Kelsey Kathleen Gordon

The appellant, Elizabeth Philbert, brought a motion to the Court of Appeal for Ontario to set aside a Registrar's dismissal of her previous motion.

This previous motion sought to review an order by Thorburn J.A. that had dismissed her attempt to extend time to perfect an appeal of a Superior Court order.

The Superior Court order, issued by Steele J., had dismissed her claim as frivolous, vexatious, or an abuse of process under Rule 2.1.01.

The Court of Appeal, through George J.A., denied Philbert's motion, finding that she failed to properly perfect her motion by serving the respondent and that the underlying appeal lacked merit, consistent with prior findings that her claims were vexatious litigation.

Costs were awarded to the respondent.

This endorsement addresses the costs arising from a two-week trial where the Plaintiff and Third Party were entirely successful.

The court awarded substantial indemnity costs for the trial, citing the Defendants' unreasonable litigation conduct and the Garber Defendants' rejection of a generous Rule 49 offer to settle.

Additionally, costs thrown away due to an adjournment caused by Ms. Garber's ill health were awarded against the Garber Defendants, though reduced from the amount claimed.

The decision also clarifies that the Costs Subcommittee's recommended rates for Rule 57 are outdated and discusses the limited relevance of a litigant's ability to pay costs without sufficient evidence.

During a trial for nuisance, the defendants sought to introduce evidence of the plaintiff's alleged retaliatory conduct (e.g., loud music, smoke) to mitigate punitive damages.

The court ruled this evidence inadmissible, finding no causal connection between the plaintiff's post-nuisance conduct and the defendants' initial actionable conduct (building a dock) or their failure to rectify it.

The court emphasized that for such evidence to be relevant to punitive damages, it must have provoked the defendant's actionable conduct, and any defense based on the plaintiff's conduct influencing the failure to rectify must be pleaded.

This case involved consolidated applications seeking declaratory relief regarding lease renewal options.

Brewers Retail Inc. (Landlord) and Hasty Market Corp. (Tenant) disputed the number of five-year renewal options granted in a 2009 lease renewal, with the Tenant asserting two options and the Landlord one.

The Tenant also raised promissory estoppel.

The court found that the agreement unambiguously provided for only one five-year renewal option, not two, based on the written record and the Landlord's waiver letter.

The court also dismissed the promissory estoppel claim, concluding that no unambiguous promise was made by the Landlord and the Tenant failed to establish detrimental reliance.

Promissory estoppel was deemed inapplicable to create new rights not agreed upon.