J. A. Milanetti

Following a jury trial in a personal injury action, the court addressed two outstanding costs issues: whether the plaintiff’s after‑the‑event (ATE) insurance premium was a compensable disbursement and how prejudgment interest should be calculated following amendments to the Insurance Act effective January 1, 2015.

The court held that ATE insurance premiums are discretionary litigation expenses and are not recoverable as taxable disbursements in Ontario, noting the absence of legislative reform comparable to the United Kingdom regime permitting recovery of such premiums.

On the issue of prejudgment interest, the court held that the amendment to s. 258.3(8.1) of the Insurance Act changing the rate of prejudgment interest does not apply retroactively because prejudgment interest is substantive in nature.

The plaintiff was therefore entitled to prejudgment interest on general damages at the pre‑January 2015 rate of five percent per annum.

The applicant sought the extraordinary remedy of certiorari to quash a completed criminal trial in which he had been required to represent himself after an adjournment request was denied.

The applicant argued that the denial of the adjournment and the requirement to proceed without counsel amounted to a denial of natural justice and jurisdictional error.

The court held that the trial judge’s decision to deny the adjournment was an exercise of judicial discretion within jurisdiction.

Because the merits of the case had been tried and findings were made on the essential elements of the offences, the proper remedy was an appeal rather than certiorari pursuant to s. 776 of the Criminal Code.

The application for certiorari was therefore dismissed.

Following a successful motion involving a conflict of laws analysis concerning jurisdiction over an accident that occurred in New York State, the court determined the appropriate costs award.

Applying the factors in Rule 57 of the Rules of Civil Procedure, the court emphasized the complexity of the proceeding and the importance of the issues to the parties.

Although the successful moving party sought over $23,000 in partial indemnity costs, the court found the hours claimed excessive relative to the reasonable expectations of the losing parties.

The court therefore reduced the claim and awarded partial indemnity costs in a significantly lower amount.

Costs were ordered payable jointly by the plaintiff and an opposing defendant insurer.

The applicants sought termination of powers of attorney granted by their elderly mother to other family members and sought appointment of one applicant as guardian of property and person under the Substitute Decisions Act.

The court found the attorneys had failed to properly account for the sale proceeds of the incapable person's home and had breached their fiduciary duties in managing her finances.

The court also found the incapable person unable to manage her property or personal care based on capacity assessments.

Although concerned about the proposed guardian’s intentions and family financial conduct, the court terminated the existing powers of attorney and appointed the applicant as guardian subject to strict conditions, including restrictions on moving the incapable person and mandatory financial accounting.

A condominium corporation brought an application under ss. 117, 119 and 134 of the Condominium Act, 1998 alleging that occupants of a unit engaged in aggressive, threatening, and disruptive conduct toward other residents, contractors, and condominium staff.

Evidence included affidavits from unit holders and correspondence describing confrontational and verbally abusive behaviour by an occupant of the unit.

The respondents argued mediation was required under s. 132 of the Act, but the court held mediation was not mandatory where statutory breaches were alleged.

The court found the evidence, including admissions in the respondents’ own materials, demonstrated confrontational and abusive behaviour inconsistent with the condominium’s declaration and rules.

The court granted orders requiring the occupant to keep the peace, cease abusive conduct, avoid certain individuals, and requiring the unit owner to ensure compliance with condominium rules.

The moving defendants sought dismissal of a personal injury action arising from a motor vehicle accident in Niagara Falls, New York on the basis that Ontario lacked jurisdiction simpliciter, or alternatively that Ontario was forum non conveniens.

The plaintiff, an Ontario resident, sued the New York drivers as well as her Ontario insurer under underinsured motorist coverage.

Applying the framework from Club Resorts Ltd. v. Van Breda, the court held that none of the presumptive connecting factors established a real and substantial connection to Ontario, as the defendants resided in New York and the tort occurred there.

The plaintiff’s insurance contract with an Ontario insurer was characterized as secondary and contingent and insufficient to ground jurisdiction.

The court also declined to invoke the forum of necessity doctrine despite the expiration of the New York limitation period.

A contractor and a second mortgagee disputed entitlement to insurance proceeds paid into court following a fire that destroyed equestrian facilities.

The contractor claimed priority under s. 85 of the Construction Lien Act based on a construction lien arising from reconstruction work, while the mortgagee claimed entitlement based on a second mortgage and alleged shortfall following a power of sale.

The court found the evidentiary record insufficient to determine whether the contractor had a valid and timely lien and expressed concerns about the validity of the mortgage due to possible past consideration.

As a result, the court declined to order payment of the funds to either claimant and directed that the dispute proceed to trial for viva voce evidence and further documentary proof.

In estate litigation arising from a will challenge, the respondent sought an order requiring the applicant to pay her share of proceeds from the sale of estate property into court pending resolution of the dispute.

The moving party argued that the applicant held title to the property in trust and should not retain the funds while challenging the will.

The court held that ordering payment of the proceeds would constitute substantive relief unsupported by an evidentiary record and inappropriate at the preliminary stage of proceedings.

The litigation was at an early stage with no pleadings exchanged.

The motion was therefore dismissed.

The defendant insurer brought a motion for summary judgment arguing that the plaintiff’s claim for non-earner accident benefits was statute‑barred.

The insurer had denied the benefit in July 2006, but the insured commenced mediation in 2010 and issued a statement of claim in 2011.

The court held that the two‑year limitation period under the Insurance Act and Statutory Accident Benefits Schedule runs from the insurer’s refusal to pay the benefit, even if the reason given later proves legally incorrect.

The plaintiff also failed to commence the court proceeding within the additional 90‑day period following the mediator’s report.

The action was therefore barred by the statutory limitation period and summary judgment was granted.

The applicant and respondent separated in 2008 and sought resolution of issues relating to custody, access, child support, and equalization.

The court granted a divorce and ordered an equalization payment to the applicant.

The court awarded sole custody and primary residence of the child to the applicant, finding that the respondent's involvement in a large-scale drug operation and his inconsistent evidence regarding his income and employment raised significant concerns about his ability to provide a stable home.

The court imputed an income of $50,000 to the respondent for child support purposes due to his failure to provide reliable income information and ordered him to pay ongoing and retroactive child support.

A parent appealed a decision granting summary judgment in a child protection proceeding that made two children Crown wards without access.

The appellant argued that fresh evidence regarding rehabilitation, sobriety, family supports, and the parent‑child bond warranted setting aside the order and proceeding to trial.

The court reviewed the applicable appellate standards for summary judgment in child protection matters and considered the proposed fresh evidence but found it either could have been adduced earlier or did not undermine the motion judge’s findings.

The court held that the motion judge properly relied on concerns including longstanding substance abuse, poor relationship choices, lack of cooperation with the child protection agency, and insufficient support structures.

The appellate court concluded that the motion judge made no reversible error and that the children’s best interests supported finality and permanency planning.

Following an unsuccessful estate application brought by the executor, the successful responding beneficiaries and a corporate trustee sought costs.

The court considered the Rule 57 factors governing costs awards, including the reasonableness of the fees sought and the amount an unsuccessful party could reasonably expect to pay.

Although both respondents were entitled to partial indemnity costs, the court reduced the corporate trustee’s claimed fees due to proportionality concerns and its more limited role in the litigation.

The court ordered that the costs be paid personally by the executor rather than from the estate, emphasizing that the estate should not bear the expense of unsuccessful litigation pursued by a trustee.

An estate trustee applied to remove a corporate co-trustee from administering an estate that held valuable Muskoka cottage property subject to life interests.

The applicant argued the corporate trustee obstructed efforts to obtain a reverse mortgage to fund repairs and maintenance after the estate’s capital maintenance fund was exhausted.

The court applied the established test for removal of trustees, emphasizing that a testator’s choice of trustee should not be lightly interfered with and that removal requires clear necessity and must promote the welfare of beneficiaries.

The proposed borrowing arrangement was vague and risked depleting the trust asset while primarily benefiting the life tenant at the expense of residual beneficiaries.

The court concluded that the applicant failed to demonstrate that removal of the corporate trustee was necessary or that it was the only viable course.

Following a prior motion and costs ruling, the court issued an amended costs decision after receiving correspondence suggesting a mathematical error.

It was later discovered that the correspondence had been sent in error and that the parties had already reached a settlement before the amended decision was released.

The court held that the amended costs decision should not have been issued and rescinded it, restoring the original costs decision.

The self‑represented defendant sought to reopen the original costs ruling, but the court declined to do so.

However, the court awarded the defendant costs for the additional attendance required to address the issue.

Following the granting of summary judgment enforcing minutes of settlement and dismissal of a motion to amend pleadings, the successful party sought substantial indemnity costs exceeding $317,000, alternatively partial indemnity costs of approximately $205,000.

The opposing parties argued that substantial indemnity costs were inappropriate and that the fees claimed were excessive.

The court held that substantial indemnity costs were not justified but awarded costs on a partial indemnity basis.

Significant reductions were applied to the bill of costs due to duplication of effort among multiple counsel, excessive hours, and unreasonable expectations for certain attendances.

The court ultimately assessed partial indemnity costs at $145,258.54 plus HST and disbursements.

A lawyer brought a motion opposing confirmation of an Assessment Officer’s certificate that had reduced the lawyer’s account following assessment of legal fees arising from multiple motor vehicle accident and accident benefits claims.

The court reviewed the factors governing assessment of solicitors’ accounts established in Cohen v. Kealey & Blaney and held that the Assessment Officer erred in principle by focusing primarily on time dockets while giving insufficient consideration to the remaining factors.

Evidence demonstrated that the litigation was complex, the settlements achieved were substantial, and the client had signed detailed written instructions acknowledging the fee structure and expected net recovery.

The court found the client’s reasonable expectations and the results achieved supported the original account.

The certificate of assessment was set aside and the solicitor’s original account was confirmed.

A homebuilder sought summary judgment enforcing minutes of settlement resolving a dispute over construction deficiencies and a $200,000 holdback on a luxury home contract.

The homeowners argued the settlement was unenforceable due to absence of executed releases, alleged duress, nondisclosure of a thermal imaging report identifying further deficiencies, and incomplete performance of settlement obligations.

The court held that settlement agreements are contracts requiring mutual intention and agreement on essential terms, and found the signed minutes constituted a complete and binding agreement.

The failure to exchange releases did not amount to repudiation because the obligation was mutual and both parties continued acting in accordance with the settlement.

Allegations of duress and nondisclosure were rejected on the evidence.

Summary judgment enforcing the settlement was granted.

Following a trial in which the plaintiff obtained judgment for unpaid amounts arising from a business relationship, the court addressed the issue of costs.

The plaintiff sought partial indemnity costs to the date of settlement offers and substantial indemnity costs thereafter under Rule 49.

The court found the offers did not qualify for enhanced costs because they had been withdrawn and were not properly filed.

Considering the conduct of the parties and complications arising from an acknowledged but unpleaded debt owed by the plaintiff to the defendant, the court reduced the costs sought and awarded partial indemnity costs only.

Following a trial where the plaintiff obtained a modest judgment significantly below both the amount claimed and the defendant’s earlier offer to settle, the court determined costs.

The plaintiff sought partial indemnity costs despite failing to provide a Bill of Costs or Costs Outline and having pursued an inflated claim inconsistent with discovery evidence.

The court also noted the plaintiff’s blanket denial of a formal Request to Admit, which undermined the purpose of narrowing issues.

Applying Rule 49 of the Rules of Civil Procedure, the court declined to award the plaintiff costs and instead awarded the defendant partial indemnity costs from the date of its unaccepted settlement offer.

Following a Small Claims Court trial in which the plaintiff’s claim was dismissed and the defendant succeeded on a counterclaim, the successful party sought a representation fee significantly exceeding the statutory cost cap.

The court considered s. 29 of the Courts of Justice Act and Rules 19.04 and 19.06 of the Rules of the Small Claims Court, which limit costs to 15 percent of the amount claimed unless unreasonable behaviour justifies a higher award.

The court found the self-represented plaintiff prolonged the proceeding through excessive and unproductive cross‑examination, constituting unreasonable behaviour.

However, applying proportionality principles and considering the modest value of the claim, the court limited the representation fee to a modest amount above the usual cap.