John H. Yach

The Estate of George Kargakos was successful on a motion for possession of a jointly-held property and sought partial indemnity costs of $38,607.62.

The respondent argued costs should be reserved to the trial judge, denied entirely, or reduced, and requested a 12-month payment period.

The court declined to reserve costs or deny them, finding the estate was entirely successful.

After considering the factors under Rule 57.01, including the lawyers' hourly rates and the complexity of the issues, the court fixed costs at $30,415.12 inclusive of fees, disbursements, and HST.

Due to the respondent's plea of hardship, the court permitted payment in quarterly instalments over 12 months.

The moving party estate sought an interim order for exclusive possession and sale of a commercial/residential property co-owned by the deceased father and the responding party son.

The son opposed the sale, arguing he had an oral agreement with his father to inherit the property and that a sale would defeat his claim for sole ownership at trial.

The court granted the motion, finding the property was vacant, deteriorating, and accumulating tax arrears, and that the son's opposition did not amount to malicious, vexatious, or oppressive conduct by the estate that would justify refusing a sale under the Partition Act.

The appellants, the Better Business Bureau of Ottawa-Hull Incorporated and Better Business Bureau of Ottawa-Hull Inc., appealed a Divisional Court decision that had allowed an appeal by Walsh Energy Inc. in a defamation action.

The trial judge had dismissed the defamation claim, finding that the BBB's D- rating assigned to Walsh was not defamatory and was protected by the defence of fair comment.

The Divisional Court reversed, finding the D- grade was defamatory and ordering a new trial on the issues of fair comment, malice, and damages.

The Court of Appeal allowed the BBB's appeal, finding that the Divisional Court erred in ordering a new trial on fair comment, as the record was sufficient to establish the defence.

The court also reduced the trial judge's costs award from $348,135.96 to $175,000 as being excessive and contrary to the fundamental objective of access to justice.

The applicant mother sought costs following her successful motion for judgment enforcing a settlement agreement on custody and access, and for retroactive spousal and child support.

The respondent father argued his offer to settle was better than the result achieved.

The court found the applicant was the successful party, as the respondent's offer did not include retroactive spousal support and he had unreasonably refused to honour the negotiated settlement agreement.

The court awarded the applicant her claimed partial indemnity costs of $4,607.30, finding them reasonable and proportional.

The applicant moved for judgment based on a settlement agreement regarding custody and access, as well as interim spousal and child support.

The respondent argued the settlement was not binding because it did not comply with Rule 18 of the Family Law Rules.

The court found that while the correspondence did not meet the strict requirements of Rule 18, it constituted a binding agreement under general contract principles.

The court ordered final custody and access based on the agreement, awarded interim compensatory spousal support retroactive to the date the application was issued, and determined the parties' incomes for support calculations.

This is a costs decision following the successful setting aside of an Anton Piller Order in an employer-employee dispute.

The defendants sought full indemnity costs of over $450,000, alleging the plaintiffs' principal engaged in reprehensible conduct and failed to make full disclosure on the ex parte motion.

The plaintiffs argued no costs should be awarded due to an unaccepted settlement offer, or alternatively, costs should be significantly reduced.

The court found the defendants' costs claim to be grossly excessive and noted that both parties engaged in acrimonious and uncooperative conduct.

The court awarded the defendants $100,000 in partial indemnity costs, less $10,000 awarded to the plaintiffs for a production motion, payable in any event of the cause.

The defendant Ministry moved under rule 21.01(1)(a) of the Rules of Civil Procedure to strike the plaintiff’s statement of claim for failure to provide the Crown with 60 days’ notice under s. 7(1) of the Proceedings Against the Crown Act.

The plaintiff had previously filed a judicial review application and affidavit outlining allegations against the Ministry and later indicated verbally that a civil action would follow.

The court held that the documentation provided sufficient particulars identifying the source of the complaint and communicated a dispute that could reasonably be anticipated to result in litigation.

Contextual verbal communication between counsel could be considered to provide context to the written materials.

The court concluded that the notice requirement had been satisfied and dismissed the motion.

Corporate plaintiffs operating heating and air conditioning businesses alleged defamation arising from online reliability ratings published by a consumer organization.

The plaintiffs argued that letter grades assigned under a revised rating system and references to unresolved complaints damaged their business reputations.

The court held that the ratings and accompanying explanations, when read in context of the website’s disclaimers and methodology, would not lower the plaintiffs in the estimation of a reasonable member of the public and therefore were not defamatory.

In any event, the publications would have been protected by qualified privilege and the defence of fair comment.

No malice was established and the action was dismissed.