Keith A. MacLaren

This costs endorsement follows a trial between family members over a life interest in a home.

The court found that Herminia Bada retained a life interest in the property, despite having signed an Acknowledgment and Direction removing it from title, as she did not understand the implications.

The court considered the conduct of the parties, including Herminia’s dishonesty about signing the document, and fixed costs at $45,000 in fees plus HST and $7,000 in disbursements, rather than the higher amount sought.

The court emphasized the importance of truthfulness and the principles governing costs awards.

This costs endorsement follows a trial between family members over a life interest in a home.

The court found that Herminia Bada retained a life interest in the property, despite having signed an Acknowledgment and Direction removing it from title, as she did not understand the implications.

The court considered the conduct of the parties, including Herminia’s dishonesty about signing the document, and fixed costs at $45,000 in fees plus HST and $7,000 in disbursements, rather than the higher amount sought.

The court emphasized the importance of truthfulness and the principles governing costs awards.

The mother and daughter entered into an agreement where the mother transferred her property to the daughter but retained a life interest.

The daughter later required financing to renovate the property, and the bank required the life interest to be discharged.

The mother signed an acknowledgment and direction discharging her life interest.

Years later, the relationship broke down, and the daughter attempted to evict the mother and sell the property.

The court found that the discharge of the life interest was invalid due to undue influence, as the mother did not fully understand the consequences and did not receive independent legal advice.

The mother's life interest was declared valid, and the daughter was ordered to provide an accounting for funds managed while acting in a fiduciary capacity.

This costs endorsement followed a summary judgment motion where portable school classrooms were found to be "improvements" under the Construction Act.

OnPoint Group Ltd., the successful party on the main issue, sought full indemnity costs, while intervening parties also sought partial indemnity costs.

The court awarded OnPoint Group Ltd. $35,000 and the intervenors $9,500, both on a partial indemnity basis.

The decision considered factors such as mixed success, complexity, and the novelty of the issue, and addressed the impact of bilingual proceedings on costs.

In this consolidated action, George W. Drummond Limited sought judgment against 595831 Ontario Inc. for soil remediation work. 595831 Ontario Inc. denied an enforceable contract and claimed indemnity from its geotechnical engineer, Paterson Group Inc., alleging negligence.

Paterson Group Inc. denied liability and counterclaimed for unpaid engineering services.

The court found an enforceable contract existed between Drummond and 595831 Ontario Inc., dismissed 595831 Ontario Inc.'s claim against Paterson Group Inc., and granted Paterson Group Inc.'s counterclaim, finding that Paterson met the standard of care.

The plaintiff bank brought a motion for summary judgment to enforce personal guarantees signed by the defendant for corporate loans.

The defendant opposed the motion, arguing non est factum and undue influence by the third party, who controlled the corporations and assured her she would face no personal liability.

The court dismissed the bank's motion, finding genuine issues for trial regarding the defendant's carelessness and the lack of independent legal advice.

The court granted partial summary judgment to the defendant on her third-party claim for indemnity against the third party.

The plaintiff Bank brought a motion for summary judgment to enforce personal guarantees given by the defendants in respect of a corporate borrower's obligations.

The defendant guarantor did not dispute the default but argued the Bank failed to mitigate its damages by properly protecting its security.

The court rejected this defence, noting the Bank had taken steps to protect its security in related insolvency proceedings, and granted summary judgment against the guarantor for the principal amounts owing plus contractual interest.

The plaintiff commenced a construction lien action.

Both parties consented to refer the matter for trial before a Master.

The court granted the referral, directing the action to proceed to trial before a Master in Toronto.

The plaintiff corporation brought an action to enforce a promissory note for a $335,000 loan made to the defendants.

The defendants argued the note was not a bona fide loan but rather a tax evasion scheme devised by the plaintiff's principal, and that the funds were an advance on future earnings.

The court rejected the defendants' tax fraud allegations as unbelievable and found the promissory note to be a valid, enforceable contract.

The court held the defendants in default and ordered them to pay the outstanding balance of $191,387.02, or alternatively granted the plaintiff a security interest in the defendants' home.

The plaintiff, San Remo Lighting, moved for summary judgment against the defendants, Am-Tech Electrical Inc. and others, alleging breach of trust obligations under the Construction Lien Act (CLA) for unpaid invoices.

Am-Tech admitted to not segregating trust monies as required by the CLA but later placed the claimed amount in its counsel's trust account.

The court, adopting reasoning from a Manitoba case, found that while a breach of trust had occurred, the subsequent reconstitution of the fund raised a genuine issue requiring a trial to fully evaluate the ramifications of the breach and the defendants' right to set-off.

The motion for summary judgment was dismissed, and the funds were ordered to be paid into court.

The court issued an amendment to a previous costs endorsement to correct an omission.

The original endorsement failed to include HST on the awarded fees of $55,500.00.

The endorsement was amended to add $7,215.00 for HST on fees, bringing the total costs award to $64,729.66.

The appellants appealed the dismissal of their claim for a declaration of a right of way over the respondents' property.

They argued that the original grant met all four requirements to establish an easement by grant and that the trial judge erred in considering post-grant evidence and in finding the grant ambiguous.

The Court of Appeal upheld the trial judge's decision, finding that the grant was ambiguous and lacked sufficient metes and bounds descriptions.

The trial judge correctly determined that the plaintiffs failed to establish the nature and location of the servient tenement over which the right of way was granted as it existed at the date of the grant, which was fatal to the claim.

The defendants, having succeeded in the underlying land dispute concerning a right-of-way, sought substantial indemnity costs of $85,578.50.

The plaintiffs agreed to pay costs but disputed the quantum, proposing $51,157.13.

The court considered factors under the Courts of Justice Act and Rule 57.01(1) of the Rules of Civil Procedure, including complexity, importance, counsel experience, and hours spent.

Despite the defendants' counsel's extensive hours, the court found a 333% disparity in trial preparation hours between the parties unreasonable.

The court reduced the defendants' claimed hours by 33%, awarding $57,514.66 inclusive of disbursements and HST.

The City of Ottawa appealed an arbitration award that found it breached a 2004 Minutes of Settlement with Coliseum Inc. regarding the relocation of Coliseum's dome operations from Frank Clair Stadium.

The arbitrator had awarded Coliseum $2,240,000 in damages.

The Superior Court of Justice granted leave to appeal, finding the arbitrator made extricable errors of law in interpreting the settlement agreement and in applying the doctrines of waiver and promissory estoppel.

Applying a reasonableness standard of review, the court held the arbitrator's interpretation was unreasonable and inconsistent with the facts.

The appeal was allowed and the arbitration award was set aside.

Municipal councillors brought a Rule 21 motion to strike a defamation action arising from statements made during a municipal council meeting and alleged media interviews.

They argued the statements were protected by absolute privilege and that certain allegations were deficient or statute-barred under the Libel and Slander Act.

The court held that Canadian law recognizes only qualified privilege for statements made by municipal councillors during council proceedings and declined to extend absolute privilege.

The court also found the allegations regarding republication in the media and the statutory notice were sufficiently pleaded at this stage.

The motion to strike was dismissed.

Following the dismissal of a defendant’s motion for summary judgment, the court addressed the issue of costs.

The plaintiff sought partial indemnity costs totaling $17,234.66 plus HST, while the defendant argued the plaintiff should recover only $6,795.

Applying the factors under Rule 57.01(1) of the Rules of Civil Procedure and the principle of proportionality, the court held that the plaintiff was entitled to the full amount claimed.

The requested costs were reasonable, particularly as they were less than the amount originally claimed by the defendant when it anticipated success on the motion.

The court determined costs following a motion involving multiple forms of relief, including leave to amend the statement of claim, settlement of a master's order, contempt, a case management timetable, and refusals and undertakings.

The moving party was largely unsuccessful on several issues, including a contempt motion that the court found premature and without merit.

The court held that contempt is a serious allegation and failure on such a claim may justify substantial indemnity costs.

Although there was divided success on some discovery-related issues, the defendants were overall the successful parties.

Costs were fixed in favour of the defendants.