw' test or the court's inherent jurisdiction.

The court also noted that while litigation loans should be approved by the court in class proceedings, the statutory requirement to do so did not exist at the time the loans were made.

The court determined costs following a 106-day individual assessment trial in a class action where the plaintiff recovered $50,000 after claiming $60,000,000.

The plaintiff sought over $7,000,000 in costs, including nearly $3,000,000 in interest on litigation loans.

The court ruled that interest on litigation loans is not a recoverable disbursement.

Finding that the plaintiff unreasonably rejected multiple offers to settle from the defendants, the court awarded the plaintiff partial indemnity costs up to the date of the defendants' first offer in 2009, and awarded the defendants their partial indemnity costs thereafter, resulting in a net costs award of over $2.3 million payable by the plaintiff to the defendants.

The plaintiff, a class member in a class action arising from a 1999 VIA Rail train derailment, sought over $60 million in damages, primarily for past and future loss of income and future care costs.

The plaintiff claimed the accident caused severe, debilitating injuries that destroyed his highly lucrative consulting business in Poland and Eastern Europe.

The court found the plaintiff and many of his lay and medical witnesses lacked credibility, noting significant inconsistencies, lack of documentary evidence (such as tax returns and banking records), and evidence of extensive post-accident travel and business activities.

The court rejected the income loss and future care claims entirely, awarding only $50,000 in general damages for minor soft tissue injuries.

During a personal injury class action trial arising from a VIA Rail derailment, a class member sought to qualify a chartered accountant as an expert witness to quantify past and future wage loss.

The defendants opposed the qualification, arguing the expert lacked objectivity and his evidence was unnecessary.

The Superior Court of Justice applied the Mohan framework and found the expert's evidence was not necessary, as he merely accepted the class member's uncorroborated figures without independent analysis.

The court also found the expert failed to establish a basic threshold of objectivity, rendering him improperly qualified.

The expert evidence was ruled inadmissible.

During a trial for damages arising from a railway accident, the plaintiff (a class member) sought to qualify an expert witness to provide opinion evidence on the profitability of a proposed European pipeline project, claiming a loss of opportunity.

The defendants objected to the expert's admissibility.

Following a voir dire, the court refused to qualify the expert.

The court found the expert's evidence lacked reliability due to an undisclosed prior business relationship with the plaintiff.

Furthermore, the court held the expert evidence was unnecessary because the plaintiff failed to produce admissible evidence or documentation demonstrating he could have obtained the financing required to build the pipeline.

During a lengthy personal injury trial arising from a train derailment, the defendants brought a motion to determine whether the plaintiff required leave under section 12 of the Evidence Act to call more than three 'participant experts' (treating doctors) who intended to proffer opinion evidence.

The court held that while treating doctors testifying strictly to history, treatment, diagnosis, and prognosis do not require leave, those offering broader opinion evidence must comply with Rule 53.03 and are subject to the three-expert limit.

The court emphasized its gatekeeper function and the need for proportionality, ruling that the plaintiff must seek leave to call more than one expert per medical specialty.

During a personal injury trial arising from a train derailment, the defendants brought mid‑trial motions seeking orders requiring certain foreign witnesses to testify in person in Canada rather than by video conference and restricting the plaintiff to evidence previously disclosed under an earlier discovery order.

The court considered Rule 1.08 of the Rules of Civil Procedure and the broader access‑to‑justice principles articulated in Hryniak v. Mauldin.

The judge held that credibility concerns alone did not justify refusing video evidence and found the balance of convenience favoured permitting the witnesses, located abroad, to testify by video conference with interpretation.

The court also declined to limit the plaintiff’s evidence to earlier will‑say statements, finding that continuing disclosure obligations and fairness required allowing updated affidavit evidence while preserving the defendants’ opportunity to challenge it.

The plaintiff sought approximately $2.6 million in damages against a contractor and an acrylic sheet manufacturer arising from alleged defects in the design, manufacture, and installation of a skylight system for a horse riding arena.

The plaintiff alleged negligent design, negligent manufacture of acrylic sheets, negligent misrepresentation in product literature, and spoliation of evidence.

After a lengthy trial, the court found no negligence or breach of contract by the contractor and no negligence in the manufacture of the acrylic sheets by the manufacturer.

Although the manufacturer should have disclosed certain test results regarding light transmittance, the plaintiff failed to prove causation.

The court further held the plaintiff fundamentally breached the contract and was contributorily negligent by refusing to install an automatic controller and by failing to implement recommended ventilation and heating measures, and also failed to mitigate its losses.

At the commencement of a lengthy construction dispute trial, the defendants sought to set aside an earlier bifurcation order so that liability and damages could be tried together, while the plaintiff moved to strike the defendants’ jury notice.

The court exercised its inherent jurisdiction to manage the trial process and set aside the earlier order, finding that trying all issues together would avoid multiplicity of proceedings and that evidentiary overlap justified a single trial.

The court also held that the case involved exceptionally complex factual, technical, and legal issues, including numerous expert reports, extensive documentary evidence, multiple causes of action, crossclaims, and potential apportionment under a Pierringer agreement.

Given these complexities, the court concluded that justice would be better served by a judge-alone trial rather than a jury.

The jury notice was therefore struck and the matter ordered to proceed on all issues before a judge.

The appellants challenged a trial costs order requiring them to pay the respondent more than $509,000 in fees, much of it on an elevated indemnity basis after a without-costs offer to settle.

The Court of Appeal held that elevated costs are warranted only through the operation of rule 49.10 or where the losing party engaged in reprehensible or egregious conduct deserving of sanction.

Because the offer did not engage rule 49.10 and there was no sanction-worthy conduct, the elevated award was an error in principle.

The court further held the amount awarded was not fair and reasonable under the governing costs principles and reduced the fees award to $300,000.

The appellants appealed a trial judge's finding that their faulty construction of a fireplace caused a fire in the respondent's home.

The appellants argued the trial judge misapprehended the evidence and failed to consider that the fire's cause was undetermined.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's acceptance of the respondent's expert evidence that the fire was caused by pyrolysis due to the chimney's proximity to a trimmer joist.

The plaintiff was injured in a motor vehicle accident with the defendant, who was driving a cube van.

The defendant's auto insurance policy excluded coverage for vehicles over 4,500 kg.

The plaintiff's insurer, CAA, appealed a motion judge's finding that the defendant's insurer, Royal & Sun Alliance, was not obliged to compensate the plaintiff under s. 258(1) of the Insurance Act.

The Court of Appeal dismissed the appeal, holding that s. 258(1) is only triggered if the insured could have been entitled to indemnity under the policy.

The plaintiff contractor brought a motion for summary judgment to enforce a consultant's certificate for payment after a fire destroyed a construction project.

The motion judge denied summary judgment but proceeded to make determinations of law on other legal issues, ordering the parties to appoint a new consultant to determine the amount owing.

The defendants appealed, and the plaintiff cross-appealed.

The Court of Appeal set aside the motion judge's order, finding that the motion judge erred by treating the summary judgment motion as a trial on the record and determining issues that should have been sent to trial.

The Court ordered all issues to be tried.

The appellants, Van Dorn Demag Corporation and Imperial Eastman, appealed a trial judgment finding them liable for failing to warn the respondent, Siemens Automotive Limited, of the risks associated with reusing repaired hoses.

The Court of Appeal dismissed the appeal, finding that Siemens' inadequate maintenance program did not negate the appellants' duty to warn, as Siemens lacked knowledge of the specific dangers.

The court also upheld the trial judge's apportionment of 15 percent liability to Siemens and rejected Imperial Eastman's argument that it was protected by the learned intermediary doctrine or its catalogue warning.

The respondent suffered an ischemic stroke caused by a dissection of his left internal carotid artery while playing basketball, resulting in permanent disability.

He claimed a $200,000 benefit under his employer's group accident policy, which covered bodily injury caused by an accident.

The trial judge found that the dissection was likely caused by trauma from the respondent vigorously turning his neck during the game, and that this constituted an 'accident' because the resulting injury was unexpected.

The insurer appealed, arguing the trial judge made palpable and overriding errors in his factual findings and misapplied the law regarding accidental injuries.

The Court of Appeal dismissed the appeal, holding that deliberate acts of ordinary living can constitute an accident and that the circumstantial evidence amply supported the trial judge's findings on causation.