Mark Harris Arnold

The parties settled a wrongful dismissal action on the eve of trial for $75,000 plus costs.

When the defendants failed to pay, the plaintiff successfully moved for judgment under Rule 49.04.

The defendants appealed, arguing the settlement lacked essential terms regarding the allocation of damages and should be voided on public policy grounds due to the plaintiff's litigation tactics.

The Court of Appeal dismissed the appeal, finding the settlement terms were clear and there was no basis to interfere with the motion judge's discretion to enforce it.

The plaintiff's cross-appeal seeking substantial indemnity costs was also dismissed.

The applicant condominium corporation sought to amend its Declaration under section 109 of the Condominium Act, 1998, to address issues concerning wood-burning fireplaces and chimney flues.

Specifically, it requested amendments to designate chimney flues as exclusive use common elements, to shift the responsibility for their maintenance and repair from the corporation to the unit owners, and to redefine unit boundaries to include the entire length of the chimney flues.

The court granted the order to amend the Declaration to specify the chimney flues as exclusive use common elements, finding an error in the original Declaration's omission to specify such elements.

However, the court dismissed the requests to alter the maintenance and repair obligations, concluding there was no error or inconsistency in the existing mutual duties, and rejected the proposed redefinition of unit boundaries, finding the current description unambiguous.

The appellant appealed the dismissal of her application under the Condominium Act challenging the respondent condominium corporation's requirement that she renovate her unit to a luxury standard as a condition of remaining in the hotel rental pool.

The appellant also objected to the removal of her unit from the pool when she refused the renovations.

The Court of Appeal upheld the lower court's dismissal, finding no oppressive conduct by the respondent and confirming that the appellant could not remain in the pool without meeting the luxury standard while having the option to rent or use the unit residentially.

The applicant condominium corporation sought to set aside an arbitration award that dismissed its claim against the respondent unit owners for allegedly breaching a Section 98 Agreement regarding renovations.

The applicant argued the award was obtained by fraud based on new evidence from former board members.

The court dismissed the application, finding the applicant failed to prove fraud, did not act with due diligence, and the new evidence would not have changed the outcome.

The court also denied leave to appeal, concluding the arbitrator's interpretation of the agreement was a question of mixed fact and law, and any legal errors would not significantly affect the parties' rights.

A condominium corporation issued a clean status certificate to the respondent when he purchased a unit in 2013.

When the respondent requested a new status certificate in 2016 to market the unit for sale, the corporation noted that the unit layout had been altered without Board consent, contrary to the declaration.

The respondent sought a declaration that the corporation was estopped from noting such matters in the subsequent certificate.

The application judge granted the relief sought, finding the corporation bound by its earlier clean certificate.

The Court of Appeal allowed the appeal, holding that while the corporation is bound by its earlier certificate as against the original purchaser, it is not estopped from disclosing newly discovered matters in subsequent certificates.

The corporation's obligation to disclose material information to prospective purchasers overrides any estoppel argument.

The applicant, a former unit owner, brought an application under sections 119 and 135 of the Condominium Act, 1998, alleging oppressive conduct and non-compliance with the condominium declaration by the respondent corporation regarding unit renovations.

The applicant had sold her unit prior to commencing the application.

The court dismissed the application, primarily finding that the applicant lacked standing as she was no longer an "owner" as defined by the Condominium Act at the time the application was brought.

The court also found no oppressive conduct or unfair disregard of the applicant's interests, and that the alleged non-compliance with the declaration regarding architect/engineer certificates for decorative renovations did not amount to a breach of contract or warrant a remedy.

This is a costs endorsement following an appeal and cross-appeal in a civil matter.

The respondents (Jarbeaus) were successful on the cross-appeal while the appellant (McLean) was unsuccessful on the appeal.

The court awarded costs to the Jarbeaus in the amount of $75,000, allocated as $18,000 to the cross-appeal and $57,000 to the appeal, inclusive of disbursements and applicable taxes.

The court declined to fix prejudgment interest or vary the trial costs award of $231,000.

The plaintiff, EcoConcepts Management Services Inc., and the third parties (former board members) each moved for summary judgment against Peel Condominium Corporation No. 260.

The dispute arose from the termination of EcoConcepts' management contract, which included a highly contentious termination clause requiring payment for the remainder of a five-year term.

Allegations of fabricated documents, improper board authorization, and bad faith were central to the defendant's counterclaim and third-party claim for contribution and indemnity.

The court dismissed both motions for summary judgment, concluding that genuine issues of material fact, particularly concerning credibility and the circumstances surrounding the 2013 Agreement's authorization, required a full trial for a fair and just determination.

The respondents purchased a defective new home from a builder and hired a negligent lawyer who failed to sue the engineer within the limitation period, incorrectly advising them they had no cause of action against the engineer.

After settling their first action, the respondents sued the lawyer for negligence.

The trial judge admitted the lawyer's negligence but characterized both the jury's damage assessments (cost to repair at $433,000 and diminution in value at $265,000) as perverse, awarded judgment for the lesser amount of $190,000 (after deducting the settlement amount), and significantly reduced the respondents' costs despite them bettering their settlement offer.

The Court of Appeal allowed the cross-appeal, finding the jury's assessments were not perverse, that damages should be awarded on a cost-to-repair basis at $433,000 without deducting the settlement amount, and that the respondents were entitled to substantial indemnity costs under Rule 49.10.

The plaintiff condominium corporation sued the developer and vendor for negligence and breach of warranty regarding HVAC system deficiencies.

The defendants and third parties moved for summary judgment, arguing the claim was statute-barred by the limitation period.

The court found a genuine issue requiring trial due to insufficient explanatory expert evidence regarding discoverability of the systemic defect versus localized leaks.

The motion for summary judgment was dismissed.

The defendant York Medical Group moved for security for costs against the plaintiff Proxema Ltd. under Rule 56.01(1)(d) of the Rules of Civil Procedure, requiring leave under s. 67(2) of the Construction Lien Act.

The court granted leave, finding the motion necessary due to Proxema's precarious financial position and its role as a nominal plaintiff pursuing litigation for the benefit of solvent subtrades.

The court determined that Proxema was a "shell corporation" with insufficient assets to cover a costs award.

Balancing the interests of preventing risk-free litigation by insolvent plaintiffs and avoiding prohibitive orders, and considering the existence of a counterclaim, the court ordered Proxema to pay $50,000 into court as security for costs, drawing an analogy to the $50,000 limit in s. 44(1)(d) of the Construction Lien Act for vacating a lien.

Following a jury trial in a solicitor's negligence action where the plaintiffs were awarded $190,000, the court determined the issue of costs.

Although the plaintiffs beat their offer to settle, the court departed from the prima facie rule of substantial indemnity costs due to the improper conduct of plaintiffs' counsel and the perverse nature of the jury's damages findings.

Applying the principle of proportionality under Rule 1.1, the court significantly reduced the plaintiffs' costs claim from $237,535.25 to $129,316 on a partial indemnity scale.

The appellant commenced a negligence action against the respondent dentists for substandard dental implant procedures.

The respondents successfully moved for summary judgment, arguing the action was statute-barred under the Limitations Act, 2002.

On appeal, the appellant argued the motion judge erred in applying the discoverability test.

The Court of Appeal dismissed the appeal, finding the claim was discoverable when the appellant's new dentist explained the nature of the problem and advised he would have conducted the procedure differently, which occurred more than two years before the action was commenced.

Following summary judgment dismissing a dental malpractice action on limitation grounds, the court determined the defendants' entitlement to costs.

Applying the Rule 57.01 factors and the overriding principle of reasonableness, the court held the unsuccessful plaintiff should pay costs on a partial indemnity basis.

Although the defendants sought $25,000 all inclusive, the court reduced the amount in light of access to justice concerns and the plaintiff's modest means.

Costs were fixed at $20,000 all inclusive.

The plaintiff, a Canadian citizen residing in Ontario, sued the defendant, an Iranian national, for damages arising from his alleged abduction and torture in Iran.

The defendant brought a motion to stay the proceedings on the basis of forum non conveniens, arguing England was the more appropriate forum.

The motion judge dismissed the motion.

On appeal, the Court of Appeal found the motion judge made factual errors regarding the defendant's ability to enter Canada and the procedural advantages of litigating in England.

The Court concluded that England was clearly the more appropriate forum, as the defendant had no connection to Ontario, both parties had connections to England, and most witnesses resided outside Canada.

The appeal was allowed and the Ontario action was stayed.

The defendants moved to remove the plaintiffs' law firm from the record in a commercial landlord-tenant dispute.

The defendants argued the firm previously acted for the defendant landlord on the purchase of the property, that a partner of the firm would be a witness, and that the firm was breaching its duty of loyalty.

The court dismissed the motion, finding that the partner was unlikely to have relevant evidence regarding the accounting issues in dispute.

Furthermore, because there was no risk of disclosing confidential information and the firm was not attacking its own prior work or changing sides on a matter central to the previous retainer, the duty of loyalty was not breached.

The defendants moved for summary judgment dismissing a dental malpractice action on the basis that the claims were commenced outside the two-year limitation period under the Limitations Act, 2002.

The court held that discoverability turned on when a reasonable person in the plaintiff's position knew or ought to have known the material facts necessary to allege negligence, not when formal expert reports were later obtained.

On the evidence, including the plaintiff's ongoing objectively unsatisfactory outcome and a December 13, 2011 discussion with a subsequent treating dentist explaining that the procedure should have been done differently, the court found the claims were discoverable no later than that date.

Because the actions were not commenced until January 2014, they were statute-barred and summary judgment was granted dismissing the action.

The respondents on an appeal brought a motion for security for costs against the foreign appellant, who was appealing the dismissal of his forum non conveniens motion in an action for damages related to torture in Iran.

The court dismissed the motion, finding that the appeal was not frivolous and vexatious under Rule 61.06(1)(a), and that there was no 'other good reason' to order security under Rule 61.06(1)(c), noting the general policy against imposing security for costs on foreign defendants forced to defend themselves in Ontario.

The defendant brought a motion requesting the Ontario court decline jurisdiction on the basis of forum non conveniens and permit the action to proceed in England.

The claim involved allegations of kidnapping, false imprisonment, assault, torture and threats arising from events in Iran, with plaintiffs residing in Ontario and the defendant asserting stronger ties to England.

Applying the framework from Club Resorts Ltd. v. Van Breda, the court considered comparative convenience, location of witnesses, ability to participate in proceedings, applicable law, and potential procedural advantages.

The court found the evidence inconclusive regarding the defendant’s ability to attend proceedings in either jurisdiction and held the defendant failed to establish that England was clearly the more appropriate forum.

The motion was therefore dismissed.

The court provided reasons for declining to award costs following a consent motion to set aside a default judgment.

The moving defendant established that the statement of claim had not come to his attention and that there had been no personal service, despite a prior order validating service that allowed the plaintiffs to obtain default judgment.

The court held that where a default judgment is irregularly obtained and the defendant had no notice of the proceeding, the judgment must be set aside ex debito justiciae and the defendant should not be required to pay costs.

The court further found the plaintiffs should not recover costs because they continued to oppose the motion despite evidence demonstrating the judgment would inevitably be set aside.

The court also reconsidered an earlier direction awarding costs thrown away and concluded that such costs should not be imposed where the defendant had not actually defaulted due to lack of effective service.