J. Barry Eakins

The court issued a final costs endorsement in a family law matter.

The respondent had successfully moved to set aside a previous order, which had included a full indemnity costs award against her.

The court reduced the original costs payable by the respondent from $12,000 to $6,000, finding her initial non-participation inadvertent.

However, the court denied the respondent's request for costs for her successful motion to set aside the order, ruling that she had received an "indulgence" for her oversight, which precluded her from recovering costs.

Ultimately, no costs were awarded to either party for the proceedings subsequent to the initial May 2021 order.

The court considered costs submissions following a trial concerning a failed business venture.

Despite the plaintiffs' offers to settle and claims of the defendants' inappropriate conduct, and the defendants' counter-arguments, the court found that success was divided, or more accurately, a "divided failure." Given that litigation expenses approached $200,000 for each party while the amounts recovered were significantly less (within Small Claims Court jurisdiction for the plaintiffs), the court emphasized proportionality.

Ultimately, no costs were awarded to either party, as the litigation was not conducted in a reasonable manner and the conduct did not meet the threshold for elevated costs.

This decision concerns the issue of costs following a dispute over road access.

The applicants, Geoffrey Palin and Amy Johnston, were substantially successful in their application and in opposing the respondents' (Norman and Barbara McIntosh) counter-application.

The court awarded the applicants substantial indemnity costs, finding that their offers to settle were more favourable than the outcome and that the respondents' conduct, including unilaterally changing a lock on an access gate and compelling litigation, was unreasonable and compounded the complexity of the proceedings.

The court clarified that for costs purposes, a counter-application should be treated analogously to a counterclaim, allowing for a holistic assessment of costs for both proceedings.

This case involved a dispute between two married couples, who were also siblings and their spouses, over the apportionment of substantial losses from a failed M&M Meat Shops franchise business.

The court was tasked with interpreting a "Letter of Understanding" (LOU) signed during mediation and its relationship to an earlier unanimous shareholders agreement.

The court found a material common or mutual mistake regarding the total corporate debt amount stated in the LOU, rendering the debt distribution terms of the LOU ineffective.

However, the LOU's provision for a $30,000 "sweat equity" payment to the defendants was upheld.

The remaining funds were ordered to be distributed based on the initial shareholders agreement's proportionate contribution terms, after correcting for disproportionate contributions and rejecting a minor claim for frozen food.

The parties, who had cohabited but were never married, resolved their issues in a 2020 settlement conference, with the presiding judge retaining jurisdiction over the interpretation, application, or implementation of the minutes of settlement.

Ongoing disputes arose concerning a cemetery plot, the reinstatement of the applicant on the respondent's benefits plan, and the account into which spousal support payments were being made.

The respondent brought a motion to set aside a May 2021 order, arguing that her failure to participate was due to inadvertence.

The court found that the test for setting aside the order was met, including a plausible explanation for the respondent's default.

The court clarified the cemetery plot issue, ordered further steps to involve the benefits insurer (OTIP and Manulife) for the reinstatement issue, and ruled that the respondent was not liable for support payments deposited into the applicant's garnished RBC account, except for one payment made after a specific court order.

The court deferred the costs award from the May 2021 hearing to the conclusion of the process.

The applicants purchased a property and sought to enforce a prior court order granting them use of a private road over the respondents' property.

The respondents brought a counterapplication seeking a declaration that the road was not an 'access road' under the Road Access Act and an order closing it to the applicants due to an alleged alternate route.

The court held that the respondents were estopped from arguing the road was not an access road due to their concession in the prior proceeding.

The court also found that the respondents failed to prove a change in circumstances, as the alternate route was not a reliable year-round access.

The applicants were permitted to continue using the road subject to the conditions of the prior order.

Following a nine-week trial of a residential construction dispute, the successful builder and municipality sought costs against the unsuccessful property owners.

The builder sought elevated costs based on a Rule 49.10 offer to settle and the owners' alleged bad faith conduct.

The municipality sought elevated costs based on non-compliant offers to settle.

The court awarded the builder partial indemnity costs to the offer date and substantial indemnity costs thereafter, finding the owners' conduct did not warrant further elevation.

The municipality was awarded partial indemnity costs throughout.

Costs were fixed at $850,000 for the builder and $100,000 for the municipality.

The builder sued the homeowners for unpaid amounts on a residential construction project.

The homeowners counterclaimed for construction deficiencies and incomplete work, and also sued the municipality for negligent building inspection.

The court found that the parties had an oral contract and that the builder did not breach it by leaving the project when the homeowners stopped paying.

The court dismissed the homeowners' claims for major structural deficiencies, finding the expert evidence of the builder more reliable.

The court also dismissed the negligence claim against the municipality, finding it met the standard of reasonable care.

The homeowners were ordered to pay the builder $558,095.52 for the unpaid balance of the contract and extras, less credits for incomplete work.

The applicants sought to control access to a private road crossing their property, which the respondents used for vehicular access to their own property.

The previous license agreement between the parties had expired.

The court found that the respondents had no legal right to use the road beyond the limited statutory rights under the Road Access Act.

Balancing the parties' competing interests, the court granted a conditional closing order, allowing the applicants to install a locked gate.

Conditions included providing keys to all property owners relying on the road for access, installing a "knox box" for emergency services, prohibiting key reproduction without consent, and requiring equal sharing of costs for installation, maintenance, and road upkeep among all benefiting property owners.

The applicants' request to restrict the respondents' property use based on zoning bylaws was denied.

Honey Bee (Hong Kong) Limited sued VitaSound Audio Inc. and its principals for repayment of a US$500,000 loan and personal guarantees, plus default interest.

VitaSound counterclaimed, alleging Honey Bee breached an investment agreement by failing to supply audio devices and sought equitable set-off for an alleged delivery shortfall.

The court found no enforceable oral amendment to the investment agreement, which required written modifications.

It concluded that VitaSound, not Honey Bee, breached the investment agreement by declining to accept specified PAE-300 units.

Consequently, Honey Bee did not breach its obligations by ceasing supply after VitaSound's default on the loan.

The court dismissed VitaSound's counterclaim and found that equitable set-off was not applicable due to the lack of a clear connection between the claims and VitaSound's prior default.

Judgment was issued in favour of Honey Bee for the loan principal and default interest.

The plaintiff, AVS Transport Inc., sued Wim van Ravenswaay, Trevor van Ravenswaay, and 1046854 Ontario Inc. (W.G. Equipment Enterprises) for conversion of a stolen Mack dump truck.

The corporate defendant conceded liability for conversion of a "front clip" from the truck.

The court found William van Ravenswaay personally liable for conversion due to willful blindness regarding the stolen nature of the front clip, as he was the directing mind of the company and aware of industry fraud.

Trevor van Ravenswaay, an employee, was found not personally liable as there was no evidence he knew or ought to have known the front clip was stolen, despite his low credibility and significant role in the business.

Damages were assessed at $60,311.65, including the value of the front clip, loss of use, and investigation costs, with prejudgment interest.

Following a successful breach of contract action and defence of a counterclaim, the successful plaintiffs sought costs.

The court considered the outcome of the litigation, the length of the trial, the issues involved, and the amounts at stake.

Finding the plaintiffs entirely successful, the court held that they were entitled to costs on a partial indemnity basis.

The court determined that $20,000 represented a reasonable amount that would have been contemplated for the proceeding.

The defendants were ordered to pay that amount.

The plaintiffs sued for breach of contract arising from the sale of a dry cleaning business, alleging the defendants failed to pay the full purchase price.

Although the written agreement stated a purchase price of $300,000, the court accepted evidence of an oral agreement establishing a true purchase price of $360,000.

After crediting payments already made, the court found that $49,000 of the purchase price remained unpaid along with additional contractual payments for continued use of the business name.

The defendants’ counterclaim for negligent misrepresentation regarding the condition of a boiler was dismissed, as the written agreement contained no warranties as to condition and the defendants had the opportunity to inspect the equipment.

Judgment was granted to the plaintiffs for $49,240.66 plus pre‑judgment interest.

The defendants moved to set aside or stay an order for possession and writ of possession issued following default judgment on a mortgage debt and to compel an accounting of distrained assets.

They argued that enforcement should be suspended under s. 22 of the Mortgages Act due to an alleged failure by the mortgagee to provide a statement of arrears.

The court found that the mortgagee had complied with its obligations by providing notice of sale and the amount owing.

The defendants had also failed to establish that they were not served with the statement of claim and failed to disclose the full litigation history when obtaining an earlier ex parte stay.

As no defence on the merits or basis for equitable relief was demonstrated, the court declined to stay the writ of possession.