Katrina Marciniak

This is an addendum to the Court of Appeal's decision setting aside a summary judgment granted to the respondents.

The plaintiff sought clarification regarding the treatment of costs awarded in the summary judgment motion.

The Court of Appeal ordered that the costs of the summary judgment motion be payable in the cause of the action, as the action between the plaintiff and respondents was ordered to proceed.

The defendants brought a motion seeking payment of costs from a successful summary judgment motion, an order to strike the plaintiff's defence to their counterclaim if costs were not paid, and a stay of the plaintiff's pending summary judgment motion.

The Master dismissed the defendants' motion, finding no jurisdiction to stay a judge's order and determining that the defendants' arguments regarding the enforceability of costs were not without merit, but ultimately unsuccessful.

As the successful party on the motion, the plaintiff was awarded partial indemnity costs.

The plaintiff, an employee of Darwin Productions Inc., claimed unpaid salary and a percentage ownership interest based on an alleged employment agreement.

The respondents denied the terms and moved for summary judgment on the basis that the claim was statute-barred.

The motion judge granted the summary judgment, finding no evidence of a demand obligation and concluding the cause of action arose by December 2009.

The intervenor law firm appealed, arguing the motion judge erred by failing to address anticipatory breach of contract and by finding sufficient evidence to decide factual issues on summary judgment.

The Court of Appeal allowed the appeal, finding the motion judge erred in law by not addressing the anticipatory breach argument and that there was a genuine issue requiring trial regarding the terms of the employment agreement.

The appellant's counsel was unable to obtain instructions from her client and requested to be removed from the record.

The appellant was fully aware of the scheduled hearing but chose to discontinue communication with counsel.

The Court of Appeal dismissed the appeal as abandoned and awarded costs to the respondent on a substantial indemnity basis.

The defendants moved for an order compelling the plaintiff to pay a $40,000 costs award, which was granted following a successful summary judgment motion, and to strike the plaintiff's defence to counterclaim if payment was not made.

They also sought to stay the plaintiff's pending summary judgment motion against their counterclaim.

The court lacked jurisdiction to stay the plaintiff's summary judgment motion.

The primary issue was whether the costs award was automatically stayed under Rule 63.01(1) of the Rules of Civil Procedure, given a pending appeal of the underlying summary judgment on the merits.

The court found the costs award inextricably connected to the judgment under appeal and thus captured by the automatic stay.

Alternatively, the court found the costs award stayed by the plaintiff's motion for leave to appeal costs in the Court of Appeal.

The defendants' motion was dismissed.

Following the dismissal of the plaintiff's action on a summary judgment motion, the successful defendants sought costs of the action on a substantial indemnity scale, citing the plaintiff's conduct and unaccepted settlement offers.

The court found the plaintiff's conduct was not reprehensible and the settlement offers did not warrant an elevated scale.

Applying the factors in Rule 57.01 and the principle that costs must be fair and reasonable, the court awarded the defendants costs on a partial indemnity scale fixed at $40,000 inclusive of fees, disbursements, and HST.

Datawind Inc. appealed an order of the Superior Court of Justice registering a costs order from the United Kingdom High Court of Justice under the Convention for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters.

Datawind argued that the foreign court lacked jurisdiction over it as a third party to the original proceeding, that the costs order was not for a definite sum, and that it was denied natural justice.

The Court of Appeal dismissed the appeal, finding that the foreign court had jurisdiction, that the interim payment on account of costs constituted a registrable judgment for a definite sum, and that no denial of natural justice occurred.

The defendants moved for summary judgment to dismiss the plaintiff's action for unpaid wages, equity interest, and intellectual property ownership, arguing the claims were statute-barred by the Limitations Act, 2002.

The court found that the plaintiff had discovered the material facts giving rise to his claims by December 2009 at the latest, well outside the two-year limitation period for the action commenced in January 2012.

The court rejected arguments that the unpaid wages constituted a "demand obligation" and that declaratory relief without consequential relief was exempt from limitation periods, as the plaintiff sought mandatory relief.

Consequently, the defendants' motion for summary judgment was granted, and the plaintiff's action was dismissed.

The defendant sought costs after successfully opposing the plaintiff's motion to quash an appeal.

The plaintiff argued that no costs should be awarded because the motion raised a novel jurisdictional question and was brought in good faith.

The court rejected the plaintiff's arguments, finding that the motion was not sufficiently novel to justify departing from the usual rule that costs follow the event.

The court awarded costs to the defendant on a partial indemnity scale in the amount of $8,166.51.

The plaintiff sought substantial indemnity costs of $36,733.95 plus HST and disbursements following a successful motion, relying on offers to settle.

The responding defendant argued the costs were excessive and disproportionate, suggesting $8,000.

The court agreed the motion was complex and important, but found the plaintiff's claimed hours involved extensive duplication.

Emphasizing the overriding principles of proportionality and reasonableness, the court fixed costs at $15,000 plus HST and $2,000 for disbursements.

The plaintiff, a minority shareholder of a corporation, brought a motion to amend his statement of claim and for leave to commence a derivative action on behalf of the corporation against a real estate brokerage for breach of a joint venture agreement.

The brokerage opposed the motion, arguing the amendments constituted a new cause of action outside the limitation period and that the plaintiff did not meet the requirements for a derivative action.

The court granted the motion, finding that the brokerage had notice of the factual matrix underlying the claims within the limitation period, and that the plaintiff satisfied all statutory requirements to bring a derivative action in good faith.

The respondent brought a motion to set aside the registration of two support orders issued by a Polish court (dated November 27, 2012 and July 23, 2013) on the grounds that he did not receive proper notice or a reasonable opportunity to be heard in the Polish proceedings.

The applicant sought to maintain the registration.

The court found that the respondent did not receive notice of the initial Polish proceedings and was not given a reasonable opportunity to be heard, despite providing a financial statement at a Polish consulate interview.

The court set aside the registration of both orders.

The applicant, an impoverished former student of the Fort William Sanatorium School, sought an advance costs award to fund a Request for Directions to have the school recognized as an Indian Residential School under the Indian Residential Schools Settlement Agreement.

After numerous lawyers declined the case due to financial risk, the applicant brought this motion.

The court granted the motion, finding that the applicant met the strict criteria for an advance costs award: her claim had prima facie merit, she was genuinely impecunious, and the case raised issues of public importance regarding access to justice for residential school survivors.

Plaintiffs involved in a motor vehicle accident in New York and a second accident in Ontario commenced a single action in Ontario against multiple defendants, including the New York drivers, an Ontario driver from the second accident, and their Ontario insurer under an underinsured motorist provision.

The New York defendants moved to stay the action for lack of jurisdiction, relying on the presumptive connecting factors identified in Club Resorts Ltd. v. Van Breda.

The court held that where multiple defendants are sued and at least one is domiciled or resident in Ontario, a real and substantial connection exists allowing Ontario courts to assume jurisdiction over the entire dispute.

Splitting the litigation into separate proceedings across jurisdictions would undermine fairness and efficiency.

The motion to stay for lack of jurisdiction was dismissed.