Margaret A. Hoy

The defendants moved to strike or dismiss a civil action alleging malicious prosecution, negligent investigation, and Charter breaches arising from a police detention following an assault investigation.

The plaintiffs commenced their action more than two years after the incident but argued that the limitation period should be extended under the discoverability rule due to alleged ongoing investigations involving police and a regulatory authority.

The court held that the plaintiffs failed to produce evidence linking later investigations to the incident giving rise to the claim or demonstrating that the claim could not reasonably have been discovered earlier.

Applying the two‑year limitation period under the Limitations Act, 2002, the court found the action was commenced out of time.

The defendants’ motion was granted and the action dismissed.

Competing applications were brought under the Substitute Decisions Act, 1992 for guardianship of the person and property of an incapable adult with cerebral palsy and significant cognitive impairment.

The niece sought appointment as guardian while the incapable person’s sister filed a competing application.

Although both parties had historically assisted with the incapable person’s care and finances, the court found the relationship between the parties had irreparably broken down.

Evidence showed the respondent’s husband had engaged in sexual contact with the incapable person and the respondent attempted to conceal the incident.

The court held that this circumstance made the respondent unsuitable as guardian and that the applicant represented the reasonable alternative in the incapable person’s best interests.

Following an earlier endorsement finding negligence in the prosecution of the action and ending the proceeding against the defendants, the defendants sought costs of $5,535.87.

The court considered the conduct of the plaintiff and counsel, including procedural errors and inadequate explanation for improperly placing the matter on the trial list.

The court also considered settlement correspondence regarding costs exchanged after the earlier endorsement.

While finding the plaintiff’s conduct warranted sanction, the court held the defendants’ request for more than double their earlier settlement proposal was excessive.

Costs were awarded to the defendants in the reduced amount of $2,500 inclusive.

An employee brought a wrongful dismissal action after being terminated for alleged anti‑Semitic remarks about the employer’s owners.

The employer asserted just cause based on reports from an undercover investigator and later relied on after‑acquired evidence.

The court found the investigator’s evidence unreliable and determined the employer had failed to conduct an adequate investigation or prove the alleged misconduct on a balance of probabilities.

Just cause was not established.

The court awarded 12 months’ reasonable notice damages and dismissed claims for aggravated, punitive, and Wallace damages.

The plaintiff moved under Rule 37.14 of the Rules of Civil Procedure to set aside a registrar’s order dismissing the action as abandoned and to restore the action.

The proceeding had been commenced by notice of action but no statement of claim was filed within the required 30 days and the notice of action had been served without the statement of claim contrary to Rule 14.03.

The court held that the plaintiff failed to provide a satisfactory explanation for the extensive delay, including a two‑year delay after learning of the dismissal order before bringing the motion.

Applying the factors governing restoration of dismissed actions, the court found inadequate explanation of delay, insufficient evidence of inadvertence, and failure to bring the motion promptly.

The request to add individual police officers as defendants was also barred by the limitation period.

The appellants appealed a trial judgment regarding a collateral mortgage.

The Court of Appeal dismissed the appeal, agreeing with the trial judge that the limitation period did not begin to run until a demand was made.

Costs were awarded to the respondent in the amount of $7,500.

Following an appeal with mixed success, the court issued a brief endorsement ordering that no costs be awarded to either party.

Following a motion to change a child support order, the court determined the issue of costs.

The moving party was partially successful in obtaining an adjustment to child support based on increased income and a three‑year retroactive period, but failed to obtain the full relief sought and several claimed s. 7 expenses were disallowed due to lack of documentation or improper characterization.

The responding party argued the moving party had largely failed and sought costs or, alternatively, no order as to costs.

The court held the moving party was the successful party overall but reduced costs due to disclosure deficiencies and excessive claims.

Costs of $2,500 inclusive of HST were awarded to the moving party.

The employer appealed a Small Claims Court judgment awarding the plaintiff $25,000 for wrongful dismissal.

The plaintiff, a casino dealer, was terminated after an altercation with a co-worker where he used profanity, followed by insubordination during the investigative suspension.

The Divisional Court allowed the appeal and ordered a new trial on liability, finding that the trial judge failed to apply the McKinley proportionality test and misapprehended material evidence regarding the plaintiff's prior disciplinary history.

The court upheld the trial judge's assessment of damages at eight months' notice.

The appellant, a former police officer, sued for malicious prosecution and negligent investigation after criminal charges against him were withdrawn pursuant to a negotiated resolution agreement requiring his resignation.

The motion judge granted summary judgment dismissing the action, finding the criminal proceedings did not terminate in the appellant's favour.

The Court of Appeal dismissed the appeal, upholding the motion judge's finding that the withdrawal of charges was a bona fide quid pro quo for the appellant's resignation, not an abandonment of prosecution or an abuse of power.

Following a successful foreclosure claim on a mortgage in default, the plaintiff sought costs on a substantial indemnity basis pursuant to the mortgage terms.

The plaintiff claimed $47,075 in legal fees, while the defendant argued for approximately $21,000 on a partial indemnity basis and challenged several bill of costs entries.

The court considered the complexity of the litigation, including limitation issues and the time gap between the debt, mortgage, and enforcement proceedings.

Although the court accepted that substantial indemnity costs were appropriate, it found portions of counsel’s preparation time for discovery and trial excessive.

The court fixed costs at $35,000 on a substantial indemnity basis plus disbursements and HST.

The applicant brought a motion to change a 1998 child support order seeking retroactive adjustment of table child support and contribution toward post-secondary and other section 7 expenses.

Applying the principles in D.B.S. regarding retroactive support, the court held that effective notice occurred in March 2011 and, absent blameworthy conduct, retroactive support could only extend three years back to March 2008.

Because one child was no longer a child of the marriage at the time of notice and the motion, retroactive support was limited to the remaining child.

The court calculated retroactive table support arrears and determined reasonable post-secondary education expenses, requiring the child to contribute and allocating the balance proportionally between the parents.

The respondent was ordered to pay arrears of table support and section 7 expenses in instalments.

Following a wrongful dismissal action in which the plaintiff obtained damages, the court determined the appropriate costs award.

Although the action proceeded under the ordinary procedure, the damages fell within the range of the Simplified Procedure and were only slightly above the Small Claims Court limit.

The plaintiff was unsuccessful on a claim for bad faith damages, but the court found that commencing the action under the ordinary procedure was not unreasonable.

The court held that the plaintiff achieved modest success and was entitled to costs, but found the claimed partial indemnity costs disproportionate to the recovery.

Costs were fixed at a reduced amount.

Following a motion for summary judgment in an employment dispute, the court had dismissed several tort and Charter claims but allowed the claims for constructive dismissal and wrongful dismissal to proceed to trial.

The parties disputed entitlement to costs of the motion.

The court held that the motion resulted in mixed success but considered a written offer to settle made under Rule 49 when exercising its discretion under Rule 49.13 of the Rules of Civil Procedure.

Although the technical cost consequences of Rule 49.10 did not apply to a motion decision, the offer was relevant to costs.

The moving party was awarded partial indemnity costs from the date of the offer to settle and certain additional costs relating to adjournments and abandoned motions.

The plaintiff brought a wrongful dismissal action following termination without cause after more than eight years of employment as a quality assurance analyst.

The court determined the appropriate reasonable notice period by considering age, length of service, nature of employment, and compensation structure including overtime, bonus, benefits, and pension contributions.

A nine‑month notice period was found appropriate and damages were calculated accordingly, subject to deductions for amounts already paid and mitigation earnings.

The plaintiff also sought aggravated or bad faith damages based on the employer’s conduct surrounding the dismissal.

The court held that while the employer’s conduct was insensitive and unprofessional, it did not rise to the level of egregious or bad faith misconduct required under the governing jurisprudence.

Following the dismissal of an action for malicious prosecution and negligent investigation on summary judgment, the successful defendants sought substantial indemnity costs exceeding $85,000.

The court held that substantial indemnity costs were not warranted because the dismissal of the action turned on the plaintiff’s inability to establish a required element of the torts—namely that the criminal proceedings terminated in his favour—rather than any judicial determination that the allegations of malice were baseless.

Although the plaintiff’s counsel failed to comply with a court‑ordered timetable for motion materials, the delay caused no prejudice and did not justify elevated costs.

Applying the factors under Rule 57.01 of the Rules of Civil Procedure, the court fixed partial indemnity costs for the motion and action together.

The plaintiff was ordered to pay $62,240.49 inclusive of taxes and disbursements.

The plaintiff, a former police officer, brought an action for malicious prosecution and negligent investigation after criminal charges against him were withdrawn following his resignation from the police service pursuant to a negotiated resolution with the Crown.

The defendants, including several police officers and the police services board, moved for summary judgment.

The court held that one essential element of both torts is that the criminal proceedings must have terminated in favour of the plaintiff.

Because the charges were withdrawn as part of a bona fide resolution agreement requiring the plaintiff’s resignation, the termination was not legally considered to be in his favour.

As a result, the plaintiff could not establish a necessary element of either tort and the action had no reasonable prospect of success.

The plaintiff sought foreclosure on a mortgage securing loans advanced to her spouse and his son, who were registered owners of the mortgaged property.

One defendant disputed executing the mortgage and argued that any enforcement was barred by the limitation period under the Real Property Limitations Act.

The court found on a balance of probabilities that the defendant had signed the mortgage and that the document was valid and enforceable.

Interpreting the mortgage as collateral security with a fixed term and demand feature, the court held that the limitation period had not expired because demand was made in 2008 prior to maturity of the mortgage term.

The court granted foreclosure and possession of the mortgaged property.

Following dismissal of the plaintiff’s employment-related claim under the Simplified Procedure, the court determined costs.

The defendant sought costs based on the plaintiff’s litigation conduct, including refusal to consent to a pleading amendment, late service of materials, failure to comply with procedural timelines, and conduct that caused adjournment of the trial.

The court considered the discretion under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, along with the parties’ settlement offers under Rule 49.

The court found the plaintiff’s conduct lengthened the proceedings and warranted costs above partial indemnity.

Costs were fixed in favour of the defendant in the amount of $38,000 inclusive of disbursements and HST.

The appellant appealed an order granting partial summary judgment to the respondent, which dismissed the appellant's claims for breach of fiduciary duty, an accounting, and redemption of shares.

The Court of Appeal upheld the motion judge's findings that there was no fiduciary relationship in the commercial agreement, the claim for an accounting could not stand alone without the fiduciary duty claim, and the appellant had no right to redeem the shares.

The appeal was dismissed with costs fixed at $10,000.