Mark A. Wiffen

The defendants were successful at trial and sought costs of $346,561.72 on a partial indemnity basis.

The plaintiff objected to the amounts claimed for examinations for discovery, senior counsel's hourly rate, and the cost of the defendants' expert report.

The court rejected the plaintiff's arguments regarding discovery and counsel rates, finding the $450 hourly rate for senior counsel reasonable.

However, the court reduced the disbursement for the expert report by $22,500 to reflect work attributable to an excluded portion of the report.

The court fixed the defendants' costs at $315,000 all-inclusive.

This is a costs endorsement on appeal from a Superior Court of Justice order.

The appellants appealed a decision and the Court of Appeal addressed the application of cost presumptions under the Court of Justice Act.

The court held that the statutory cost presumptions in s. 137.1(7) and (8) do not apply on appeal, as the statutory language does not expressly refer to costs on appeals.

However, the court exercised its discretion to apply the presumption for the motion costs and awarded the appellants costs on a full indemnity basis for the motion and on a partial indemnity basis for the appeal.

The plaintiff sought a declaration of beneficial ownership and transfer of title for a property, or alternatively, damages for unjust enrichment, claiming a written lease and a purchase agreement.

The defendants denied these claims, asserting the documents were fraudulently prepared by the plaintiff and that she was merely a tenant under a verbal agreement.

The court found the plaintiff's evidence lacked credibility and reliability, concluding that the documents supporting her claims were fraudulently created by her.

Both claims were dismissed.

The defendant brought a motion under section 137.1 of the Courts of Justice Act to dismiss a breach of contract action.

The plaintiff alleged that the defendant breached a settlement agreement by giving testimony before the Ontario Municipal Board regarding the environmental impact of the plaintiff's proposed development.

The motion judge dismissed the motion, finding that although the testimony constituted expression relating to a matter of public interest, the plaintiff had satisfied the merits and public interest hurdles under section 137.1(4).

The Court of Appeal allowed the appeal, holding that the plaintiff failed to meet its burden under section 137.1(4)(a) regarding substantial merit and that the motion judge erred in interpreting "substantial merit" as referring to the seriousness of the subject matter rather than the potential merits of the claim.

The Court also found insufficient evidence of damages to satisfy the public interest balancing under section 137.1(4)(b).

The applicant sought leave to appeal a Provincial Offences Appeal Court decision dismissing his appeal from a conviction for speeding.

The applicant was charged with speeding on Highway 2 in the Region of Durham, clocked at 107 km/h in a 70 km/h zone.

He was convicted at trial and again at a retrial after his first conviction was overturned due to a misapplication of the rule in R. v. W.(D.).

The motion judge granted leave to appeal on three grounds: (1) misapplication of the W.(D.) rule by the Justice of the Peace; (2) improper restriction of cross-examination regarding prior inconsistent testimony; and (3) failure to provide adequate assistance to a self-represented accused.

The appellant, Sikh Spiritual Centre Toronto, appealed a motion judge's decision refusing to set aside a consent order dated February 4, 2016 that enforced a settlement agreement between three not-for-profit charitable corporations operating Sikh temples.

The settlement concerned repayment of loaned monies.

The appellant argued the settlement was entered into without proper authority and was improvident.

The motion judge found the Director who authorized the settlement had proper authority from the Board of Directors and that the settlement was reasonable.

The Court of Appeal upheld the motion judge's decision, finding no palpable and overriding errors and declining to interfere with the discretionary costs award.

Three injured workers appealed convictions or acquittal reversals under section 149(2) of the Workplace Safety and Insurance Act, 1997, which makes it an offence to wilfully fail to inform the Workplace Safety and Insurance Board of a material change in circumstances affecting entitlement to benefits.

The Court of Appeal clarified the mens rea requirement for this offence, holding that the Crown must prove the accused knew of a material change, intended not to inform the Board, and either intended to receive unentitled benefits or foresaw such receipt as substantially certain.

The court restored one acquittal and ordered new trials for two convictions.

The plaintiff, Brand Name Marketing Inc., brought an action against Rogers Communications Inc. for breach of a non-disclosure agreement and breach of confidence.

The plaintiff alleged that it provided confidential marketing concepts to Rogers regarding a 'Pink Phone program' and a 'Call for the Cure program', which involved affinity marketing with a breast cancer charity.

The plaintiff claimed that Rogers misused this information to launch its own 'Pink Razr campaign' and sought over $14 million in damages.

The Superior Court of Justice dismissed the action, finding that the plaintiff could not enforce the NDA as it was not a party to it at the relevant time.

Furthermore, the court held that while certain financial projections were confidential, the general concept of a charitable donation tied to a product sale was public knowledge.

Ultimately, the court concluded that Rogers did not use the plaintiff's confidential information in designing or implementing the Pink Razr campaign, which was fundamentally different from the plaintiff's proposals.

The moving party, a religious corporation, brought a motion to set aside a consent order that enforced a settlement agreement regarding unpaid loans.

The moving party argued the settlement was executed by a rogue director without board authorization and that its former counsel consented to the order against instructions.

The court dismissed the motion, finding that the director had consulted the board and obtained approval, the counsel acted on valid instructions, and there was no material change in circumstances or clear injustice to warrant setting aside the final order.

The appellant appealed a trial judgment dismissing her claim for wrongful denial of a full-time position at a care centre.

The respondents brought motions for security for costs and access conditions to trial exhibits.

The court granted the appellant access to trial exhibits at her cost and in the presence of respondent's counsel.

The court also ordered security for costs of $20,000, finding the appeal frivolous and vexatious based on the appellant's conduct and insufficient evidence to challenge the trial judge's findings on both the limitation period and merits.

The respondents were awarded costs of $2,500 for their motion.

Trenchline Construction Inc. (TCI) brought a claim for $449,862.61 in "stand-by charges" against Trisura Guarantee Insurance Company (under a Labour & Material Payment Bond) and Unimac-United Management Corp. and Metrolinx (under a construction lien).

The court found that while TCI had a contractual entitlement to claim standby costs under the incorporated CCDC General Conditions, it failed to provide sufficient corroborating evidence to prove these costs were actually incurred.

The court also found TCI's "onsite" standby claim to be an attempt to inflate the claim, significantly detracting from the credibility of its principal witness.

Consequently, TCI's standby costs claim was denied in its entirety, both under the Bond and as lien rights.

The plaintiff/defendant by counterclaim, Lorne Rose Architect Inc., brought a motion for summary dismissal of the defendants'/plaintiffs' by counterclaim's counterclaim.

The counterclaim alleged breach of contract and negligence regarding architectural services, specifically failure to deliver timely drawings and inadequate coordination with engineers.

The court declined to grant summary judgment, citing the risk of duplicative proceedings and inconsistent findings of fact with the main action, where the same issues were raised in defence.

The motion was dismissed, and costs were awarded to the responding parties.

The defendant, Marc Cohodes, brought a motion under s. 137.1 of the Courts of Justice Act to dismiss a libel action commenced by the plaintiff, Mark Thompson.

The alleged libel imputed fraud against Thompson during his prior employment as a junior lawyer.

The court found that the expression related to a matter of public interest.

However, the plaintiff established grounds to believe his claim had substantial merit, that the defendant had no valid defence (justification or fair comment), and that the harm suffered by the plaintiff was sufficiently serious to outweigh the public interest in protecting the expression.

The motion to dismiss was denied.

The appellant, Econo Petroleum Inc., appealed a Small Claims Court decision ordering it to pay unpaid commissions to 2081430 Ontario Inc. and to return a security deposit to Vladimir Gorbatchevski.

The Divisional Court dismissed the appeal, finding that the trial judge made no palpable and overriding errors in concluding that an informal agreement existed for the payment of commissions, that no set-off damages were owed for lack of notice of termination, and that Econo was responsible for returning the security deposit.

Costs were awarded to the respondents.

The appellant appealed a Small Claims Court decision ordering him to pay $25,000 for the construction of a pool.

The central issue was whether a $50,000 payment made by the appellant was a deposit for the pool project or payment for past construction projects.

The Divisional Court applied the palpable and overriding error standard of review and found that the trial judge's factual findings were supported by the evidence.

The appeal was dismissed with costs awarded to the respondents.

The moving parties brought a motion for leave to appeal a final order as to costs made by the motion judge following a summary judgment motion regarding a continuing trespass.

The motion judge had awarded the responding parties elevated costs of $28,000, finding the moving parties' conduct to be outrageous.

The Divisional Court dismissed the motion for leave to appeal, finding that the motion judge did not err in principle, misapprehend significant facts, or act in a non-judicial manner in awarding elevated costs.

The successful respondent on a motion for leave to appeal an OMB decision sought costs on a substantial indemnity basis, or alternatively, partial indemnity costs.

The court denied substantial indemnity costs, finding the appellants' conduct did not warrant an elevated scale.

However, the court rejected the appellants' argument that costs should be limited to a standard $3,500, noting the appellants had raised 34 errors of law.

The court awarded partial indemnity costs of $20,858.67 to the respondent.

Metrolinx, the owner of a construction project, moved to post the agreed basic and notice holdback amounts into court to vacate several subtrade liens and have the actions against it dismissed.

The subtrades consented to the posting but argued Metrolinx should also be required to post security for prejudgment interest and pay their costs.

The Master held that holdback is a retention obligation, not a payment obligation, and therefore does not attract prejudgment interest under the Courts of Justice Act.

However, the Master awarded partial indemnity costs to the subtrades, finding that Metrolinx unnecessarily lengthened the proceedings by aggressively defending the entirety of the subtrade claims instead of posting the holdback early in the litigation.

The applicants sought leave to appeal a decision of the Ontario Municipal Board, which had dismissed their appeal from a city council decision denying their proposed 91-lot residential development in a coastal wetland area.

The applicants alleged numerous errors of law, including the Board's application of the 2014 Provincial Policy Statement instead of the 2005 version, its interpretation of 'negative impacts' and 'limited residential development', and procedural fairness issues regarding the admission of expert evidence.

The Divisional Court dismissed the application for leave to appeal, finding that the Board correctly applied the 2014 PPS, reasonably interpreted the planning policies, and that any procedural errors regarding expert evidence did not meet the test for granting leave.

The appellants appealed an order dismissing their motion to set aside two prior trial management orders.

The prior orders were made by a judge who later recused himself from the trial because the respondent's counsel, who was to testify as a witness, was a deputy judge under the judge's administrative responsibility.

The appellants argued the recusal retroactively tainted the prior orders due to a reasonable apprehension of bias.

The Divisional Court held that while the motion judge erred in applying issue estoppel, the result was correct.

The court found that the judge's subsequent recusal out of an abundance of caution had no retroactive impact on his previous orders, as the conflict only arose when counsel became a witness.

The appeal was dismissed.