Lionel J. Tupman

Following the dismissal of a defendant’s summary judgment motion, the successful plaintiffs sought substantial indemnity costs exceeding $85,000.

The moving party argued the amount was excessive, disproportionate to the damages claimed, and that substantial indemnity was unwarranted, also challenging inclusion of an expert report cost that the court previously found unhelpful.

The court confirmed that substantial indemnity costs are generally reserved for Rule 49 settlement consequences or reprehensible conduct, neither of which was present.

Applying the Rule 57.01 factors and proportionality, the court awarded partial indemnity costs and removed the expert report expense from recoverable disbursements.

Competing motions arose regarding funding the care of an incapable elderly woman under the Substitute Decisions Act.

One child sought to increase a line of credit secured against the incapable person’s Toronto condominium to fund ongoing care, while other siblings sought an order to sell a Florida condominium allegedly jointly owned with one sibling.

The court held that the urgent need to maintain care justified extending the line of credit, while disputes concerning ownership, expenses, occupation rent, and tax consequences relating to the Florida property required further evidentiary determination.

A bifurcated hearing was ordered to resolve those issues before determining whether the Florida property should be sold.

The applicants sought judicial review of a school board's decision to close an elementary school due to declining enrollment.

The applicants argued the decision was procedurally unfair and that the board trustees exhibited a closed mind, raising a reasonable apprehension of bias.

The Divisional Court dismissed the application, finding that the board substantially complied with its accommodation review policy, provided adequate disclosure, and afforded the community a meaningful opportunity to participate.

The court also held that the trustees' conduct, viewed objectively, did not meet the 'closed mind' test for bias in the context of a policy-driven decision by elected officials.

The defendants moved to discharge a Certificate of Pending Litigation registered by the plaintiff over land in Mississauga, arguing that the plaintiff had no interest in the land, that there was material non‑disclosure in the ex parte application for the CPL, and that the plaintiff delayed unreasonably in seeking the certificate.

The plaintiff asserted that the parties had long contemplated the transfer of land for the construction of a Greek Orthodox church pursuant to agreements dating back to 1980.

The court held that the totality of the evidence demonstrated a reasonable claim to an interest in the land and a triable issue supporting the CPL.

The court further found that the plaintiff had provided sufficient disclosure on the ex parte motion and that the delay in seeking the CPL was reasonably explained.

Balancing the equities and the absence of demonstrated hardship to the defendants, the court concluded that maintaining the CPL was just.

The plaintiff sought leave under Rule 48.04 of the Rules of Civil Procedure to bring a summary judgment motion to dismiss the defendants’ counterclaim after the action had already been set down for trial.

The plaintiff also requested that the defendants’ affidavit evidence be struck because the affiant had not been cross‑examined.

The court declined to strike the affidavit, finding no unjustified refusal to attend for cross‑examination.

Applying principles of proportionality and case management, the court held that a summary judgment motion would not be the most efficient procedure, risked duplicative proceedings and inconsistent factual findings, and could delay the scheduled trial.

Leave to bring the summary judgment motion was therefore refused.

Following a motion in which the defendants sought to dismiss a negligence action against a firefighter as statute‑barred and for failing to disclose a reasonable cause of action, the court dismissed the defendants’ motion and granted the plaintiffs leave to amend their statement of claim.

The plaintiffs subsequently sought costs on a partial indemnity basis.

The defendants argued the plaintiffs should not recover costs because they could have avoided expense by not opposing the motion.

The court rejected this submission, holding that the plaintiffs were entitled to resist the motion and defend their right to challenge the statutory defence.

Costs were awarded to the plaintiffs with reductions for excessive disbursements and to align with reasonable expectations of the unsuccessful party.

Family members and the estate of a deceased driver brought a negligence action arising from a fatal collision with a fire truck driven by a municipal firefighter responding to an emergency.

The defendants moved under Rule 21 to dismiss the claim against the firefighter, relying on statutory immunity under s. 74 of the Fire Prevention and Protection Act, 1997.

The plaintiffs sought leave to amend their statement of claim and argued that the statutory immunity constituted a defence rather than negating the existence of a cause of action.

The court held that the statutory protection for firefighters acting in good faith operates as a defence to be proven by the defendant and does not render the negligence claim legally untenable at the pleading stage.

Because it was not plain and obvious that the claim could not succeed, the motion to dismiss was refused.