John W. Bruggeman

Following a decision on an application regarding a solicitor's retainer agreement, the successful respondent lawyer sought full indemnity costs of $37,420.53.

The applicants argued no costs should be awarded.

The court considered the factors under Rule 57.01, noting the matter was unnecessarily complicated by both sides but the respondent was entirely successful.

The court declined to award full indemnity costs and fixed costs at $15,000 inclusive of fees, disbursements, and HST.

The applicants, former clients of the respondent lawyer, brought an application to determine whether their retainer agreement authorized the respondent to hire and charge for another lawyer's services.

They also brought motions for civil contempt, alleging the respondent breached prior court orders regarding the filing of affidavits and sealing of documents.

The court found that while specific clauses regarding experts and other lawyers in the firm did not apply, the general authorization clause, combined with the applicants' knowledge and consent, permitted the respondent to retain the other lawyer.

The contempt motions were dismissed as the applicants failed to prove intentional breach beyond a reasonable doubt.

The matter of the specific fees was referred back to the assessment officer.

The plaintiff brought a motion to restore two motor vehicle accident actions to the trial list after they were dismissed by the trial judge for failure to comply with trial management orders.

The Court of Appeal had referred the matters back for reconsideration on a more fulsome record.

The Superior Court dismissed the motion and both actions, finding that the plaintiff remained in intentional breach of previous trial management orders, failed to provide new medical evidence, offered no acceptable explanation for the extraordinary delay (over 15 years for the first action), and failed to demonstrate that the defendants would not suffer non-compensable prejudice.

The appellant appealed a trial judge's finding that advancements of funds from his father totalling $157,414 were gifts rather than loans.

The advancements were invested in the matrimonial home held in the appellant's name.

The characterization of these funds as gifts or loans directly affected the calculation of the appellant's net family property in the family law proceeding.

The trial judge found the advancements were gifts and therefore included in the appellant's net family property.

The appellant argued the trial judge reversed the burden of proof and erred in fact and law.

The Court of Appeal upheld the trial judge's decision, finding no reversals of the burden of proof and no palpable and overriding errors in the evaluation of evidence.

The respondent brought a motion to set aside the registration of a child support order made by a Polish court.

The order had been obtained by the applicant without notice to the respondent while he was in Ontario with a custody order.

The court found all three grounds for setting aside the registration were satisfied: the respondent lacked proper notice and opportunity to be heard, the order was contrary to public policy given the applicant's abduction of the child and contempt of Ontario court orders, and the Polish court lacked jurisdiction.

The deemed application for child support was dismissed, and the applicant was prohibited from commencing further proceedings in Ontario without purging her contempt or obtaining leave of court.

Costs were awarded on a full recovery basis due to the applicant's bad faith conduct.

The appellant appealed the dismissal of her actions by the trial judge.

The Court of Appeal found that the trial judge did not have a complete picture of the facts and circumstances when dismissing the case.

The appellant, a self-represented litigant with language issues, was non-compliant with a trial management order at the time set for trial, and her main liability witness (her brother) had been recently injured and hospitalized in Ecuador.

The Court of Appeal allowed the appeals, set aside the trial judge's orders, and directed the appellant to bring a motion within 60 days before a Superior Court judge to demonstrate why the matters should proceed, on a more fulsome record including medical evidence.

The court determined costs following competing motions concerning enforcement of minutes of settlement in a family law dispute.

The respondent initially denied the existence of a binding settlement and brought a cross‑motion seeking various interim remedies but ultimately consented to judgment based on handwritten minutes of settlement previously executed by all parties.

The court found that the respondent’s affidavit evidence denying the agreement was inconsistent with her later position and constituted unreasonable litigation conduct that necessitated extensive motion materials and preparation.

Applying Rule 24 of the Family Law Rules and the principles governing costs awards, the court held that the moving party had been entirely successful and was entitled to costs.

Costs were fixed at $30,000 all-inclusive and ordered payable from settlement funds held in trust.

This costs endorsement followed multiple motions in a product liability action continued by a bankruptcy trustee after the bankrupt plaintiff's discharge.

The court applied s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure to determine fair and reasonable partial indemnity costs, considering complexity, proportionality, party conduct, and the absence of settlement offers.

The court rejected the responding parties' attempt to revisit prior costs entitlement based on alleged delay, finding aspects of their motion conduct unreasonable and cost-increasing.

Costs of $46,430.97 were awarded to the trustee on the other motions, while the trustee was ordered to pay $2,924.36 for the undertakings motion.

The applicant solicitor moved to oppose confirmation of an assessment officer's report reducing a legal account rendered in relation to motor vehicle accident benefits litigation.

The court held that the assessment officer's reasons were inadequate because they did not meaningfully apply the nine Cohen factors and failed to demonstrate an intelligible path of reasoning, amounting to an error in principle.

Rather than remit the matter for a further assessment, the court conducted the assessment itself.

Applying the relevant factors, the court allowed a $100,000 success premium and fixed the fee at $250,000, while otherwise confirming the report and certificate.

The defendants, a dentist and an oral surgeon, brought a motion for summary judgment to dismiss the plaintiff's action for dental malpractice and battery.

The plaintiff alleged that the defendants extracted the wrong tooth.

The court found that the case turned heavily on the credibility of the parties, particularly the plaintiff, and that the documentary record alone was insufficient to resolve the factual disputes.

Applying the principles from Hryniak v. Mauldin, the court concluded that a full trial was not necessary but that oral evidence was required.

The court ordered an abbreviated summary trial under Rule 20.05 to determine the specific factual disputes and damages.

Following a family law motion concerning unanswered undertakings and further questioning, the court addressed competing claims for costs.

The respondent husband sought full recovery costs, alleging the applicant’s failure to comply with disclosure timelines and undertakings required by a prior case management order.

The court found the motion was necessary to compel compliance with several undertakings and that the respondent was more successful, but rejected allegations of bad faith sufficient to justify full recovery costs under the Family Law Rules.

Applying principles of fairness and reasonableness in assessing costs, the court awarded partial indemnity costs to the respondent.

The appellant law firm appealed a summary judgment dismissing its action for unpaid legal fees.

The motion judge found the action was a nullity under section 2(1) of the Solicitors Act because it was commenced before the final account was delivered, and that the claim was statute-barred under the Limitations Act, 2002.

The Divisional Court dismissed the appeal, holding that the motion judge made no error in law in allowing the defendants to amend their pleadings, finding the action a nullity, and concluding there was no genuine issue requiring a trial.

The defendant appealed an order dismissing its motion for summary judgment.

In his reasons, the motion judge stated that the plaintiff had established a prima facie duty of care, but the formal order simply dismissed the motion without invoking Rule 20.04(4) to make a binding determination of law.

The Court of Appeal held that the motion judge's finding was not binding on the trial judge and the order was interlocutory, not final.

The appeal was dismissed for lack of jurisdiction.

The plaintiffs brought a medical malpractice action alleging that a paediatrician breached the standard of care by failing to conduct follow‑up glucose testing and refer a child to an endocrinologist after a hypoglycaemic episode.

They argued that earlier investigation would have led to a diagnosis of panhypopituitarism and prevented a later hypoglycaemic seizure causing permanent brain injury.

The court considered conflicting expert evidence regarding the appropriate standard of care for paediatricians and whether a single episode of hypoglycaemia required referral or further testing.

The court preferred the evidence of defence experts that the episode was transient and that further investigation was not required absent recurring symptoms.

It also found the plaintiffs failed to establish causation, as it was speculative whether earlier referral would have prevented the later seizure.

The defendant Crown sought leave to appeal an interlocutory order dismissing its motion for summary judgment.

The underlying action alleged that the Family Responsibility Office (FRO) was negligent and breached a fiduciary duty by reinstating a defaulting payor's passport, allowing him to leave the country and evade support arrears.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the motion judge's conclusion that whether FRO owed a duty of care or a fiduciary duty to the support recipients were genuine issues requiring a trial.

The applicant mother sought directions concerning the implementation of a prior order governing her access to the parties’ child.

The dispute arose after the child resisted access and the respondent father unilaterally enrolled the child in a different school, making access more difficult.

The court emphasized the need to comply with a prior order directing counselling and a mini‑assessment under s. 30 of the Children’s Law Reform Act by a child psychiatrist to determine the source of the child’s resistance and his preferences regarding residence and schooling.

The court ordered the resumption of the mother’s access and directed both parties to immediately arrange the assessment and cooperate in providing information regarding schooling options.

The appellant, who acted as guardian of property for his mother, appealed a judgment dismissing his application to pass accounts and ordering him to repay misappropriated funds and unjustified legal expenses to the estate.

The application judge also deprived him of compensation due to his shocking conduct and blatant disregard of his fiduciary obligations.

The Court of Appeal upheld the majority of the application judge's findings, rejecting arguments of unfairness and insufficient reasons.

The appeal was allowed in part only to permit the estate to reimburse the appellant for a portion of legal fees if it successfully collects a specific costs award.

The defendant, Her Majesty the Queen in Right of Ontario (representing the Family Responsibility Office), moved for summary judgment to dismiss the plaintiff's action for negligence and breach of fiduciary duty.

The plaintiff alleged that the FRO negligently authorized the return of her ex-husband's suspended passport, allowing him to flee the country and evade over $200,000 in support arrears.

The court dismissed the motion, finding that the FRO owed a prima facie duty of care to the support recipient and that genuine issues regarding the standard of care and damages required a trial.

The respondent was assaulted by unidentified individuals while sitting in his vehicle at a gas station.

He escaped by driving away and believed he may have run over one of his assailants, claiming both physical and psychological injuries.

The appellant insurer terminated his statutory accident benefits, arguing the incident was not an 'accident' under s. 2(1) of the Statutory Accident Benefits Schedule.

The Court of Appeal held that the physical assault was an intervening act and not an accident directly caused by the use or operation of the vehicle.

However, the court found that the psychological injuries stemming from the respondent's belief that he ran over an assailant while fleeing could constitute an accident, requiring a trial on that issue.

A contested passing of accounts involving a guardian of property appointed to manage the finances of an incapacitated parent.

The applicant challenged substantial cash withdrawals and legal expenses claimed by the guardian.

The court found the accounts wholly inadequate and concluded that the guardian had improperly withdrawn more than $120,000 from the estate and failed to maintain proper records or explanations.

The court rejected post‑hearing attempts to introduce new evidence and denied the guardian any compensation.

The guardian was ordered to repay the improperly withdrawn funds and personally pay the applicant’s costs.