John L. O’Kane

The defendants brought a motion under Rule 21.01(3)(b) to dismiss the plaintiff's action, arguing that the plaintiff, an undischarged bankrupt, lacked the legal capacity to commence the action.

The plaintiff contended this was a misnomer curable under Rule 5.

The court found that the property forming the basis of the claim vested in the trustee in bankruptcy upon the plaintiff's assignment into bankruptcy, and the plaintiff's failure to disclose these substantial assets to the trustee meant the action, commenced while he was an undischarged bankrupt, was a nullity.

The court distinguished the case from situations where a misnomer could be cured, noting the trustee was a distinct party and had not sought to be substituted.

The motion to dismiss was granted, and the action was deemed a nullity, having been commenced outside the limitation period if re-filed.

Following a decision dismissing the plaintiff law firm's claim for liquidated damages against a former partner, the parties sought directions on consequential issues.

The court ordered the plaintiff to pay $897.15 in interest for withholding the defendant's capital account funds, exercising its discretion under section 130 of the Courts of Justice Act.

The court also ordered the defendant to pay her portion of the actual costs to remove her from the firm's corporate and partnership registers, rather than an estimated amount.

Following a summary judgment motion where the defendant was substantially successful in defeating the plaintiff law firm's claim to enforce a liquidated damages clause, the court assessed costs.

The defendant sought partial indemnity costs of $46,750.08, while the plaintiff argued for $10,000.00.

The court found the motion to be of moderate complexity but noted some duplication of effort by the defendant's counsel.

Costs were fixed at $35,000.00 inclusive of HST and disbursements.

The plaintiff law firm sought to enforce a liquidated damages clause against a departing partner.

The defendant partner counterclaimed for repayment of a capital account loan and unpaid draw.

The court dismissed the plaintiff's claims, finding the liquidated damages clause inapplicable as the defendant's departure qualified as a retirement under the partnership agreement.

The court allowed the defendant's counterclaim for the capital account repayment and interest on the portion withheld by the firm, but dismissed the claim for the unpaid draw.

The applicant railway company sought a declaration that its railway right‑of‑way lands were exempt from municipal taxation under s. 315(1) of the Municipal Act, 2001, on the basis that the lands were leased to another entity for valuable consideration.

The court examined the contractual arrangements between the railway owner, a rail users’ consortium, and a licensed rail operator governing the operation and maintenance of the railway line.

Applying principles distinguishing leases from licences, the court held the agreements did not grant exclusive possession or create a landlord‑tenant relationship but instead resembled a joint venture or operational arrangement.

The court further found that the consortium did not pay rent or other valuable consideration within the meaning of the statute.

As a result, the railway lands were not exempt from municipal taxation.

Following a trial judgment under the Construction Lien Act where the plaintiff contractor succeeded on its lien claim, the court determined the appropriate costs award.

The court considered the discretionary framework under s. 86 of the Construction Lien Act and the factors in Rule 57.01 of the Rules of Civil Procedure.

Although the claim amount was modest, the court found the estate defendant’s intransigence and failure to critically assess and resolve the claim significantly lengthened the litigation.

Proportionality concerns were rejected, and the court concluded the successful plaintiff should recover substantial indemnity costs for most of the proceeding.

Costs of $29,000 were awarded against the estate defendant and $4,000 jointly against the defaulting defendants.

A subcontractor commenced an action under the Construction Lien Act seeking payment for labour and materials supplied during a residential renovation project.

The defendants disputed the identity of the contracting party, the quantum of work performed, the propriety of the charges, and alleged deficiencies and improper termination.

The court found that the subcontractor company, not the individual worker, contracted with the foreman’s company and performed the work as claimed.

Allegations of deficient work and contractual termination were rejected, and the court held that payments could properly be allocated to other outstanding accounts.

The defence that the contract was void under the doctrine of ex turpi causa due to a cash arrangement intended to avoid HST was rejected.

Judgment was granted for the subcontractor for the amount of the lien and against the defaulting defendants.

Following the dismissal of motions seeking injunctions preventing a retailer from using or disposing of pharmacy and patient information from pharmacies operating in its stores, the court addressed costs.

The moving parties sought substantial indemnity costs or, alternatively, no costs due to alleged improper conduct, public interest considerations, and the asserted novelty of privacy-related issues.

The court rejected those submissions and held that the successful party was entitled to costs on a partial indemnity basis.

Although the respondent claimed over $113,000, the court reduced the amount due to excessive staffing, high hourly rates, and unwarranted disbursements.

Costs were fixed at $75,000 inclusive of disbursements and taxes, payable jointly and severally by all unsuccessful parties.

Licensed pharmacists operating pharmacies within retail stores sought an interlocutory injunction restraining the retailer from selling or transferring pharmacy records to third‑party pharmacy operators following the closure of the stores.

The moving parties argued the records belonged to them under the license agreements and that privacy legislation governing personal health information prevented the transfer.

The court held that the agreements clearly provided that customer records belonged to the retailer, though it acknowledged a low‑threshold serious issue regarding the interaction of contractual terms with health‑information legislation.

The court found no irreparable harm because any business losses could be compensated in damages and patient privacy would not be breached under the statutory regime permitting transfer of records to a successor health information custodian.

The balance of convenience favoured allowing the transfers to ensure continuity of patient care.

The motions for injunction were dismissed.