Jeff Van Bakel

This costs endorsement addresses the allocation and quantum of costs following the dismissal of a motion for intervention by Gregory John Monforton, the former lawyer for the plaintiffs, in a complex civil action.

The court reviews the governing legal principles for costs in Ontario, including the discretion under the Courts of Justice Act and the Rules of Civil Procedure, and applies them to the facts.

The court finds that the three sets of responding parties—CP Rail, Andrew Williams, and the Corporation of the Town of Lakeshore—are each entitled to their own costs, rejects the argument that only one set of costs should be awarded, and reduces the amount claimed by CP Rail for preparation of its factum as excessive.

The court fixes costs in the amounts of $40,553.48 to CP Rail, $16,276.61 to Andrew Williams, and $20,110.95 to Lakeshore, all payable by the proposed intervenor.

The appellant, Essex Condominium Corporation No. 125 (ECC 125), appealed a partial summary judgment that dismissed its claim for unpaid common expense fees against the respondents based on a limitations defence.

The Court of Appeal found that the motion judge erred by reversing the burden of proof on the issue of discoverability under the Limitations Act, incorrectly placing the onus on the plaintiff to disprove that its claim was statute-barred.

The Court clarified that the burden remains on the defendant to prove the claim was discoverable.

The appeal was allowed, setting aside the summary judgment, and directing the claim for unpaid common expense fees to proceed to trial.

A proposed intervenor, a former lawyer for the plaintiffs, sought leave to intervene in a motion concerning the interpretation of a settlement agreement.

The intervenor argued he might be adversely affected by the outcome due to a potential professional negligence claim.

The court found that while the intervenor met the "adversely affected" criterion under Rule 13.01(1)(b), his intervention was not warranted.

The court determined that the proposed evidence was subject to solicitor-client and settlement privilege, which had not been waived, thus preventing a useful contribution.

Furthermore, the intervention would cause undue delay and prejudice to the existing parties, particularly the minor plaintiffs, in a private dispute.

The motion for intervention was dismissed.

This appeal addressed the Ontario court's jurisdiction over an action that overlapped with earlier proceedings in Nova Scotia involving the same parties.

The appellant sought to stay the Ontario action, arguing lack of jurisdiction simpliciter and that Nova Scotia was the more convenient forum.

The Court of Appeal, conducting a fresh analysis due to incomplete lower court reasons, affirmed Ontario's jurisdiction simpliciter but found Nova Scotia to be clearly the more appropriate forum.

This decision was based on the significant overlap of issues and the high risk of inconsistent findings between the two actions.

The Ontario action was stayed on an interim basis.

The appellants appealed the dismissal of their action for delay under Rule 48.14(7) of the Rules of Civil Procedure.

The action, alleging historic sexual and physical abuse from 1966-1974, was filed in 2015 but had seen little progress by 2020.

The motion judge found no acceptable explanation for the delay, including an 18-month period where former counsel explored a class action.

The appellants argued the judge failed to contextualize the delay given the absence of limitation periods for their claims and erred in characterizing counsel's decision to suspend the action.

The Court of Appeal dismissed the appeal, affirming the contextual approach to delay but finding no error in the motion judge's conclusion that the delay was egregious and unexplained, despite the nature of the claims.

Costs were awarded to the respondents.

The defendants sought costs after a Status Hearing was resolved on consent.

The plaintiff's action had not been set down for trial within five years, prompting the defendants to schedule a case conference which the plaintiff failed to attend.

A Status Hearing was subsequently ordered.

The plaintiff eventually provided materials explaining the delay and the parties agreed to a timetable.

The court found that the plaintiff's initial non-responsiveness and failure to attend the case conference caused the defendants to incur unnecessary costs.

The court awarded the defendants costs fixed at $2,500.

The defendant Belfor moved for a declaration that audio recordings made by the plaintiff of conversations with its former lawyers were not subject to solicitor-client privilege, arguing deemed or implied waiver due to inadvertent disclosure and the plaintiff's state of mind being in issue.

The court dismissed the motion, finding no deemed waiver as legal advice was not material to the claim, and no implied waiver despite counsel's delay, emphasizing that privilege belongs to the client and no unfairness would result from its maintenance.

The plaintiffs sought an interim order for costs against the LawPro defendants to fund their action for malicious prosecution, conspiracy, and negligent investigation arising from a prior arson prosecution.

The court dismissed the motion, finding that the plaintiffs failed to establish impecuniosity with robust particularity, as they had substantial real estate equity and failed to account for over $1.2 million previously paid to them by LawPro.

Furthermore, the court found no special circumstances warranting an advance costs order, as the case was a private dispute without a broader public interest.

The defendant brought a motion for security for costs against the plaintiffs in a breach of contract action regarding broadcasting airtime.

The court found that the corporate plaintiff had insufficient assets in Ontario and that the individual plaintiff's claim was frivolous and vexatious as he had no personal contract with the defendant.

The plaintiffs failed to establish impecuniosity due to inadequate financial disclosure and suspicious property transfers.

The court ordered the plaintiffs to post $75,000 in security for costs in installments.

The appellants appealed a Master's decision dismissing their franchise dispute action for delay under Rule 24.01(1).

The action had been commenced in 2003 and struck from the trial list in 2010, with significant periods of inactivity largely attributed to the appellants' former counsel.

The Divisional Court denied the appellants' request to introduce fresh evidence of LinkedIn searches of the respondent's former employees.

The court upheld the Master's findings that the delay was inexcusable and that the passage of time and corporate restructuring had resulted in the loss of key witnesses, creating a substantial risk that a fair trial was no longer possible.

The appeal was dismissed.

The defendant manufacturer brought a motion to set aside an ex parte order that granted the plaintiffs leave to amend their statement of claim to add the manufacturer as a party.

The manufacturer argued the applicable limitation period had expired and the order was obtained without notice.

The court dismissed the motion, finding that the plaintiffs had provided a reasonable explanation for the delay in identifying the manufacturer and met the low evidentiary burden to establish a genuine issue regarding discoverability.

Although the court criticized the plaintiffs' counsel for failing to provide notice, it concluded that the original order would not have changed had notice been given.

In a joint cross-border insolvency trial concerning the allocation of approximately $7.3 billion in lockbox funds from the sale of global business lines and residual intellectual property, the court interpreted the Master R&D Agreement as an operating transfer-pricing document that granted limited licence rights but did not govern post-insolvency allocation.

The court rejected both the position that one Canadian debtor owned all sale proceeds by virtue of legal title and the position that the EMEA debtors jointly owned all intellectual property by operation of law.

Applying unjust enrichment principles and the broad remedial jurisdiction available in CCAA proceedings, the court held that a just result required a pro rata allocation among debtor estates based on allowed claims.

The court further directed that duplicate claims be counted only once for allocation purposes, that intercompany claims be included, and that interim distribution proposals be brought forward.

The plaintiffs moved for leave to amend their statement of claim in an action against former accountants arising from allegedly negligent accounting and tax advice.

The responding defendant argued that certain amendments advanced new causes of action for breach of contract and breach of fiduciary duty after expiry of the limitation period, and that other amendments withdrew admissions requiring leave under Rule 51.05.

The court held that the proposed amendments merely particularized allegations already pleaded and added facts supporting the original right of action, rather than asserting new causes of action.

The court also held that the impugned pleadings did not constitute admissions within Rule 51.05.

Leave to amend was granted.

The defendant brought a motion to set aside a default judgment obtained by the plaintiff for the repayment of allegedly improper invoices for engineering services.

The court found the defendant's explanations for failing to defend the action and for the five-month delay in bringing the motion to be unacceptable and lacking credibility.

However, noting that the defendant had a weak but arguable defence on the merits, the court exercised its discretion to allow the default judgment to be set aside, but only on the strict condition that the defendant pay the full judgment amount plus $10,000 as security for costs into court within 30 days.

The applicant sought recognition and enforcement in Ontario of a Kansas default judgment obtained against the respondent for breach of contract, fraud, breach of fiduciary duty, and sales losses.

The respondent resisted enforcement on the grounds that the foreign judgment was obtained by fraud and in breach of natural justice.

The court held that a real and substantial connection existed between Kansas and both the dispute and the respondent.

The alleged non‑disclosure of insurance proceeds did not constitute fraud and arguments regarding the validity of damages improperly attempted to relitigate the merits.

The Kansas procedures, including shorter response timelines and different default judgment rules, nonetheless satisfied principles of natural justice.

The respondent, a former bankrupt, brought a motion to dismiss the appellant's appeal of three costs orders.

The appellant cross-moved for leave to appeal.

The Court of Appeal dismissed the appeal in respect of the first two costs orders, finding they had either been finally disposed of previously or were significantly out of time with no satisfactory explanation for the delay.

The Court granted leave to appeal the third costs order but ordered the appellant to post $75,000 in security for costs within 30 days, failing which the remainder of the appeal would be dismissed.

The respondent brought a motion under rule 57.07 of the Rules of Civil Procedure for an order that the appellant, a non-party lawyer, personally pay the costs of the litigation.

The appellant moved to strike the motion, arguing it was barred by the two-year limitation period in s. 4 of the Limitations Act, 2002 and was an abuse of process.

The motion judge dismissed the appellant's motion.

The Court of Appeal upheld the decision, confirming that a motion within an existing action is not a 'proceeding' for the purposes of s. 4 of the Limitations Act, 2002, and found no evidence to support the abuse of process claim.

The respondent settled litigation with his former business partner and subsequently brought a motion under Rule 57.07 of the Rules of Civil Procedure seeking costs personally against the partner's former lawyer.

The lawyer brought a motion to strike the costs motion, arguing it was barred by the two-year limitation period in s. 4 of the Limitations Act, 2002 and was an abuse of process.

The motion judge dismissed the motion to strike.

The Court of Appeal upheld the decision, finding that a motion within an existing action is not a 'proceeding' under s. 4 of the Limitations Act, 2002, and that the abuse of process arguments were matters to be determined on the merits of the Rule 57.07 motion.