John J. Adair

Following a successful summary judgment motion by the defendant dismissing claims against it, the court determined the appropriate costs awards relating to both the summary judgment motion and an earlier procedural motion for directions under rule 34.14 of the Rules of Civil Procedure.

The court held that the plaintiffs were successful on the earlier procedural motion and awarded them partial indemnity costs of $10,000.

However, the defendant was entirely successful on the summary judgment motion and was entitled to partial indemnity costs.

After considering proportionality, reasonableness, and the complexity of the litigation, the court reduced the defendant’s claimed fees and fixed total costs for the summary judgment motion at $129,153.32.

After setting off the $10,000 owed to the plaintiffs for the procedural motion, the court ordered two plaintiffs to pay the defendant $119,153.32 in costs.

The appellants appealed a trial judgment, arguing the trial judge failed to consider relevant evidence and erred in his reasoning regarding a house lease and a barn lease.

The Court of Appeal found no error, noting it was open to the trial judge to accept the respondent's evidence and to consider the house lease for the purpose of determining the quantum of unjust enrichment.

The appeal was dismissed.

The plaintiffs sued the defendant art gallery for damages to a plaster sculpture allegedly attributed to Auguste Rodin, which was loaned to the gallery for a failed 'art flip' tax scheme.

The defendant brought a motion for summary judgment to dismiss the action as statute-barred and for judgment on its counterclaim for unpaid storage fees.

The court found that the plaintiffs' agents knew of the damage more than two years before the action was commenced, and this knowledge was imputed to the plaintiffs.

The court granted summary judgment, dismissing the plaintiffs' action as statute-barred and awarding the defendant $8,522.55 on its counterclaim for storage costs.

The Attorney General of Canada moved to vary a Mareva injunction obtained by victims of terrorism seeking to enforce a U.S. judgment against Iran.

The motion concerned whether Iranian diplomatic property in Canada could remain subject to the injunction.

The court held that the plaintiffs had failed to make full and frank disclosure when obtaining the original ex parte orders, including failing to disclose unsuccessful attempts to attach similar Iranian diplomatic property in the United States and mischaracterizing relevant Canadian authority concerning the Vienna Convention and Crown prerogative.

Given the material nondisclosure and the principles of diplomatic immunity under the State Immunity Act and Foreign Missions and International Organizations Act, the court varied the Mareva order to exclude assets certified by the Minister of Foreign Affairs as diplomatic property.

The plaintiffs brought an ex parte motion seeking confirmation that certain bank accounts identified by the federal government as assets of a foreign state fell within the scope of an existing Mareva injunction issued in an action to recognize and enforce a U.S. terrorism judgment.

Relying on information provided by the Department of Foreign Affairs pursuant to s. 12.1 of the State Immunity Act, the plaintiffs argued that the accounts constituted assets of the defendants in Canada and should therefore be frozen under the existing order.

The court held that the plaintiffs had established a strong arguable case that the identified accounts were subject to the Mareva order and confirmed that the injunction applied to those accounts.

However, broader disclosure of full banking records was limited to situations where the accounts were held directly by entities already named in the injunction, with further directions reserved for later proceedings.

A respondent moved to set aside an ex parte Certificate of Pending Litigation registered against a property following the death of the applicant’s son, who had lived in the property with the respondent spouse but was not on title.

The estate alleged that the respondent held an interest in the property subject to constructive or resulting trust arising from the deceased’s financial contributions to the home during the marriage.

The court held that the CPL should be discharged to permit the pending sale to close, but found a serious issue to be tried regarding the estate’s equitable claim to a portion of the respondent’s share of the proceeds.

As a result, the court ordered that the respondent’s one‑third share of the net proceeds be paid into court pending further determination of the estate’s claim.

The plaintiffs sought partial indemnity costs following successful motions relating to enforcement proceedings against foreign state defendants.

The motions required complex investigation into assets in Canada and consideration of amendments to the State Immunity Act concerning state support for terrorism.

The court found no reason to depart from the general rule that costs follow the event and accepted that the plaintiffs’ counsel undertook significant investigative and expert consultation work.

The defendants’ conduct, including concealing assets to avoid claims, supported an award of costs.

The court ordered partial indemnity costs, inclusive of taxes and disbursements, payable jointly and severally by the defendants.

The defendants brought motions to strike various portions of a statement of claim in an action alleging wrongful dismissal, defamation, conspiracy, inducing breach of contract, and intentional infliction of mental distress.

The court considered whether numerous allegations offended the pleading requirements of the Rules of Civil Procedure, including Rules 25.06 and 25.11.

Some paragraphs were struck as irrelevant, speculative, or lacking material facts, including portions relating to unrelated background allegations and speculative assertions.

Other allegations, including those concerning conspiracy and alternative pleadings regarding defamatory communications, were found to sufficiently plead material facts and were allowed to stand.

The court also ordered the plaintiff to provide further particulars for certain allegations and granted leave to amend where appropriate.

Investor plaintiffs alleged fraud, knowing receipt, and unjust enrichment against the principal of an investment company and related parties following the company’s bankruptcy.

They brought a motion seeking ex parte Mareva injunctions and, alternatively, Norwich orders against financial institutions holding accounts of the defendants.

The court held that ex parte relief requires strict full and frank disclosure and evidence of extraordinary urgency.

Because the motion record contained inaccuracies regarding the state of the pleadings and omitted a filed statement of defence, and because the defendants had long been aware of the litigation and potential asset-freezing relief, the plaintiffs failed to justify proceeding without notice.

The court therefore declined to hear the motion ex parte and required that notice be given to the responding parties.

The defendants sought leave to appeal an order lifting a stay of the plaintiff's constructive dismissal action.

The defendants argued the action was barred because the Public Hospitals Act provides a comprehensive code for disputes over hospital privileges.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the motion judge's conclusion that the hospital failed to demonstrate the decision to substantially alter the plaintiff's privileges was made pursuant to the Act or hospital by-laws.

Following the dismissal of a proposed class action certification motion and the dismissal of claims against one defendant for failure to disclose a reasonable cause of action, the court determined the appropriate costs awards.

The defendants sought substantial partial indemnity costs for successfully resisting certification and for obtaining dismissal of the claim against the diocesan defendant.

The plaintiffs and the Class Proceedings Fund argued for reductions based on public interest, access to justice concerns, and alleged unnecessary litigation steps.

The court rejected arguments for a public interest or access-to-justice discount and confirmed that the ordinary rule that costs follow the event applies in class proceedings.

The Grenville defendants were awarded their full claimed costs, while the diocesan defendant’s claim was reduced as excessive.

A physician brought a motion to lift a stay of a civil action alleging constructive dismissal against a hospital and department head.

The defendants argued that disputes concerning revocation or alteration of hospital privileges must be resolved through the statutory review and appeal process under the Public Hospitals Act, which provides a comprehensive code for such matters.

The court held that although the impugned “double coverage” scheduling requirement may have substantially altered the physician’s hospital privileges, the evidentiary record did not establish that the decision was made under the hospital’s bylaws as required to trigger the statutory appeal regime.

Because the hospital bylaws were not before the court, the court could not conclude that the statutory process applied.

The stay was therefore lifted and the constructive dismissal action was permitted to proceed.

The appellant law firm appealed a motion judge's order excluding its final account from a court-ordered assessment of its accounts, and a subsequent order awarding the respondents full indemnity costs.

The Court of Appeal dismissed the appeal regarding the exclusion of the account, finding that the appellant failed to deliver the account 'forthwith' as explicitly required by the prior Assessment Order.

However, the Court allowed the appeal regarding costs, substituting a partial indemnity award because there was no finding of reprehensible conduct by the appellant to justify a full indemnity scale.

The appellants appealed a jury's damages assessment arising from a motor vehicle accident.

The jury awarded $40,000 in general damages (reduced to $10,000 after a statutory deduction) and zero dollars for other claims, despite the appellants claiming over $50,000.

The Court of Appeal held it lacked jurisdiction, as section 19(1.2) of the Courts of Justice Act directs appeals to the Divisional Court when the amount ordered to be paid, or the amount assessed for a dismissed claim, is under $50,000.

The appeal was transferred to the Divisional Court.

The plaintiffs, Tim Hortons franchisees, brought a proposed class action against the franchisor alleging breach of contract, breach of the duty of good faith and fair dealing, unjust enrichment, and breaches of the Competition Act.

The claims centered on the franchisor's requirement that franchisees purchase par-baked donuts and Lunch Menu ingredients at allegedly commercially unreasonable prices.

The franchisor moved for summary judgment.

The court granted summary judgment dismissing all claims, finding that the franchisor had the contractual right to require the purchases and set the prices, and that there was no breach of the duty of good faith or the Competition Act.

The certification motion was therefore moot, though the court indicated it would have certified certain common issues had the claims survived.

The plaintiff, a professional hockey player, was seriously injured by the defendant during a game.

The plaintiff sued the defendant and the team owners, alleging vicarious and direct liability.

The defendant issued a third party claim against the head coach.

The defendants and third party subsequently entered into a secret settlement agreement that dismissed the cross-claims and third party claim, and apportioned liability among them.

The plaintiff brought a motion to compel production of the settlement agreement.

The court granted the motion, holding that the agreement changed the landscape of the litigation and must be disclosed to ensure trial fairness, regardless of whether settlement privilege is a class privilege or determined on a case-by-case basis.

The appellant suffered catastrophic injuries after slipping and falling on stairs in a restaurant.

The trial judge dismissed the action against the respondent landlord, finding it was not an 'occupier' under the Occupiers' Liability Act.

On appeal, the appellant argued the trial judge misapprehended the tenant's evidence and the terms of the lease regarding the landlord's responsibility for repairs.

The Court of Appeal dismissed the appeal, holding that the trial judge correctly interpreted the lease as a completely carefree net lease and reasonably assessed the evidence of the parties' conduct to conclude the landlord lacked the necessary control to be an occupier.

Following the release of reasons for judgment, the Court of Appeal for Ontario fixed the costs of the motion payable to the appellant at $12,000 for fees and $1,000 for disbursements, plus H.S.T.

The appellant, an Ontario resident, brought a libel action in Ontario against the out-of-province publishers of an academic journal and the author of a negative book review.

The motion judge stayed the action, finding no real and substantial connection to Ontario and that Ontario was not the convenient forum.

The Court of Appeal allowed the appeal, applying the Van Breda framework to find that Ontario had presumptive jurisdiction because paper copies of the journal were distributed in Ontario, constituting a tort committed in the province.

The court further held that the respondents failed to rebut the presumption and that no other forum was more convenient.

The appellant, who was struck by a vehicle as a child pedestrian, appealed the dismissal of her action following a jury trial.

She argued the trial judge erred in permitting cross-examination on a hospital record and in the jury charge regarding the driver's duty of care and proper lookout.

The Court of Appeal dismissed the appeal, finding the trial judge's limiting instructions cured any prejudice from the cross-examination and the jury charge adequately equipped the jury to assess the driver's negligence and reverse onus.