Lia Zweig Boritz

This is a costs decision following a successful application by Sukhvinder Kang (Applicant) against Resham Dhillon (Respondent) for the sale of a property.

Kang sought partial indemnity costs of $24,202.65.

The court found that Dhillon's evidence in the main application was inconsistent and lacked credibility, and that his denial of previously acknowledged facts regarding property ownership unnecessarily increased Kang's litigation costs.

The court applied the factors under Rule 57.01 and Section 131(1) of the Courts of Justice Act, concluding that the costs sought by Kang were fair and reasonable given the circumstances and Dhillon's conduct.

The applicant sought partition and sale of a property, asserting 50% beneficial ownership despite the respondent holding sole legal title.

The respondent denied beneficial ownership and raised limitation period defenses.

The court found the applicant to be a 50% beneficial owner based on evidence including a UK consent order from divorce proceedings and the respondent's own acknowledgments.

The court dismissed the limitation period defenses, finding the cause of action accrued when the respondent first refused to cooperate in the sale after a lien was discharged.

The court ordered the property's sale and an accounting of rents, but dismissed the applicant's claim to offset amounts owed under the UK consent order, citing lack of jurisdiction and delay.

The applicant appealed the Town of Aurora Committee of Adjustment's denial of minor variances required to construct a two-storey single detached dwelling.

The requested variances sought to increase the maximum permitted footprint and gross floor area.

The Tribunal found that the requested increase to the gross floor area was not minor in nature and that the proposed development posed unacceptable risks to a critical municipal stormwater sewer pipeline.

The appeal was dismissed and the variances were not authorized.

The applicant appealed the refusal of a minor variance by the Town of Aurora Committee of Adjustment.

The variance sought to increase the maximum lot coverage from 35% to 41.1% for a two-storey dwelling on a lot within a draft plan of subdivision.

The Tribunal found that the requested variance met the four tests under s. 45(1) of the Planning Act, as it was generally consistent with the existing neighbourhood and maintained the required yard setbacks.

The appeal was allowed and the variance was authorized subject to conditions.

The appellant appealed the failure of the Township of Springwater to adopt a site-specific official plan amendment to permit residential development.

During a telephone conference call, the Tribunal was updated that a related appeal by the Ministry of Municipal Affairs and Housing had been withdrawn, clearing the path for this appeal.

The parties requested an extension to complete requisite studies, which could result in the appeal being withdrawn.

The Tribunal granted the extension and directed the appellant to report back by September 30, 2021.

Following a successful motion for summary judgment in a fraudulent conveyance action, the plaintiff sought costs on a substantial indemnity scale against the defendants and the intervenor.

The court noted the defendants' delay tactics, unfounded allegations of fraud, and lack of credibility.

The court awarded the plaintiff costs of $175,000 against the defendants and $30,000 against the intervenor, finding the amounts reasonable given the complexity introduced by the defendants' failed defenses.

Following a trial regarding reciprocal easements and commercial redevelopment, the court determined costs.

The plaintiffs achieved divided success, obtaining some but not all of the declaratory relief sought and failing to obtain a permanent injunction.

The court declined to make a distributive costs order, instead reducing the plaintiffs' partial indemnity costs by 50% to reflect their divided success and over-staffing, awarding them $638,804.86 against the Market Village defendants.

The Kennedy defendants were awarded $70,000 in partial indemnity costs against the plaintiffs.

The parties made written submissions regarding the costs of the appeal and a related motion for leave to adduce fresh evidence.

The Court of Appeal ordered no costs as between the respondent and the Nealon appellants.

The respondent was awarded costs of the appeal on a partial indemnity basis in the amount of $40,000, inclusive of disbursements and HST, against the Garber appellants.

The plaintiff vendor brought a motion for summary judgment against the defendant purchaser for failing to close a real estate transaction.

The defendant argued that the plaintiff misrepresented the zoning of the property and breached the agreement by refusing to grant further extensions.

The court found no genuine issue requiring a trial, noting the clear 'entire agreement' and 'as is' clauses in the Agreement of Purchase and Sale, and the defendant's own failure to properly investigate the zoning.

The court awarded the plaintiff damages for the loss of bargain and carrying costs, finding she had reasonably mitigated her damages by reselling the property.

The appellants appealed a trial judgment finding that a dock they constructed on Lake Simcoe constituted a private nuisance to the neighbouring respondent.

The trial judge had ordered a mandatory injunction for the dock's removal, punitive damages of $100,000, and substantial indemnity costs.

The Court of Appeal upheld the finding of nuisance and the mandatory injunction, noting the dock substantially and unreasonably interfered with the respondent's ability to use their boat.

The Court also upheld the punitive damages against the property owners (Garber) due to their refusal to remedy the nuisance.

However, the Court allowed the appeal in part by setting aside the punitive damages against the contractor (Nealon) and reducing the costs awarded against him to a partial indemnity scale, finding his conduct did not warrant such exceptional penalties.

The plaintiffs and defendants own contiguous commercial retail centres and share reciprocal easements for access and parking.

The defendants proposed a major redevelopment that would expand their building footprint onto lands subject to the plaintiffs' easement, eliminating hundreds of surface parking spaces.

The plaintiffs sought declarations and an injunction to prevent the development.

The Superior Court of Justice found that the proposed development would substantially interfere with the plaintiffs' easement rights and overburden the remaining shared parking.

The court granted specific declarations confirming the breach of the easements but declined to issue a permanent injunction, finding it unnecessary given existing structural safeguards.

This endorsement addresses the issue of costs following a successful application by the Town of Oakville and Oakville Hydro Electricity Distribution Inc. (Applicants) for a declaration that the Respondents' pool amenities encroached upon a hydro easement.

The Applicants sought costs on a partial indemnity scale totaling $77,782.87.

The Respondents argued for a reduction to a maximum of $50,000.

The court awarded the Applicants $50,000 in costs, finding a reduction warranted due to the Applicants' partial success on the underlying application (only one of two bases for relief was granted) and their unreasonable refusal to consent to legitimate adjournment requests.

The applicants sought a declaration and injunction compelling the respondents to remove pool amenities encroaching on a hydro easement.

The court found that the easement explicitly prohibited the erection of any building or structure, regardless of whether it caused substantial interference.

The respondents' arguments of proprietary estoppel and lack of substantial interference were rejected.

The application was granted, ordering the removal of the amenities and remediation of the easement.

The moving defendants brought a motion to compel answers to questions refused by the plaintiffs during examinations for discovery, including questions answered under Rule 34.12(2).

The court declined to make a blanket ruling deferring all Rule 34.12(2) answers to the trial judge, opting to rule on relevance for discovery purposes while leaving trial admissibility to the trial judge.

The court found that questions regarding past development applications and the plaintiffs' own redevelopment intentions were improperly refused and must be answered.

However, questions regarding the plaintiffs' current willingness to accept integration features, the substance of settlement discussions, and the plaintiffs' financial information were properly refused.

The court held that pleading the fact of settlement discussions to explain delay does not waive settlement privilege over the substance of those discussions.

The plaintiff and third party moved for contempt against the defendants for failing to remove a dock as ordered following a trial.

The defendants argued that the delay was due to the need for a Ministry of Natural Resources work permit and a pending appeal.

The court found that while the defendants improperly delayed applying for the permit while seeking a stay, they were justified in waiting for the permit before commencing demolition.

The court adjourned the contempt motion to allow time for the permit to be issued and the work to be completed, with leave to return if further delays occur.

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.

The property owners brought a motion seeking permission to file late appeals of their property assessments for the 2015, 2016, and 2017 taxation years.

The Assessment Review Board found it lacked jurisdiction to extend the time for the 2015 and 2016 appeals because the mandatory statutory precondition of a timely request for reconsideration had not been met.

However, because MPAC had inexplicably processed a 2017 request for reconsideration, the Board found the 2017 appeals were filed within the statutory timeframe and accepted them, while also creating deemed appeals for 2018.

The defendants were successful on a motion for security for costs against the foreign corporate plaintiff and sought partial indemnity costs of approximately $18,000.

The plaintiff argued for a reduced amount of $10,000, claiming divided success and excessive time spent.

The court rejected the plaintiff's arguments, finding the defendants were entirely successful and the delegation of work between junior and senior counsel was appropriate for the complex motion.

Applying the factors under Rule 57.01, the court fixed the defendants' costs at $15,000 all-inclusive.

This is a costs endorsement following a Rule 21 motion brought by Cams Atlas, LLC ("Cams") to dismiss counterclaims by Water Exchange, Inc. ("Water") and Tech Sonic International, Inc. ("Tech").

Cams' motion against Water was granted after Water conceded the point, but only after Cams had fully prepared.

Cams' motion against Tech was dismissed, as Tech's counterclaim was closely related to its defense.

The court found Tech entitled to costs for successfully defending the contentious part of the motion, while Cams was entitled to some costs against Water for the late concession.

The judge fixed costs, ordering Cams to pay Tech $16,000, inclusive of fees, disbursements, and HST, after considering the complexity, importance of issues, and reasonable expectations of the parties.