Laura J. Freitag

This costs endorsement addresses the allocation and scale of costs following a motion by the plaintiff, Paula Boutis, to amend her statement of claim.

The court found divided success among the parties and considered the conduct of both sides, ultimately awarding costs to the defendants on a partial indemnity basis for the motion and on a substantial indemnity basis for consequential steps.

The court also clarified the scope of further discovery and emphasized the importance of following judicial directions regarding submissions.

This decision concerns a motion by Paula Boutis to amend her statement of claim in an employment and civil liability action against The Corporation of the County of Norfolk, the Board of Health for Haldimand-Norfolk Health Unit, Kristal Chopp, and Jason Burgess.

The court reviews the proposed amendments, including new causes of action such as breaches of the Human Rights Code, intrusion upon seclusion, intentional interference with contractual relations, negligent infliction of mental suffering, and defamation.

The court applies the principles governing amendments to pleadings, limitation periods, and the rules of pleading, granting or refusing leave to amend specific paragraphs accordingly.

The defendants brought two motions: one to set aside a certificate of non-attendance for a cross-examination and another to compel the plaintiff to answer refused questions and questions taken under advisement during her cross-examination on two affidavits.

The court granted both motions in favour of the defendants.

The certificate of non-attendance was set aside, as the plaintiff's counsel acted unreasonably in obtaining it.

The plaintiff was compelled to answer most of the refused questions, as the court found them relevant to the underlying contempt motion and the dismissal motion, and in some instances, solicitor-client privilege was impliedly waived.

Costs were awarded to the defendants on a substantial indemnity basis for the certificate motion due to the plaintiff's unreasonable conduct, and on a partial indemnity basis for the refusals motion.

The applicant sought judicial review of a WSIAT decision denying his claim for chronic or traumatic mental stress benefits.

The WSIAT had found that the applicant's psychological condition was primarily caused by his job reclassification and resulting wage impact, which are employer decisions excluded from compensation under the Workplace Safety and Insurance Act.

The Divisional Court dismissed the application, finding the WSIAT's decision reasonable and supported by the medical evidence.

The applicant sought judicial review of two decisions by the Human Rights Tribunal of Ontario (HRTO) that dismissed his requests to reactivate deferred human rights applications and denied reconsideration.

The HRTO had found that the applicant failed to reactivate his applications within the 60-day time limit and did not provide a good faith explanation for the delay.

The Divisional Court held that the HRTO's decisions were reasonable, as they were based on the applicant's failure to comply with procedural rules and a lack of medical evidence supporting his claim of disability-related delay.

The application for judicial review was dismissed.

The appellants brought a motion to set aside, amend, or vary the Court of Appeal's previous order regarding trial costs, arguing procedural unfairness, inconsistency with costs principles, and insufficient reasons.

The motion was brought under rules 59.06(1) and (2)(d) of the Rules of Civil Procedure.

The court dismissed the motion, finding that the relief sought was not available under rule 59.06, as it was an attempt to reargue issues already adjudicated.

The court clarified that challenges to discretionary orders, procedural fairness, or adequacy of reasons are typically grounds for seeking leave to appeal to the Supreme Court of Canada.

The court also addressed and dismissed belated arguments regarding the order settlement procedure under rule 59.04 and the inapplicability of rule 37.14.

The plaintiff, Windsor Salt Ltd., sought an urgent interim injunction against Unifor, its Locals 1959 and 240, James Gatto, and other unidentified picketers, to restrain unlawful picketing activities during a labour dispute.

The court granted the interim injunction, finding that the plaintiff had satisfied the preconditions under section 102 of the Courts of Justice Act, including demonstrating a serious question to be tried, irreparable harm, and that the balance of convenience favoured granting the injunction.

The court addressed jurisdictional arguments regarding naming unions as parties and the requirement for oral evidence and police assistance efforts, tailoring the injunction to permit lawful picketing while restraining unlawful obstruction, intimidation, and trespass.

The appellant, Casey Zizek, appealed the dismissal of a motion to stay proceedings.

The underlying action involved an alleged fraud by the defendants against the respondent school board.

The school board had settled with other defendants via a Mary Carter or Pierringer agreement but failed to immediately disclose this to the appellant.

The Court of Appeal found that the motion judge erred by not applying the principle that immediate disclosure of such agreements is mandatory and that failure to do so constitutes an abuse of process, regardless of prejudice.

The appeal was allowed, and the proceeding was stayed.

The appellants, former portfolio managers, appealed a trial decision dismissing their claim for over $1.3 million in performance fees and a discretionary bonus from their former employer.

The Court of Appeal upheld the trial judge's finding that the appellants were not contractually entitled to performance fees directly from the respondent, as their entitlement was structured through a side agreement with a lead portfolio manager.

However, the Court found the trial judge erred in precluding the appellants from arguing their entitlement to a discretionary bonus, as this claim was sufficiently pleaded.

The Court awarded each appellant $115,000 for the discretionary bonus, determining that the employer's discretion in awarding bonuses was not exercised fairly and reasonably given the fund's exceptional performance and bonuses paid to similarly situated employees.

The appellant sought to set aside or vary an order of a motion judge that dismissed his request for a stay pending appeal.

The Court of Appeal for Ontario upheld the motion judge's decision, finding no basis to interfere.

The court confirmed that the appellant failed to demonstrate irreparable harm or that the balance of convenience favored a stay, applying the established test from RJR-MacDonald Inc. and Livent Inc. The court also dismissed the appellant's argument regarding a reasonable apprehension of bias.

The plaintiff, Dik Lee, had multiple costs awards totalling $29,000 ordered against him.

He attempted to pay by cheques made out to all defendants, which could not be cashed.

The defendants sought directions from the Case Management Judge regarding the payment of a specific $4,000 costs order.

The plaintiff argued he had complied and that paying to the defendants' law firm in trust or a single defendant would be unlawful.

The court, relying on Rule 59.06(2)(c) of the Rules of Civil Procedure, found the plaintiff's position disingenuous and that he was not complying with the spirit of the orders.

The court directed the plaintiff to pay the $4,000 costs order by issuing a cheque to "Filion Wakely Thorup Angeletti LLP, In Trust" to ensure the order could be carried into operation.

The court declined to award further costs for the submissions on this issue.

The appellant, Dik Lee, appealed an order refusing him leave to amend his statement of claim to add a claim of gross negligence against the directors and officers of Magna International Inc., his former employer.

The proposed amendments sought to assert a duty of care based on s. 32 of the Occupational Health and Safety Act, related to a workplace harassment investigation.

The Court of Appeal dismissed the appeal, affirming that there is no tort of negligent investigation by an employee against an employer in Ontario, nor tort liability for breach of a statutory duty.

The court also upheld the refusal to permit claims against unnamed defendants using pseudonyms due to lack of material facts.

The plaintiff's motion for the case management judge's recusal was previously dismissed.

The parties could not agree on costs and provided written submissions.

The defendants sought $4,000 on a partial indemnity basis.

The self-represented plaintiff argued he should not pay costs, claiming he did not formally bring a motion and was impecunious.

The court found the plaintiff was responsible for the motion due to his persistent allegations of bias.

The court rejected the impecuniosity argument, noting a lack of evidence and that the plaintiff's conduct caused delay and wasted judicial resources.

The plaintiff was ordered to pay $4,000 in costs to the defendants.

The moving party, UAP Inc., brought a motion for leave to appeal the order of E. M. Morgan J. released July 19, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $7,500 to the responding parties Robert Dinino and Lawrence Tyler Bacchus, and $7,500 to the responding parties Yako Hirmiz (Jacob) Yako, Sabah (Sam) Yako, and Sako Auto Parts Inc.

The self-represented plaintiff brought a motion seeking the recusal of the case management judge, alleging bias and a reasonable apprehension of bias.

The plaintiff's allegations included complaints filed with the Canadian Judicial Council, dissatisfaction with procedural orders, and claims that the judge was disrespectful and failed to record a case conference.

The court dismissed the motion, finding that the plaintiff failed to establish a reasonable apprehension of bias.

The court noted that the test for bias is objective and that a litigant's subjective dissatisfaction with procedural orders or the filing of a complaint with the Canadian Judicial Council does not constitute cogent evidence of bias, particularly in a case-managed environment.

The plaintiff purchased an auto parts business from two of the defendants and sought an interlocutory injunction to enforce non-competition and non-solicitation clauses.

The plaintiff alleged the defendants established a competing business just outside the restricted radius and used a related company and former employees to solicit customers.

The court dismissed the motion, finding the plaintiff failed to establish a strong prima facie case that the restrictive covenants were breached, failed to prove irreparable harm, and that the balance of convenience favoured the defendants.

Following the dismissal of the defendants' motion for partial summary judgment, the parties made written submissions on costs.

The plaintiff sought costs exceeding full indemnity, while the defendants argued for costs in the cause or a reduced amount due to the plaintiff's delay.

The court found that the defendants did not act in bad faith or unreasonably in bringing the motion, noting that the delay was largely attributable to the plaintiff's counsel.

The court awarded the plaintiff costs on a partial indemnity scale, fixed at $25,735.54.

The plaintiff sued his former employer and three individual managers for wrongful dismissal, moral damages, punitive damages, and intentional infliction of mental suffering, alleging workplace harassment and reprisal.

The defendants brought a motion for partial summary judgment to dismiss the claims against the individual defendants.

The court dismissed the motion, finding that the claims against the individual defendants were factually intertwined with the claims against the corporate employer and were not readily separable.

The court concluded that granting partial summary judgment would create a material risk of inconsistent findings and would not be a proportionate or cost-effective way to resolve the litigation.

The self-represented plaintiff brought a motion for leave to amend his statement of claim to add unnamed directors and officers of the corporate defendant, alleging negligence in a workplace harassment investigation.

The court dismissed the motion, finding that the proposed defendants were not identified, there is no tort of negligent investigation against employers in Ontario, and the plaintiff failed to plead material facts showing the directors and officers exhibited a separate identity of interest from the corporation.

The plaintiffs, two portfolio managers, sued their former employer, an investment firm, claiming entitlement to $1.38 million in performance fees earned by the fund they managed.

The plaintiffs argued their employment agreements implicitly included these fees based on industry standards, or alternatively, that they were entitled to them under quantum meruit or an oral agreement.

The court dismissed the claims, finding the employment agreements unambiguously excluded performance fees, which were instead governed by a separate arrangement with a senior portfolio manager.

The court also rejected the quantum meruit claim as the plaintiffs were fully compensated under their contracts, and found the oral agreement was conditional on improved behaviour that the plaintiffs failed to demonstrate.

A late claim for discretionary bonuses was also dismissed as it was not properly pleaded.