Justin H. Nasseri

This decision addresses the costs for a three-day trial where the plaintiffs were largely successful.

The court considered the plaintiffs' Rule 49 offer to settle, which they argued triggered substantial indemnity costs, and the defendants' arguments against it, including the implied withdrawal of the offer by subsequent settlement discussions.

The court found that the plaintiffs' Rule 49 offer was not implicitly withdrawn by subsequent non-Rule 49 offers, distinguishing prior case law.

The court also assessed the reasonableness of the plaintiffs' claimed costs under Rule 57.01, reducing them due to excessive lawyer time, duplication of effort, and disallowing a specific disbursement for a legal opinion deemed unnecessary.

Ultimately, the defendants were ordered to pay the plaintiffs $147,966.49 in costs.

This endorsement resolves five outstanding issues between the parties following a prior judgment (2017 ONSC 5680).

The court determined that the quantum of the judgment should not be deferred despite ongoing related proceedings, that simple interest applies to the loan amounts, and accepted the defendants' position on pre-judgment interest for the deposit.

The court also affirmed that Tzimas J. remains the case management judge for outstanding cross-claims and lease issues, and ordered the Certificate of Pending Litigation (CPL) to be removed at the plaintiffs' expense.

Following a certification motion in a proposed class action by former junior hockey players seeking minimum wage and overtime pay, the court determined the costs awards.

The plaintiffs succeeded in certifying the action against the Canadian teams but failed against the American teams.

The court awarded the plaintiffs $1,212,065.63 in partial indemnity costs, with $500,000 payable forthwith and the balance in the cause.

The American teams were awarded $200,000 in costs, which the court ordered to be credited against the plaintiffs' award, akin to a Bullock or Sanderson order, reflecting that both sides were responsible for the excessive litigation expense.

The moving party, in the midst of complex family trust litigation, sought leave to withdraw admissions made in a previous affidavit and to file three new affidavits.

The moving party argued the admissions regarding multi-million dollar shareholder loans were made inadvertently due to confusion and reliance on her former, now-deceased counsel.

The responding parties opposed, arguing the admissions were formal and the new evidence was an attempt to repair her case mid-hearing.

The court granted the motion, finding the admissions were likely inadvertent, raised a triable issue, and caused no non-compensable legal prejudice to the responding parties.

The court emphasized the need to decide the case on its true merits rather than a solicitor's or party's mistake.

The applicants brought a motion to remove Cambridge LLP as solicitors of record for Sheila O’Donovan and to add Adam Cappelli as a party respondent.

The court applied a nine-factor test to assess the solicitor removal request, considering the likelihood of Mr. Cappelli being a witness and potential conflicts.

The court found no real conflict and upheld the client's right to choose counsel.

The motion to add Mr. Cappelli as a respondent was dismissed due to the advanced stage of the proceedings and delay by the applicants, though without prejudice to a future application for passing accounts.

This is a costs endorsement following an appeal and cross-appeal in a civil matter.

The respondents (Jarbeaus) were successful on the cross-appeal while the appellant (McLean) was unsuccessful on the appeal.

The court awarded costs to the Jarbeaus in the amount of $75,000, allocated as $18,000 to the cross-appeal and $57,000 to the appeal, inclusive of disbursements and applicable taxes.

The court declined to fix prejudgment interest or vary the trial costs award of $231,000.

The respondents purchased a defective new home from a builder and hired a negligent lawyer who failed to sue the engineer within the limitation period, incorrectly advising them they had no cause of action against the engineer.

After settling their first action, the respondents sued the lawyer for negligence.

The trial judge admitted the lawyer's negligence but characterized both the jury's damage assessments (cost to repair at $433,000 and diminution in value at $265,000) as perverse, awarded judgment for the lesser amount of $190,000 (after deducting the settlement amount), and significantly reduced the respondents' costs despite them bettering their settlement offer.

The Court of Appeal allowed the cross-appeal, finding the jury's assessments were not perverse, that damages should be awarded on a cost-to-repair basis at $433,000 without deducting the settlement amount, and that the respondents were entitled to substantial indemnity costs under Rule 49.10.

Family members brought a medical negligence action after a hospital patient died from viral myocarditis shortly after presenting to the emergency department.

A civil jury found two treating physicians liable and awarded $600,000 in damages.

On appeal, the physicians argued the trial judge made multiple procedural and instructional errors, including permitting further discovery at trial, limiting expert evidence, improperly charging the jury on standard of care and causation, misphrasing the causation question, misdirecting the jury on agreement requirements, and refusing to poll the jury.

The Court of Appeal held that most alleged errors were unfounded and that the causation wording error in the verdict questions caused no substantial wrong because the jury was repeatedly instructed on the correct “but for” test.

The appeal was dismissed.