Justin Safayeni

This is a costs decision following the successful application by the applicants to set aside an arbitral award and associated costs award on grounds of procedural unfairness.

The applicants sought costs on a partial indemnity basis in the amount of $49,636.38 against Dr. Frank Fowlie.

The court awarded the full amount requested, finding the applicants were entirely successful and the quantum was fair and reasonable.

The court rejected Dr. Fowlie's argument that he should not bear costs as he was not responsible for the arbitrator's conduct, noting that he actively opposed the application and did not challenge the procedural ruling during the arbitration.

The court also rejected any suggestion that Wrestling Canada Lutte should share in the costs award.

The court considered whether, at a case conference, an associate judge has jurisdiction to determine if the plaintiff may examine a third party in the main action under the Rules of Civil Procedure.

The plaintiff sought to examine Andrew Clark, a third party, but the associate judge found that such a determination would constitute interlocutory relief, which is beyond the jurisdiction of an associate judge at a case conference.

The request was denied, and the plaintiff was directed to bring a motion if it wished to pursue the matter.

The applicants sought to set aside an arbitration award under section 46 of the Arbitration Act, 1991, arguing that the arbitrator’s mid-hearing switch from an oral to a written process, and refusal to consider their closing submissions, constituted unequal and unfair treatment.

The Court found that the applicants were denied their statutory rights to an oral hearing and to equal treatment, and set aside the award, remitting the matter for a new hearing before a different arbitration panel.

This costs endorsement follows the granting of anti-SLAPP motions by the three defendants.

The court addresses the scale and quantum of costs, the issue of duplication between legal teams, and the entitlement of a self-represented litigant to costs.

The court awards full indemnity costs to the defendants, finding the requests fair and reasonable, and declines to award compensation to the self-represented defendant for his own time.

This decision sanctions the CCAA Plans of Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, JTI-Macdonald Corp., and Rothmans, Benson & Hedges Inc., effecting a global settlement of all tobacco-related claims in Canada.

The court reviews the structure, allocation, and fairness of the plans, including the creation of a $1 billion Cy-près Foundation, and addresses objections from social stakeholders.

The court finds the plans fair, reasonable, and in the public interest, and grants the requested relief, including third-party releases and the appointment of plan administrators.

The appellant, a non-profit organization, sought public interest standing to bring nine applications for judicial review challenging decisions made by the Ontario Integrity Commissioner under the Lobbyists Registration Act.

The Divisional Court quashed the applications, finding the appellant lacked standing.

On appeal, the Court of Appeal upheld the decision, agreeing that the applications did not raise a serious justiciable issue as they merely challenged individual exercises of discretion rather than statutory interpretation.

The Court also agreed that the applications were not a reasonable and effective means to bring the issues before the courts, as they would conflict with the statutory scheme and its strict confidentiality provisions.

This is a costs endorsement following an appeal.

The parties settled the costs of the appeal, agreeing that the respondent would pay the appellants an all-inclusive amount of $75,000.

The Ontario Court of Appeal allowed an appeal by seven youth challenging the constitutionality of Ontario's greenhouse gas emission reduction target and plan.

The application judge had dismissed their claim, characterizing it as seeking positive rights.

The Court of Appeal found this was an error, clarifying that the case concerned whether Ontario's voluntarily assumed statutory obligation to combat climate change was Charter compliant under ss. 7 (life, liberty, security of the person) and 15 (equality).

The matter was remitted for a new hearing to determine if the Target and Plan violated the Charter.

The defendants brought motions under s. 137.1 of the Courts of Justice Act to dismiss the plaintiff's defamation action as a strategic lawsuit against public participation (SLAPP).

The plaintiff, a former Complaints and Appeals Officer for a national sports organization, sued the defendants over emails they sent criticizing his handling of complaints and his suitability for the role.

The court found that the defendants' expressions related to a matter of public interest regarding athlete safety.

While the defamation claim had substantial merit, the plaintiff failed to show that the defendants lacked valid defences, such as justification and qualified privilege.

Furthermore, the plaintiff failed to provide evidence of serious harm caused by the expressions that would outweigh the public interest in protecting them.

The motions were granted and the action was dismissed.

The appellant sought to withhold 23 mandate letters delivered by the Premier of Ontario to each minister upon forming government in 2018, claiming exemption under s. 12(1) of the Freedom of Information and Protection of Privacy Act as Cabinet records that would reveal the substance of Cabinet deliberations.

The Information and Privacy Commissioner ordered disclosure, finding the letters were non-exempt outcomes of the Premier's deliberative process rather than records revealing the substance of Cabinet deliberations.

The Supreme Court allowed the appeal, holding that the IPC failed to give meaningful weight to the constitutional conventions of Cabinet confidentiality, the fluid and dynamic nature of the Cabinet decision-making process, and the central role of the Premier within that process.

The Court found the mandate letters were revealing of the substance of Cabinet deliberations, both on their face and when compared against subsequent government action, and that the IPC's narrow interpretation of s. 12(1) was unreasonable.

The applicants, who were unsuccessful in their constitutional challenge regarding Ontario's response to climate change, and the respondent, who successfully defended the application, both sought costs.

The respondent sought $45,000 on a partial indemnity basis, while the applicants sought $96,999.79 or, alternatively, no costs.

The court applied the factors for public interest litigation and declined to award costs to the successful respondent, noting the applicants had no pecuniary interest, the issues were of existential public importance, and the respondent had superior capacity to bear costs.

The court also declined to award costs to the unsuccessful applicants, finding this was not one of the rare cases justifying such an award.

The court ordered that each party bear their own costs.

The applicants, seven young Ontarians, brought an application challenging Ontario's greenhouse gas reduction target (the "Target") set under the Cap and Trade Cancellation Act, 2018.

They argued that the Target, which aims to reduce emissions by 30% below 2005 levels by 2030, is unconstitutional and violates their rights under sections 7 and 15 of the Charter.

The court found that the issues were justiciable, as they involved a challenge to specific state action and legislation.

However, the court dismissed the application, concluding that while climate change poses a severe threat and disproportionately impacts youth, the Target itself does not violate the Charter.

The court held that section 7 does not impose positive obligations on the state to enact more stringent environmental policies, and the Target is not arbitrary or grossly disproportionate.

Furthermore, the court found no section 15 violation, as the disproportionate impacts are caused by climate change itself, not the impugned legislation, and the Charter does not impose a positive obligation to remedy social inequalities.

The appellant, Hummel Properties Inc., appealed a lower court decision that dismissed its application to quash interim control by-laws enacted by the Town of Niagara-on-the-Lake.

The by-laws prohibited the subdivision of land, including condominium creation, and were challenged on grounds of illegality (not relating to "land use" under the Planning Act, infringing s. 38(7) by applying a second interim control by-law, and illegal process) and bad faith.

The Court of Appeal found that the by-laws were illegal because they purported to control land division, not land use, and violated s. 38(7) by applying a second interim control by-law to the same land.

The court also found errors in the application judge's assessment of the process and bad faith.

The appeal was allowed, the by-laws quashed, and the matter remitted to the Superior Court for a trial on damages for negligent misrepresentation and misfeasance in public office.

This is a costs endorsement from the Court of Appeal for Ontario.

The appellants were ordered to pay the respondents $25,000, all-inclusive, for the costs of the appeal.

The decision follows an appeal from an order of the Superior Court of Justice.

The appellants, a Township and its officials, appealed the dismissal of their anti-SLAPP motion seeking to dismiss a defamation and misfeasance in public office action brought by the respondents, owners of a community newspaper.

The Court of Appeal dismissed the appeal, finding no reviewable error in the motion judge's application of the anti-SLAPP test under s. 137.1 of the Courts of Justice Act, including the weighing of public interest in expression versus harm to reputation, and the assessment of available defences.

The court affirmed that the motion judge correctly applied the legal tests and that anti-SLAPP motions are not the forum for definitive determinations of complex defences.

The court issued a costs endorsement following the dismissal of the defendants' anti-SLAPP motion under s. 137.1 of the Courts of Justice Act.

Both parties sought costs.

The defendants claimed over $250,000 for eight different court steps, arguing the self-represented plaintiffs caused unnecessary legal expenses.

The plaintiffs sought $30,000 for successfully defending the motion.

The court awarded the defendants $34,000 for various interlocutory steps, finding the plaintiffs' litigation strategy was disproportionate and caused unnecessary expenses.

The court declined to award costs to the plaintiffs for the s. 137.1 motion, applying the statutory presumption against costs for successful responding parties due to their conduct.

Following the dismissal of the moving party's motion to strike, the successful responding parties sought partial indemnity costs of $36,269.19.

The moving party argued for a maximum of $15,000.

The court considered the factors under Rule 57.01, noting the public interest nature of the litigation, the complexity of the constitutional issues, and the reasonable delegation of work among counsel.

The court found the requested amount fair and reasonable and awarded costs of $36,269.19 to the responding parties.

The defendants appealed a Master's decision declining to dismiss the plaintiff's action for delay under Rule 48.14 and instead imposing a timetable.

The underlying action involved a claim for indemnification from escrow funds following a share purchase agreement.

The Superior Court of Justice dismissed the appeal, finding that the Master applied the correct two-part test from Kara v. Arnold, properly considered the contextual factors including the defendants' own delay in filing a statement of defence, and made no palpable and overriding error in concluding the plaintiff had an adequate explanation for delay and the defendants suffered no non-compensable prejudice.

The applicants, seven youths residing in Ontario, brought an application challenging Ontario's cancellation of the Climate Change Act and its newly-enacted greenhouse gas reduction target under the Cap and Trade Cancellation Act, 2018.

They alleged that the target violates their rights under sections 7 and 15 of the Charter.

Ontario brought a motion to strike the application under Rule 21, arguing it disclosed no reasonable cause of action, was not justiciable, was based on unprovable speculations, depended on positive obligations, and that the applicants lacked standing for future generations.

The court dismissed the motion to strike, finding that the target and plan are reviewable by the courts, the claims are capable of scientific proof, the matter is justiciable as it challenges specific government conduct, the issue of positive obligations should be decided on a full evidentiary record, and the applicants meet the test for public interest standing at this preliminary stage.

The plaintiff was successful on a status hearing motion to prevent the dismissal of its action for delay.

The parties could not agree on costs.

The plaintiff sought $35,000, while the unsuccessful defendants sought $30,225.24, arguing the motion was only necessary due to the plaintiff's inaction.

The court awarded costs of $20,000 to the defendants on a partial indemnity basis, finding it was reasonable for them to compel the plaintiff to show cause and noting the plaintiff's primary explanation for the delay was inaccurate.