Justin Paul Baichoo

The moving party plaintiffs brought a motion to extend the time for service of a new expert appraisal report and for leave to amend their statement of claim to increase the damages claimed, arising from a failed real estate transaction.

The original appraisal experts had retired and were unable to testify, necessitating a replacement report.

The court found a reasonable explanation for the late service, no uncompensatable prejudice to the responding defendants, and no undue trial delay given the trial was set 11 months away.

Leave to serve the replacement appraisal was granted, as was the amendment to increase the quantum of damages claimed from $75,000 to $125,000, with costs thrown away to be quantified by the trial judge.

This decision addresses the costs arising from the Defendants' successful motion to set aside a noting in default and default judgment obtained by the Plaintiffs.

The court found the Plaintiffs acted unreasonably by obtaining default judgment despite knowing the Defendants intended to defend, and by resisting reasonable offers to set it aside.

The Plaintiffs further complicated the matter with voluminous materials and a dubious cross-motion.

The Defendants were awarded partial indemnity costs of $72,022.27, fixed and payable forthwith.

The plaintiffs brought a motion for leave to amend their statement of claim to reduce damages, remove causes of action, and add particulars, as well as to discontinue the action against one defendant.

The defendants did not oppose the amendments or discontinuance but sought costs thrown away and the continuation of a crossclaim.

The court granted the plaintiffs leave to amend and discontinue, ordered the continuation of the crossclaim, and awarded the defendants $2,200 in costs thrown away plus $5,000 for the costs of the motion.

The Plaintiffs brought a summary judgment motion seeking damages and costs arising from the Defendants' failure to close an agreement of purchase and sale for a property.

The Defendants argued the Plaintiffs breached the contract and sought their own damages, but had not filed a counterclaim.

The court found the Defendants were in breach of contract due to their unwillingness to close the transaction, primarily due to an outstanding writ of execution.

The Plaintiffs were awarded specific damages for the deposit, property taxes, and moving expenses to rental accommodation.

The court also awarded litigation costs, but significantly reduced the amount claimed by the Plaintiffs, emphasizing proportionality and the Plaintiffs' failure to respond to a settlement offer.

A portion of damages for additional living expenses was deferred for further assessment.

The court issued an endorsement following the dismissal of the plaintiff's summary judgment motion on a mortgage guarantee.

This endorsement addresses the costs of that motion and the plaintiff's subsequent request for a mini-trial or expedited trial.

The court reserved the costs of the summary judgment motion to the trial judge, finding it more just given that the claims and defences remained live and the work done would reduce trial costs.

The plaintiff's request for a mini-trial was denied, as it would not allow for proper development of defences due to prior evidentiary deficiencies and lack of discovery.

The court reiterated the need for a case conference to address the action's progress, particularly in light of a key individual's failing health, and to consider an expedited trial.

The plaintiff, 2383431 Ontario Inc., sought summary judgment against individual defendants who guaranteed a mortgage for Rose of Sharon (Ontario) Retirement Community.

The defendants argued the guarantee was limited to interest only and raised equitable defences related to construction defects and the relationship between the original mortgagee (IWOK) and the builder (Unimac).

The court dismissed the motion for summary judgment, finding that the complex factual matrix, including the disputed scope of the guarantee and the relationships between the parties, presented genuine issues requiring a trial.

The judge emphasized that the record did not allow for confident findings of fact or a proportionate resolution of the dispute.

This motion concerned undertakings and refusals in cross-examinations related to a charging order sought by BPR Litigation Lawyers against bond funds held for Unimac Group Ltd. Trisura Guarantee Insurance Company, an interested third party, challenged the quantum of the charging order and the extent of solicitor-client privilege claimed by Unimac/BPR.

The court determined that Trisura was entitled to question the quantum of the charging order and that privilege did not extend to descriptions of work performed in work-in-progress reports, but did protect confidential solicitor-client communications and business judgment decisions.

The moving parties, Antonio Ferrara (in trust) and Astoria Homes Inc., sought to strike a third-party claim brought by the Marcheses against Antonio Ferrara in his personal capacity.

The third-party claim was issued without consent or leave of the court, contrary to Rule 29.02.

The court found that while an irregularity occurred, leave would have been granted had it been sought, as no prejudice to the plaintiffs was demonstrated.

Furthermore, the irregularity was cured by the moving parties taking fresh steps in the litigation after becoming aware of the third-party claim.

The application to strike was dismissed.

Trisura Guarantee Insurance Company brought a motion for a declaration that its perfected security interest under the Personal Property Security Act (PPSA) had priority over any solicitor's charging order that might be obtained by BPR Litigation Lawyers, the former lawyers for Unimac Group Ltd. The court dismissed the motion, finding that the PPSA does not apply to solicitors' charging orders.

Furthermore, the court held that the common law 'first in time' rule does not apply to solicitors' charging orders due to their equitable nature and purpose.

Trisura's indemnity agreement with Unimac did not preclude BPR from seeking a charging order against funds recovered or preserved through their instrumentality.

Following a successful motion for summary judgment in a wrongful dismissal action where the plaintiff was awarded $20,904, the parties made written submissions on costs.

The plaintiff sought substantial indemnity costs of $67,959 or partial indemnity costs of $57,082.

The court rejected the claim for substantial indemnity costs, finding the defendant's conduct did not warrant them.

The court also declined the defendant's request to deny costs under Rules 57.05 or 76.13, noting that proceeding by summary judgment achieved the same efficiencies as the Simplified Procedure.

Considering proportionality and the plaintiff's limited success, the court awarded the plaintiff total costs of $23,000 on a partial indemnity basis.

The appellants appealed a Master's order dismissing their motion to set aside the Registrar's dismissal of their action for delay.

The action, arising from a construction contract dispute, was dismissed after the appellants failed to set it down for trial by the court-ordered deadline.

The Divisional Court found no error in the Master's application of the Reid test, noting the appellants failed to provide a satisfactory explanation for the delay and bore the primary responsibility to move the litigation forward.

The appeal on the merits was dismissed, but leave to appeal costs was granted and the costs awarded below were reduced to ensure proportionality.

The plaintiff, a 14-year employee, was terminated for failing to provide a doctor's note in a timely manner while on sick leave.

She brought a motion for summary judgment for wrongful dismissal.

The court found that while the plaintiff breached a reasonable company policy, summary dismissal was a disproportionate response.

The court determined the appropriate notice period was 10 months, but reduced it to 6 months because the plaintiff failed to mitigate her damages by not seeking alternative employment for 15 months.

The court dismissed the claim for punitive and moral damages, finding the employer did not act maliciously.

The plaintiff was awarded $20,904.

This decision addresses two motions brought by Trisura Guarantee Insurance Company in the context of construction lien proceedings.

The first motion sought to set aside a charging order obtained by BPR Litigation Lawyers against a construction lien bond without notice to Trisura.

The second motion sought leave to pursue exoneration and payment out of the bond.

The court found that Trisura did not require leave to challenge the charging order, had standing due to its direct proprietary and economic interests under an Indemnity Agreement, and consequently, the charging order was set aside for lack of notice.

However, the court denied Trisura leave to bring its motion for exoneration within the construction lien actions, determining that such a claim, based on a separate Indemnity Agreement, did not expedite the resolution of the lien issues and was already the subject of a separate action in Toronto, posing a risk of inconsistent findings.

Metrolinx brought a motion to quash Unimac's application for judicial review of a security for costs order made by a Master in a construction lien action.

Unimac alleged procedural unfairness based on communications between the Master and Metrolinx's counsel, and errors in the Master's treatment of evidence.

The Divisional Court found the communication complaints to be utterly devoid of merit and the evidentiary complaints to be matters for an appeal, not judicial review.

Since the Construction Lien Act prohibits appeals of interlocutory orders, the court held that the judicial review application was an abuse of process attempting to circumvent this prohibition.

The motion to quash was granted.

The defendant brought a motion to set aside a default judgment and to declare the plaintiff's construction lien expired.

The court refused to set aside the default judgment, finding that although service of the statement of claim was technically defective, it came to the defendant's attention in a timely manner.

Furthermore, the defendant failed to provide a plausible excuse for the default or credible evidence of an arguable defence on the merits.

However, the court granted the motion to declare the construction lien expired, as the plaintiff had failed to set the action down for trial within the two-year period required by section 37 of the Construction Lien Act, and a registrar's default judgment does not satisfy this requirement.

The appellant employer appealed a costs award of $6,000 granted to the respondent employee following a summary judgment motion in a wrongful dismissal action.

The employer argued the motions judge's reasons were insufficient and inconsistent with her findings, given the employee had rejected pre-litigation offers that exceeded the final judgment.

The Divisional Court dismissed the appeal, finding the motions judge properly considered that the employer's offers did not trigger Rule 49 costs consequences and that the employee's unreasonable rejection of pre-litigation offers justified the significantly reduced costs award.

The costs decision disclosed no error in principle and was entitled to deference.

Following a summary judgment awarding the plaintiff 16 months' pay in lieu of notice for wrongful dismissal, the parties disputed the calculation of damages.

The court ruled that the plaintiff was entitled to a car allowance and that his commissions should be calculated separately based on actual earnings pro-rated over the notice period.

However, the court agreed with the defendant that the award is subject to statutory deductions, including the repayment of Employment Insurance benefits to the Receiver General.

The court also held that pre-judgment interest must be calculated on the shortfall of payments during the salary continuance period, rather than as a lump sum, following the Court of Appeal's decision in Lowndes.

The plaintiff, Unimac, brought a motion to vary previous orders requiring it to post security for costs in favour of the defendant, Metrolinx.

Unimac argued the orders were based on false and misleading evidence regarding the location of a related action, and that new evidence undermined the credibility of a key affidavit.

The Master dismissed the motion, finding that the location of the related action was not material to the original decision and that Unimac could have discovered the true location with due diligence.

The Master also found that the new evidence would not have had an important influence on the original decision.

The employer appealed a Small Claims Court judgment awarding the employee damages for constructive dismissal, mental distress caused by workplace harassment, and costs.

The Divisional Court allowed the appeal in part, reducing the constructive dismissal damages from $1,250 to $625 because the employee had worked and been paid for the first week of the two-week notice period.

The court dismissed the appeal regarding mental distress damages, finding the pleadings were sufficient and the evidence supported the award.

The trial judge's costs award was also upheld.

The defendant brought a motion for security for costs against a corporate plaintiff that admitted it was no longer operating and likely lacked assets in Ontario.

The plaintiff argued that security should not be ordered because the defendant’s counterclaim exceeded the value of the claim and arose from the same facts.

The court held that the existence or size of a counterclaim is not determinative and does not bar security for costs where the statutory grounds under Rule 56.01 are met.

The plaintiff’s principal offered a personal undertaking to cover costs, but the court found insufficient evidence of assets to make the undertaking adequate security.

The court ordered the plaintiff to post $58,000 as security for costs and awarded motion costs to the defendant.