Karen Perron

Following the dismissal of the plaintiff's summary judgment motion regarding a commercial lease and parking dispute, the successful defendant sought costs of $586,141.79 on a substantial indemnity scale.

The court declined to award substantial indemnity costs, finding the plaintiff's conduct was not reprehensible and noting that Rule 49.10 limits a defendant to partial indemnity costs even when the plaintiff's claim is completely dismissed.

The court awarded the defendant costs of $398,000 on a partial indemnity basis, finding the time spent and hourly rates reasonable given the complexity and the $4.6 million claim.

The Professional Centre brought a motion for summary judgment against The Ottawa Hospital concerning the interpretation of parking provisions in a 49-year lease and related Memorandum of Agreement.

The Professional Centre alleged breaches regarding the availability of 250 parking spaces, remittance of revenue from 40 parking spaces, and unauthorized use of encroaching parking spaces and an access road.

The Hospital denied any breach, asserting it exercised contractual discretion in good faith.

The court dismissed all of the Professional Centre's claims, finding no breach of the lease, that the Hospital had an implied easement over the access road, and that the Professional Centre failed to prove damages, including a high vacancy rate, were caused by the alleged parking issues.

The plaintiff, Richcraft Homes Ltd., initiated an action against several defendants, including Urbandale Corporation, Urbandale Construction Limited, and Lawrence Weinstein, seeking declaratory relief for oppressive conduct, breach of contract, and punitive damages related to land development projects.

The defendants brought motions under Rule 21 to strike Richcraft's claims, arguing they failed to plead material facts supporting a reasonable prospect of success.

The court granted the motions, finding that Richcraft did not demonstrate compensable injury or a likelihood of threatened oppressive conduct, nor an independent actionable wrong for punitive damages.

Leave to amend was denied due to the absence of proposed amendments or supporting evidence.

The plaintiff, Car-Wal Garage Doors Inc., brought a motion for an interlocutory injunction to restrain the defendant, On Track Door Systems Canada Inc., from using the trade name "On Track" and the domain name "ontrackdoorsystems.ca".

The plaintiff alleged the defendant's actions constituted passing off, causing confusion and damaging goodwill, particularly after the expiry of a previous licence agreement.

The defendant cross-moved to strike the claim, arguing res judicata or abuse of process.

The court applied the three-part test for interlocutory injunctions, finding a serious issue to be tried regarding passing off, a risk of irreparable harm to the plaintiff's goodwill and market share, and that the balance of convenience favoured the plaintiff.

A limited injunction was granted, restraining the defendant from using "On Track" in its name except for "On Track Door Systems Grey Bruce Inc." and from using the specified domain name.

The appellants, the Better Business Bureau of Ottawa-Hull Incorporated and Better Business Bureau of Ottawa-Hull Inc., appealed a Divisional Court decision that had allowed an appeal by Walsh Energy Inc. in a defamation action.

The trial judge had dismissed the defamation claim, finding that the BBB's D- rating assigned to Walsh was not defamatory and was protected by the defence of fair comment.

The Divisional Court reversed, finding the D- grade was defamatory and ordering a new trial on the issues of fair comment, malice, and damages.

The Court of Appeal allowed the BBB's appeal, finding that the Divisional Court erred in ordering a new trial on fair comment, as the record was sufficient to establish the defence.

The court also reduced the trial judge's costs award from $348,135.96 to $175,000 as being excessive and contrary to the fundamental objective of access to justice.

The court-appointed liquidator of a partnership sought approval of its fees and disbursements, including legal fees, and directions for the distribution of the net proceeds.

The liquidation involved significant complications, including the need to recognize a Quebec judgment in Ontario and deal with multiple creditors.

The court approved the liquidator's fees, finding them fair and reasonable despite exceeding a 2:1 ratio of net receivables, due to the disproportionate difficulties encountered.

The court also interpreted the underlying Quebec judgment, concluding that a specific sum awarded to one partner was a damages award, not a priority claim on the liquidated assets, and directed the remaining proceeds to be distributed pro rata among the other partner's creditors.

This decision addresses costs following two motions where the Bank of Montreal and Surgeson Carson Associates, Inc. (the Receiver) successfully obtained summary judgment dismissing claims by Jean-Luc Cardinal, Linda Cardinal, The Estate of Raymond Cardinal, and Ferme Lanidrac (the Borrowers), and successfully defended the Borrowers' motion to set aside a consent judgment.

The Bank and Receiver sought substantial indemnity costs, citing the complexity, importance, and unfounded allegations of fraud and abuse of process made by the Borrowers.

The Borrowers argued for partial indemnity costs, claiming shared success on a legal test and that the defendants' evidence was excessive.

The court awarded substantial indemnity costs to the Bank ($110,000) and the Receiver ($50,000), finding the Borrowers' conduct in re-litigating settled claims and making serious, unsubstantiated allegations of dishonesty warranted higher costs, despite acknowledging minor success on a legal argument.

The parties sought directions concerning the form of the order following the disposition of an appeal in a defamation action.

The parties disagreed on the scope of issues to be sent back for re-trial.

The Divisional Court agreed with the appellant that the new trial judge should not be bound by the previous trial judge's findings on fair comment, malice, and damages, as the previous judge had been dismissive of the claims.

The court directed that the appellant's draft order be issued, remitting these issues for a full retrial without factual constraints.

The plaintiffs sought an interlocutory injunction to prevent the defendants from breaching non-competition, non-solicitation, and trade name use covenants following the sale of a business.

The court applied the modified injunction test for restrictive covenants, finding a strong prima facie case of breach by the defendants, directly and indirectly through an employee and his company.

The court drew an adverse inference from the defendants' failure to provide an affidavit from the key employee.

Irreparable harm was presumed and also found on evidence of lost sales and market confusion.

The balance of convenience favored the plaintiffs, as the defendants' alleged breaches were deliberate.

The injunction was granted, along with an order for production of the defendants' general ledger and customer lists.

The borrowers brought a motion to set aside a consent order terminating a receivership, alleging that the Bank and the court-appointed Receiver made misrepresentations during settlement negotiations.

The Bank and the Receiver brought a motion for summary judgment to dismiss the borrowers' subsequent action for damages.

The court found no evidence of misrepresentation, noting that the borrowers had independent legal advice, received full disclosure, and signed multiple full and final releases.

The court dismissed the motion to set aside the consent order, denied retroactive leave to sue the Receiver, and granted summary judgment dismissing the borrowers' action on the basis of res judicata.

The appellants, heating and air conditioning businesses, sued the Better Business Bureau (BBB) for defamation after the BBB assigned them a 'D-' rating on its website.

The trial judge dismissed the action, finding the rating was not defamatory and was protected by fair comment and qualified privilege.

On appeal, the Divisional Court held that the trial judge erred in law by failing to determine the plain and ordinary meaning of the rating, which was clearly defamatory.

The court also found that the BBB did not enjoy qualified privilege for general ratings published to the public.

The appeal was allowed, the trial judgment set aside, and the matter remitted for a new trial on the issues of fair comment, malice, and damages.

The appellant commenced an action in 1989 alleging the respondents dumped coal tar that migrated onto its property between 1924 and 1958.

In 2014, the motion judge dismissed the 25-year-old action for delay under Rule 24.01, finding the delay after 2003 was inordinate and inexcusable, and that the appellant failed to rebut the strong presumption of prejudice given the unavailability of key witnesses and documents.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's application of the test for dismissal for delay or his costs awards.

The plaintiff commenced an action in 1989 alleging the defendants dumped coal tar waste that migrated onto its property.

After 25 years of litigation, the defendants moved to dismiss the action for delay under Rule 24 of the Rules of Civil Procedure.

The court found that while the initial 14 years of delay were excusable due to collaborative settlement efforts, the plaintiff's failure to advance the litigation after 2003 was inordinate and inexcusable.

The court held that the plaintiff failed to rebut the strong presumption of prejudice, as it had not preserved the evidence of key witnesses who had since passed away.

The motion was granted and the action was dismissed.

The defendants brought a motion for security for costs of both the trial ($348,135.96) and the pending appeal ($68,417.45) under Rule 56.01(1)(d) of the Rules of Civil Procedure.

The plaintiffs' defamation action had been dismissed at trial.

The court found that the corporate plaintiffs were not impecunious and had sufficient assets to satisfy a cost order.

The court also noted that ordering security for the full amount would unjustly prevent the plaintiffs from pursuing a meritorious appeal.

The court dismissed the motion for security for trial costs but ordered the plaintiffs to post $40,000 as security for the costs of the appeal.

Corporate plaintiffs operating heating and air conditioning businesses alleged defamation arising from online reliability ratings published by a consumer organization.

The plaintiffs argued that letter grades assigned under a revised rating system and references to unresolved complaints damaged their business reputations.

The court held that the ratings and accompanying explanations, when read in context of the website’s disclaimers and methodology, would not lower the plaintiffs in the estimation of a reasonable member of the public and therefore were not defamatory.

In any event, the publications would have been protected by qualified privilege and the defence of fair comment.

No malice was established and the action was dismissed.

The appellants were sued by a credit union for monies owed under a credit facility after an employee stole $30 million.

The appellants counterclaimed against the regulators, FSCO and DICO, seeking contribution and indemnity on the basis that they negligently failed to oversee the credit union.

The Court of Appeal upheld the motion judge's decision to strike the counterclaim, finding that FSCO is not an entity capable of being sued, DICO is protected by statutory immunity, and the appellants had no tenable claim for contribution and indemnity under the Negligence Act because they were not tortfeasors.