Jennifer McAleer

The plaintiff moved to set aside a Registrar’s order dismissing a civil action for delay arising from alleged workplace sexual assault and related constructive dismissal claims.

The court applied the contextual analysis described in Reid v Dow Corning Corp, considering explanation for litigation delay, inadvertence in missing the deadline to set the action down for trial, promptness of the motion, and prejudice to the defendants.

Although the action progressed slowly and counsel cited workload pressures, the court found there was no intentional delay and that the plaintiff had taken steps toward advancing the litigation.

The motion to set aside the dismissal was brought promptly and the defendants failed to demonstrate significant prejudice.

The court set aside the dismissal order and permitted the action and a related crossclaim to proceed.

Following a successful application, the court determined the appropriate quantum of costs payable by the unsuccessful party.

The applicant sought substantial indemnity costs relying on a lease provision and a prior offer to settle, while the respondent argued for a more limited award based on reasonable fees and proportionality.

The court found the lease provision ambiguous regarding the applicable scale of costs and applied ordinary principles governing the court’s discretion under the Courts of Justice Act and Rule 57.01.

Considering proportionality, the comparative bills of costs, and the necessity of expert evidence, the court fixed a mid-point between the parties’ proposed figures.

Interest on reimbursements was ordered at the Courts of Justice Act rate rather than the lease’s designated interest rate.

A commercial tenant sought declarations regarding the proper method for allocating property taxes under a shopping plaza lease and the proper allocation of tax shortfalls arising from statutory tax-capping rules between 2001 and 2008.

The court interpreted the lease to require use of MPAC valuation records (“working papers”) as the primary method of allocating property taxes rather than a proportionate-share-by-square-footage approach.

The court also addressed the landlord’s allocation of tax shortfall created by legislative caps, holding that the landlord’s historical allocation was arbitrary and lacked a principled basis.

Preferring the methodology of the tenant’s expert, the court held that shortfall should be allocated proportionately among eligible tenants, including uncapped shortfall tenants.

The tenant was therefore entitled to recalculation of taxes and potential refunds or credits based on the correct methodology.

Following the dismissal of an application seeking interpretation of a commercial lease concerning the calculation of property taxes, the successful respondent sought partial indemnity costs exceeding $75,000.

The applicant argued the amount was disproportionate to the approximately $160,000 in dispute and the relatively limited complexity of the proceeding.

The court applied the principles governing reasonable expectations of the losing party under the Boucher line of authorities and assessed the reasonableness of the time spent by counsel and the claimed disbursements.

Finding the claimed hours and overall expenditures excessive for an application hearing lasting less than a day, the court reduced the recoverable costs.

The landlord sought a declaration that the tenant’s share of property taxes under a commercial lease should be calculated on a proportionate share basis following the elimination of separate tenant assessments under amendments to the Assessment Act.

The tenant argued that the lease required the parties to determine what a separate assessment would have been using official information from MPAC valuation records.

The court interpreted the lease according to the parties’ intentions at the time of contracting and held that MPAC valuation records constituted sufficient official information to estimate a separate assessment.

Because the lease contemplated this scenario, the tenant’s taxes were properly calculated using the assessed value approach rather than proportionate share.

The landlord’s application for a declaration was dismissed.