Kevin Whitaker

In an estates dispute between co-executors, the court determined the issue of costs following prior litigation concerning the administration of the estate.

The court applied the factors under Rule 57 of the Rules of Civil Procedure and concluded that one executor had been principally successful, though the result was somewhat mixed.

The court emphasized that estate litigation should not automatically result in costs being paid from the estate and that parties should ordinarily bear their own litigation costs unless the dispute was necessary to properly administer the estate.

Finding that this was not such a case, the court ordered costs payable personally by the losing parties.

Following a family law motion, the court determined the issue of costs and addressed the respondent’s request for reconsideration of a prior order.

Applying the general principle that costs presumptively follow the result, the court found that the applicant was successful for the most part.

The court considered proportionality, urgency of the matter, and the reasonable expectations of the losing party.

The applicant was awarded fixed costs of $3,500 inclusive of taxes and disbursements.

The request to reconsider the prior order was declined.

Following settlement of a family law motion to change at conference, the parties made written submissions on the issue of costs.

The court considered the parties’ offers to settle, their litigation conduct, and the principle of proportionality in exercising discretion over costs.

The judge found both parties were equally responsible for how the litigation had been managed and that the outcome reflected equal success.

In the circumstances, the court declined to award costs to either party.

Costs decision following a lengthy will challenge trial.

Although the plaintiff ultimately proved the validity of the will and became executor and principal beneficiary, the court found the defendants had reasonable grounds to challenge the will due to numerous suspicious circumstances and the plaintiff’s own conduct.

Applying Rule 57.01 and the modern estates litigation approach, the court held that the usual “loser pays” principle may yield where there is a reasonable basis to question testamentary capacity or execution.

Given the suspicious circumstances and litigation conduct, it was appropriate for the estate to bear the litigation costs.

The court fixed costs for the plaintiff and defendants at specified amounts payable from the estate.

Following an unsuccessful jurisdictional motion brought by certain respondents seeking dismissal of part of a claim, the court addressed costs.

The motion was dismissed and another respondent was entirely successful.

Applying the factors under Rule 57 of the Rules of Civil Procedure, including proportionality and the reasonable expectations of the parties, the court fixed costs in favour of the successful party.

Costs were awarded inclusive of taxes and disbursements.

The court determined costs following a short family law motion in which the applicant was mostly successful.

The issues were neither complex nor novel and were argued in a two‑hour hearing with no formal offers to settle and no bad faith by either party.

The applicant sought full recovery exceeding $22,000, while the respondent argued that no costs should be awarded or, alternatively, that costs should be limited to $3,000.

Applying proportionality and the reasonable expectations of the parties, the court found the applicant’s requested range inappropriate for an interim motion.

Costs were fixed at $7,500 inclusive of taxes and disbursements.

The appellant appealed a decision of the Consent and Capacity Board under the Health Care Consent Act, 1996.

The appeal had not yet been perfected because the appellant had not filed the required factum after service of the Board record and transcript.

The court determined that, given the factual and legal complexity of the issues, the appointment of amicus curiae was necessary to assist the appellant in preparing a factum and presenting the appeal.

The court directed the Attorney General to select experienced counsel from the Consent and Capacity Panel to act as amicus curiae and established timelines for the filing of factums and scheduling of the appeal hearing.

Following a family law hearing, the court invited written submissions from the parties regarding the proper calculation of child support arrears.

The applicant provided written submissions.

The respondent was granted additional time to file responding submissions.

The endorsement provides procedural directions regarding the submission deadline before the court determines the arrears calculation.

Following a motion hearing concerning a significant advance payment request in complex estate-related litigation, the court determined the appropriate costs award.

Applying the factors in Rule 57 of the Rules of Civil Procedure, the court considered the importance and novelty of the issues and the reasonable expectations of experienced litigants.

The plaintiff was successful and entitled to substantial costs for the motion.

The court also addressed the entitlement of the estate trustee during litigation to costs payable from the estate under a prior order.

The court determined costs following family law motion proceedings.

Applying Rule 24 of the Family Law Rules and Rule 57 of the Rules of Civil Procedure, the court emphasized proportionality and the reasonable expectations of the parties.

The issues were significant but the motions were brief, each lasting only a few hours.

As the applicant was largely successful and had made relevant settlement offers, the court awarded costs for two motion attendances and related questioning.

Costs were fixed at $25,000 inclusive of taxes and disbursements.

Following a successful summary judgment motion for payment of shipped merchandise, the parties disputed the appropriate interest rate on the judgment amount.

The plaintiff relied on a 2% per month interest notation printed on its invoices.

The court held that the unilateral notation on invoices did not establish an agreement to that interest rate, particularly given the parties’ prior course of dealing where interest had not been charged.

In the absence of an agreement, the presumptive statutory interest rate under the Courts of Justice Act applied.

The court ordered that both pre-judgment and post-judgment interest be calculated at the statutory rate as simple interest.

On a motion and cross-motion in a long-term marriage, the applicant sought interim spousal support, arrears, disclosure orders, and preservation of property.

The respondent disputed the amount of interim support and sought to sever the divorce from corollary issues.

Applying the Spousal Support Advisory Guidelines and considering the respondent’s true available income including grossed-up corporate earnings, the court fixed interim spousal support at $25,187 per month.

Retroactive support was ordered from January 1, 2012, and disclosure obligations were imposed on the respondent.

The court also granted an order preventing depletion of property and severed the divorce from the remaining issues.

The applicant sought a divorce, equalization relating to a condominium property in China, and access.

The respondent brought a cross-application seeking child support and arrears.

The court found no evidentiary basis that the applicant had any interest in the foreign property and dismissed the equalization claim.

Income was imputed to the applicant for certain years due to evidence of undeclared business income, and retroactive child support arrears were ordered from the date of separation together with ongoing support and contributions to extraordinary expenses.

Following a four‑day trial under the Simplified Rules in which the action was dismissed, the defendant sought substantial indemnity costs relying on a Rule 49 offer to settle.

The plaintiff argued that no costs should be ordered or that costs should be limited to a modest amount due to the nature of simplified procedure and the unsettled state of the law on the facts.

The court accepted that costs in Simplified Rules proceedings are often significantly lower than ordinary trial costs and should be assessed with that expectation in mind.

Considering the Rule 49 offer and the factors in Rule 57, the court fixed the defendant’s costs at a reduced amount inclusive of taxes and disbursements.

A surviving spouse sought an advance equalization payment of $4.5 million from the estate of her deceased husband under the Family Law Act or, alternatively, partial summary judgment.

The motion was opposed by several defendants asserting potential claims against the estate and challenging their standing and the appropriateness of the advance.

The court held that the equalization entitlement between spouses is personal under the Family Law Act and that the defendants were neither proven creditors nor beneficiaries.

Applying the three-part test for advance equalization payments from Laamanen v. Laamanen, the court found a reasonable need for litigation funding, little doubt of entitlement to at least the requested amount, and that granting the advance was just in the circumstances.

A volunteer at a community radio station alleged harassment by another volunteer and sought an injunction requiring the station to enforce its harassment policies, along with damages.

The court considered whether it should intervene in the internal affairs of a private volunteer organization that had not strictly followed its written harassment procedures.

Applying jurisprudence governing judicial oversight of voluntary associations, the court held that internal decision-making in such organizations attracts deference and intervention should be exercised cautiously.

Although the station did not strictly comply with its policies, it acted in good faith, made repeated efforts to resolve the dispute, and substantially complied with the spirit of its procedures.

In the circumstances, judicial intervention was not warranted.

Following earlier endorsements granting relief to the applicant in an estate dispute, the court determined the issue of costs.

The judge reviewed the parties’ written submissions, including settlement positions, and applied the discretionary factors under Rule 57 of the Rules of Civil Procedure.

Considering the expectations of the parties in the event of an unsuccessful outcome, the court held that the applicant was entitled to recover her costs.

The costs were ordered payable out of the estate and fixed in a specified amount including taxes and disbursements.

The plaintiffs moved for a finding of civil contempt against a judgment debtor and sought orders under Rule 60.18(6) of the Rules of Civil Procedure to examine members of the debtor’s family in aid of execution.

They alleged breaches of several pre‑judgment orders and of a post‑judgment order requiring disclosure of financial information, as well as refusals to answer questions during a debtor examination.

The court held that orders made prior to judgment concerning liability and damages do not generally serve a purpose in post‑judgment execution proceedings and cannot ground a contempt finding once judgment has been entered.

The court further found that the alleged breach of the post‑judgment disclosure order was not proven beyond a reasonable doubt to be deliberate and willful.

Because the plaintiffs had not first sought an order compelling answers to disputed questions or exhausted available enforcement steps, the court also refused to order examinations of family members.

The applicant sought a declaration under s. 140(1) of the Courts of Justice Act that the respondent was a vexatious litigant.

The respondent had initiated numerous actions against medical professionals, regulatory investigators, and opposing counsel, including re‑litigating a medical malpractice claim previously dismissed on summary judgment.

The court found the respondent’s conduct exhibited multiple indicators of vexatious proceedings, including repeated litigation of decided issues, actions lacking a cause of action, and litigation against opposing counsel.

Considering the pattern of abusive litigation and the need to protect the court’s process and potential defendants, the court declared the respondent a vexatious litigant.

The respondent was prohibited from commencing further proceedings without leave of the Superior Court of Justice.

The defendant brought a motion to strike the plaintiff's claim under Rules 21 and 25.

The plaintiff, who had several actions assigned for case management and faced a pending vexatious litigant motion, failed to appear at the hearing.

The court granted the motion to strike on three grounds: the evidence relied upon was inadmissible under section 36(3) of the Regulated Health Professions Act, 1991; there was no allegation of bad faith to overcome immunity under section 38; and no duty of care was pleaded.

The claim was struck without leave to amend, and costs of $8,000 were awarded to the defendant.