John I.G. Melia

This decision concerns the allocation of costs following a trial in which the plaintiffs, Faulkner Real Estate Ltd. and Judy Faulkner, sought damages for alleged exposure to mould in office space leased from the defendants, Sakto Corporation and Waterford Property Group Ltd. The plaintiffs initially claimed over $6,000,000, later reducing the claim to approximately $3,291,000, but were awarded only $4,000 as a partial rent abatement.

The court found the defendants to be the overwhelmingly successful parties and, after considering the offers to settle and other relevant factors, ordered the plaintiffs to pay the defendants' costs on a partial indemnity basis.

The Plaintiffs sought an express right-of-way for vehicular access over a portion of the Defendants' land (Part 6) to Upper Beverly Lake.

The Defendants denied this, asserting the right was a personal license for pedestrian access only, and brought a counterclaim.

The court examined the original grant's intention and surrounding circumstances, finding that Part 6 was historically designated for cattle use, was often muddy and inaccessible by vehicle, and that the grantor took steps to deter vehicular traffic.

The court concluded that the claimed easement for vehicular access did not accommodate the dominant tenement and was not capable of forming the subject-matter of a grant.

The Plaintiffs' claim was dismissed, and the Defendants' counterclaim was granted.

By consent, the Plaintiffs were granted a personal, non-transferable license for foot access and limited parking.

The defendant was successful on a summary judgment motion dismissing the plaintiff's construction lien claim on the basis of diplomatic immunity.

The defendant sought partial indemnity costs, while the plaintiff sought substantial indemnity costs based on a pre-hearing offer to settle.

The court found the plaintiff's offer was conditional and the motion's outcome was less favourable to the plaintiff than the offer's terms.

The court awarded the defendant partial indemnity costs fixed at $16,885.00, noting the complexity and novelty of the international law issues involved.

The defendant, Kingdom of Saudi Arabia, brought a motion for summary judgment to dismiss a construction lien claim registered by the plaintiff, Construction Excedra Inc., against its property.

The defendant argued that the property was diplomatic premises and thus immune from attachment under the Foreign Missions and International Organizations Act and Article 22 of the Vienna Convention on Diplomatic Relations.

The plaintiff contended that the property was not immune or that state immunity had been waived.

The court found that certificates issued by the Minister of Foreign Affairs were conclusive proof of the property's diplomatic status and immunity from attachment, granting the defendant's motion and ordering the lien discharged.

The moving party railway company brought an application for certiorari to quash a ruling of a justice of the peace in ongoing Provincial Offences Act proceedings.

The justice of the peace had dismissed a constitutional motion alleging that a municipal property standards order issued under the Building Code Act conflicted with the federal Heritage Railway Stations Protection Act under the doctrine of federal paramountcy.

The Superior Court held that the ruling was made during the course of trial and that the justice of the peace had jurisdiction to determine the constitutional issue.

Because an adequate appellate remedy existed after trial and no substantial wrong or miscarriage of justice was demonstrated, prerogative relief was inappropriate.

The application for certiorari was therefore dismissed and the trial ordered to continue.

The defendant, a former investment advisor, brought a motion for summary judgment to dismiss the plaintiff employer's action for breach of contract.

The plaintiff sought to recover amounts paid to settle a client's lawsuit, relying on an indemnity clause in the defendant's employment contract.

The defendant argued the claim was statute-barred under s. 18 of the Limitations Act, 2002, which imposes a two-year limitation period for contribution and indemnity claims running from the date the first alleged wrongdoer is served.

The court dismissed the motion, finding that the plaintiff's action was for breach of contract, not a claim for contribution and indemnity between wrongdoers.

Therefore, s. 18 did not apply, and the limitation period began to run when the settlement was reached, making the action timely.

The applicant sought an order under s. 100 of the Courts of Justice Act to vest an easement benefiting the respondents’ property so that a right-of-way could be registered in connection with a municipal site plan agreement and development project.

The respondents refused to execute the authorization required under the Land Titles Act to register the easement.

The court held that s. 100 does not confer standalone jurisdiction to vest property interests and can only be used where the applicant has an independent legal entitlement to the property interest.

Because the applicant had no claim to ownership or possession of the respondents’ lands and was effectively attempting to impose a benefit on an unwilling landowner, the court lacked jurisdiction to grant the order.

The application was dismissed with costs.

Following the dismissal of a motion brought by the plaintiff, the court determined the issue of costs.

Applying the general principle that costs follow the event, the court held that the defendants were entitled to costs on a partial indemnity basis.

The court rejected the defendants’ request for substantial indemnity costs, finding the motion was not unreasonable and there was no evidence of bad faith.

Considering the complexity and importance of the issues raised, the court fixed partial indemnity costs payable by the plaintiff to each defendant.