Thomas Dumigan

Following the dismissal of a proposed intervener's motion to intervene, the successful party and another intervener sought costs.

The court awarded the successful party elevated costs fixed at $460,000, apportioning liability among the proposed intervener (65%) and the two defendants (17.5% each) due to the defendants' delayed positions which complicated the motion.

The second intervener was awarded $12,500 in costs against the proposed intervener, limited to costs incurred after it first requested them in its factum.

Metrolinx brought a motion to quash an appeal by the Haudenosaunee Development Institute (HDI) from an order dismissing its motion for an interlocutory injunction, and also sought to set aside an interim injunction granted by a single judge of the Court of Appeal.

Metrolinx further raised a preliminary allegation of reasonable apprehension of institutional bias against the court.

HDI, in turn, sought an extension of the interim injunction.

The Court of Appeal dismissed Metrolinx's bias challenge, finding no reasonable apprehension of bias.

The court then granted Metrolinx's motion to quash the appeal, concluding that the lower court's order was interlocutory, not final, and therefore the appeal lay with the Divisional Court with leave, not the Court of Appeal.

The Haudenosaunee Development Institute (HDI) sought an interim injunction from the Court of Appeal for Ontario to prevent Metrolinx from removing trees near Osgoode Hall.

This motion was brought pending HDI's motion for leave to appeal the Divisional Court's denial of leave to appeal an earlier injunction denial.

The Court of Appeal dismissed the interim injunction, finding that HDI failed to demonstrate a serious issue to be tried.

The court reiterated that appeals from an intermediate court's refusal of leave to appeal are generally not available unless the lower court mistakenly declined jurisdiction, an exception not met by HDI's arguments regarding constitutional rights or consultation.

The applicant brought a motion for leave to appeal a prior decision.

The Divisional Court dismissed the motion for leave to appeal and ordered costs of $15,000 payable by the applicant to the respondent, to be netted against a prior costs award.

The court also extended the interim relief previously ordered until the end of the day.

The Haudenosaunee Development Institute (HDI) brought a motion for an interlocutory injunction to prevent Metrolinx from removing 11 trees on its property near Osgoode Hall, pending adequate engagement regarding the Ontario Line subway project.

The court dismissed the motion, finding that HDI would suffer no irreparable harm as the trees were not historically unique and would be replaced, and that monetary damages would suffice for any compensation claims.

Furthermore, the balance of convenience strongly favoured Metrolinx due to the severe financial and public interest consequences of delaying the transit project.

The appellants appealed a trial judgment dismissing their action for negligent misrepresentation, which was found to be statute-barred under the Limitations Act, 2002.

The trial judge also found the action could not succeed on the merits.

The Court of Appeal upheld the trial judge's decision, finding that the appellants, as professional engineers, knew or ought to have known of their claim much earlier than when they filed their statement of claim, despite the respondents' ameliorative efforts and superior expertise.

The court emphasized that an expert report was not necessary for discoverability in these circumstances.

The appeal was dismissed.

The Haudenosaunee Development Institute (HDI) brought a motion to be added as a party and appointed as a representative of the Haudenosaunee Confederacy in an action commenced by the Six Nations of the Grand River Band of Indians against Canada and Ontario.

Following case conferences, the parties and HDI consented to a timetable for the motion and terms for providing notice to potentially interested non-parties.

The court issued an order on consent setting out the timetable and the specific notice requirements.

In a costs decision following dismissal of a negligent misrepresentation action as statute-barred and dismissal of the defendants' counterclaim, the court held the defendants were the successful parties in the main action and presumptively entitled to costs, while the plaintiffs were separately entitled to costs of defending the counterclaim.

The court rejected substantial indemnity costs based on allegations in the pleadings and on a purportedly favourable Rule 49 offer because the offer required an overly broad release and also included the counterclaim, making comparison with the judgment impossible.

Applying the Rule 57 factors, the court fixed the defendants' fees on a partial indemnity basis and allowed full disbursements, including expert disbursements for experts not called where the reports were reasonably necessary.

The plaintiffs were awarded a discrete amount for the counterclaim.

The defendant brought a motion for security for costs under Rule 56.01(1)(d), arguing there was good reason to believe the plaintiff corporation had insufficient assets in Ontario.

The defendant relied on an unsatisfied foreign arbitral award and the plaintiff's delay in paying a previous costs order.

The court dismissed the motion, finding the foreign award was likely statute-barred in Ontario and the payment of the previous costs order demonstrated an ability to pay, not an inability.

The court also noted the defendant's unexplained 28-month delay in bringing the motion would have been fatal regardless.

The appellant appealed a Committee of Adjustment decision approving a consent to sever lands owned by a railway company to facilitate a sale to the applicant for future redevelopment.

During the hearing, it was discovered that the Haudenosaunee Development Institute (HDI) had not received notice, leading to an adjournment and HDI being added as a party on consent.

Relying on uncontroverted expert planning evidence, the Tribunal found that the proposed severance had appropriate regard for matters of provincial interest, satisfied the criteria under section 51(24) of the Planning Act, and was consistent with provincial policies.

The appeal was dismissed and the provisional consent was granted subject to conditions.

The appellant appealed a Committee of Adjustment decision approving a consent application to sever lands owned by CN Rail.

During the hearing, evidence emerged that the Haudenosaunee Confederacy Chiefs Council (HCCC) and Haudenosaunee Development Institute (HDI) opposed the development but had not been formally notified of the appeal.

The Tribunal determined it had a duty to ensure adequate notice was provided to affected Indigenous peoples pursuant to section 35 of the Constitution Act, 1982 and provincial planning policies.

The Tribunal directed notice be given to HDI, which subsequently requested party status.

The hearing was adjourned on consent of all parties to allow for settlement negotiations and to address HDI's status request.

The plaintiffs brought an action for negligent misrepresentation against the defendants, alleging that steam generators purchased for resale in the Former Soviet Union failed to perform as represented in promotional brochures.

The defendants counterclaimed for unpaid invoices.

The court dismissed the plaintiffs' action, finding it was statute-barred under the former Limitations Act because the plaintiffs knew or ought to have known of the equipment's deficiencies well outside the six-year limitation period.

The court also found no detrimental reliance on the brochures.

The defendants' counterclaim was dismissed for lack of proof.

The defendant Bank appealed a Master's decision denying its motion for security for costs against the plaintiff, a film production company.

The Superior Court allowed the appeal, finding the Master erred by placing too high a burden on the Bank at the first stage of the test and by making palpable and overriding errors regarding the plaintiff's liabilities and secured debts.

The Court found the Bank established good reason to believe the plaintiff had insufficient assets in Ontario, and the plaintiff failed to prove it had sufficient exigible assets or that an order for security for costs would be unjust.

The plaintiff was ordered to post security for costs.

The plaintiffs brought a motion under Rule 36 to cross-examine the 89-year-old president of the defendant companies out-of-court before trial, citing his progressive memory decline.

The defendants opposed, arguing the court lacked jurisdiction under Rule 36.01(2) because the plaintiffs were not the party introducing the witness's evidence.

The court granted the motion, finding that the witness's evidence in chief had already been captured by affidavit, and securing his cross-examination before trial was necessary to preserve his evidence and ensure fairness.

The defendants brought a motion for leave to amend their statement of defence and counterclaim shortly before the scheduled trial.

The plaintiffs opposed the motion, arguing that the lengthy delay created a presumption of prejudice that could not be compensated by costs or an adjournment.

The court agreed, finding that the defendants failed to provide an adequate explanation for the delay and failed to rebut the presumption of prejudice.

The court also noted that actual prejudice would result, given the need for further discoveries and the declining memory of the defendants' key witness.

The motion was dismissed, save for an undisputed amendment to reduce the damages claim.

The Court of Appeal for Ontario heard motions to quash two appeals brought by 108 Media Corporation from decisions of an application judge.

The first appeal concerned a refusal to grant leave to appeal from an arbitral award under section 45(1) of the Arbitration Act.

The second appeal concerned a decision recognizing and enforcing the arbitral award dated December 11, 2017.

The court found that no appeal lies from a refusal to grant leave to appeal on the merits and that section 50(3) of the Arbitration Act deprives a judge of jurisdiction to refuse to enforce an arbitral award except in certain circumstances not present here.

Both appeals were quashed and costs were awarded to BGOI Films Inc. on a higher scale due to the appellant's dilatory litigation strategy.