Kelli-Anne Day

Following trial, the court determined costs in a boundary and related damages dispute involving highly disproportionate litigation expense relative to the nominal value of the land in issue.

Although the plaintiffs succeeded on the principal boundary issue and in resisting the counterclaim, the court found both sides responsible for inefficient and unreasonable conduct, and specifically found delay and cost consequences attributable to the plaintiffs’ litigation choices.

Applying s. 131 of the Courts of Justice Act and Rule 57.01 considerations, the court declined to award any counsel fees.

The court awarded only partial disbursements, ordering the defendants jointly and severally to pay $25,000.00 plus HST.

The bankrupt applied under s. 187(5) of the Bankruptcy and Insolvency Act to vary a conditional discharge order, arguing the Trustee incorrectly calculated surplus income and failed to consider his family and financial situation.

The Trustee opposed, arguing the application was premature and should have been brought under s. 172(3).

The court held that s. 187(5) was the appropriate mechanism because the bankrupt sought to adduce new evidence and arguments overlooked at the initial hearing.

The court found the Trustee's surplus income calculation was incorrect as it failed to account for the bankrupt's actual monthly income and his custody of two children.

Concluding that further payments would hinder the bankrupt's rehabilitation, the court varied the order to grant an absolute discharge.