Martin P. Forget

This is a costs endorsement following a trial where the defendant successfully dismissed the plaintiff's action regarding a furnace oil leak.

The court assessed the defendant's partial indemnity costs, considering factors under Rule 57.01, including the principle of indemnity, the complexity of the proceeding, and the conduct of the parties.

The court found the defendant's costs reasonable, making adjustments for a previously dismissed motion and a clerk's hourly rate, ultimately ordering the plaintiff to pay $98,696.65.

The moving parties sought leave to appeal an order dated December 17, 2021.

The Divisional Court dismissed the motion for leave to appeal.

As no costs outlines were filed by the parties, the court made no order as to costs.

The plaintiff, Patrick Lyng, sued Ontario Place Corporation under the Occupiers' Liability Act for a serious knee injury sustained after a concert.

The injury occurred when he fell down a wet, grassy hill after a pedestrian bridge, the shortest route to the Go Station, was closed.

The court found Ontario Place Corporation 75% liable for failing to take reasonable care by not providing adequate warnings or barriers for the known hazardous hill, especially given the wet conditions and the presence of intoxicated patrons.

The plaintiff was found 25% contributorily negligent for jumping down the hill while intoxicated and wearing flip-flops.

The court awarded damages for non-pecuniary loss, past income loss, and future loss of competitive advantage, totaling $131,525.41 before prejudgment interest, reduced by the plaintiff's contributory negligence.

The appellants appealed the dismissal of their action for delay by a motion judge, who had also dismissed their motion to extend the timetable.

The action, commenced in 2014, faced significant delays, primarily due to the appellants' failure to obtain written consent from the City of Ottawa (to whom the action was subrogated under the WSIA) for several years.

The Court of Appeal upheld the motion judge's decision, finding that the appellants failed to provide an acceptable explanation for the inordinate delay and did not rebut the presumption of prejudice to the respondents, given the lack of progress in the litigation.

The plaintiff's insurer brought a subrogated claim for damages resulting from a heating oil leak that required the demolition and reconstruction of the plaintiff's home.

The plaintiff alleged the defendant's oil burner technician negligently failed to replace a spin-on filter during an annual maintenance inspection.

The court admitted the plaintiff's expert evidence despite procedural defects, finding no prejudice to the defendant.

However, the court dismissed the action, concluding that the applicable standard of care was compliance with the Ontario Installation Code for Oil-Burning Equipment, which made filter replacement optional.

The technician had inspected the filter and found it in good condition, thereby meeting the standard of care.

The applicant abandoned their application for judicial review.

The respondent sought costs of $35,000 on a substantial indemnity basis or $25,000 on a partial indemnity basis.

The Divisional Court found the requested amounts to be far in excess of what is normally awarded in such cases and fixed costs at $10,000 all-inclusive, payable by the applicant to the respondent.

The plaintiff brought a motion on the eve of trial to remove the defendant's lead counsel of record, alleging that the defence lawyer improperly used Summonses to Witness to obtain pre-trial disclosure of confidential medical records.

The plaintiff argued that the cover letters accompanying the summonses coerced witnesses into providing documents before trial to avoid attending court during the COVID-19 pandemic.

The court dismissed the motion, finding that a reasonably informed member of the public, reading the summons and cover letter as a whole, would not interpret them as an attempt to obtain improper pre-trial discovery.

The plaintiff's alternative request to quash the summonses was reserved to the trial judge.

The defendants in a medical malpractice action brought a motion for the production of documents from the plaintiffs' lawyer's file prior to cross-examinations on affidavits.

The affidavits were filed in support of the plaintiffs' pending motion to extend the time to set the action down for trial.

The defendants argued the plaintiffs waived privilege by referring to the lawyer's steps to advance the litigation.

The court found a limited waiver of litigation privilege regarding the fact and timing of the lawyer's communications with medical experts, but held that the plaintiffs were not required to produce the corroborating documents prior to the cross-examination.

The motion was largely dismissed, with the plaintiffs ordered only to have redacted corroborating documents available at the cross-examination.

The appellants appealed a jury verdict dismissing their claim against their home insurer following a fire that destroyed their house and its contents.

The insurer denied coverage on the basis that the appellants failed to report a material change in risk (using space heaters instead of a wood stove) and made wilfully false statements in their Proof of Loss.

The Court of Appeal found errors in the trial judge's instructions regarding the material change in risk, but upheld the dismissal of the action because the jury's finding of 39 wilfully false statements vitiated the claim.

The court also upheld the refusal to grant relief from forfeiture due to the appellants' unreasonable conduct.

However, the court allowed the costs appeal, reducing the trial costs awarded to the insurer from $616,843.27 on a substantial indemnity basis to $430,000 on a partial indemnity basis, finding the appellants' conduct in pursuing bad faith claims was not reprehensible enough to warrant an elevated scale.

This decision addresses costs arising from a successful interlocutory injunction motion brought by Wayne and Liana Gendron against the City of Kawartha Lakes.

The Gendrons sought substantial indemnity costs, while TD Bank, a non-party, also requested costs.

The City opposed both requests.

The court awarded partial indemnity costs to the Gendrons, finding the City's opposition to the underlying injunction motion to be without merit.

TD Bank's request for costs was denied, as it was a non-party with a mere "watching brief" whose counsel's attendance added nothing to the argument.

This endorsement addresses the costs of two successful motions brought by the plaintiffs, Barry Picov and Picov Farms Ltd. The first motion sought to amend their Statement of Claim to substitute Robar Residence Corporation as plaintiff, and the second sought to set aside an ex parte costs order against them in favour of Genserve Systems Inc. The court awarded partial indemnity costs to the plaintiffs for both aspects of their motion, finding that while the plaintiffs' counsel bore some responsibility for the initial error and evidential record, the defendants' opposition was not entirely justified, particularly Genserve's stance on setting aside the ex parte order.

Total costs of $19,689 were awarded to the plaintiffs, apportioned among the defendants.

The Gendrons moved for an interlocutory injunction to prevent the City of Kawartha Lakes from selling their home, which was subject to a priority lien under the Environmental Protection Act.

The City opposed, arguing estoppel, res judicata, failure to meet the injunction test, and lack of an undertaking for damages.

The court granted the prohibitive injunction, finding serious issues to be tried regarding the lien's validity and amount, irreparable harm to the Gendrons and TD Bank, and the balance of convenience favoring the Gendrons.

The court also ordered priority for the underlying motions.

The plaintiffs brought a motion to amend their Statement of Claim to substitute a new corporate entity as the plaintiff, having mistakenly named the former property owners instead of the actual owner at the time of the fire loss.

The defendants opposed, arguing the limitation period had expired.

The court granted the amendment, finding it was a true case of misnomer and the defendants suffered no non-compensable prejudice.

The court also set aside an ex parte costs order previously made against the plaintiffs, finding their counsel's failure to attend the motion was due to an honest misunderstanding.

The appellant, a homeowner, sought indemnification under her property insurance policy for damage to her log house caused by a contractor's restoration work.

The trial judge found coverage existed but dismissed her claim due to late notice of the loss, denying relief from forfeiture.

The Court of Appeal upheld the dismissal but varied the costs awards, finding the trial judge had expanded the scope of issues beyond those directed by the appellate court in its prior decision, thereby increasing the appellant's reasonable cost expectations.

On appeal from a trial judgment involving an oil tank leak at a residential property.

The trial judge found Thompson Fuels negligent for failing to conduct required comprehensive inspections and water testing of fuel oil tanks, but found the Technical Standards and Safety Authority (TSSA) not liable.

The plaintiff was found 60% contributorily negligent and Thompson Fuels 40% liable.

The appellate court upheld the trial judgment with one adjustment regarding betterment related to a line of credit.

The court addressed complex issues including the enforceability of exclusion clauses in consumer contracts, the application of regulatory obligations to civil liability, Pierringer agreements, and the calculation of damages in environmental contamination cases.

Following a jury trial in a fire loss action where the defendant insurer successfully defended the claim based on a material change in risk and wilfully false statements, the insurer sought costs.

The plaintiffs argued the insurer should be denied costs due to bad faith and delay tactics.

The court rejected the plaintiffs' arguments, finding they contributed significantly to the delay and failed to substantiate their aggressive bad faith allegations.

The court awarded the insurer partial indemnity costs up to the date of its settlement offer and substantial indemnity costs thereafter, totaling $616,843.27.

The Plaintiff sought an order finding the L'vova Defendants (Aida L'vova and Yuri Kulinich) in contempt for breaching various court orders, including a Mareva injunction, an order for accounting, and an order to pay $700,000 into court.

The court found both Aida and Yuri in contempt, concluding they knowingly and deliberately acted to hide funds and defy court orders.

Aida directed the transfer of $700,000 to her son, who then transferred it to Yuri, who claimed to have used it for gambling debts.

The court imposed an initial 2-day detention, followed by an 88-day intermittent (weekend) incarceration if the $700,000 is not paid into court by mid-September 2018, emphasizing deterrence, denunciation, and coercion.

This decision addresses a threshold motion brought by the defendants in a motor vehicle accident claim.

The plaintiff, Barry O'Brien, sought damages for injuries sustained, including a pilon fracture of his left ankle, depression, PTSD, and an exacerbation of low back symptoms.

A jury had previously awarded general damages and past loss of income but no future loss of income.

The defendants argued that the plaintiff's injuries did not meet the 'permanent serious impairment' threshold under s. 267.5(5) of the Insurance Act, RSO 1990, c I.8, and Regulation 461/96, thereby barring his claim for non-pecuniary loss.

The court, while considering the jury's verdict, independently assessed the medical and other evidence.

It concluded that the plaintiff's left ankle fracture resulted in a permanent serious impairment of an important physical function related to his employment, substantially interfering with his ability to continue heavy labour, especially considering the future deterioration due to arthritis.

However, the court found that the impairment did not substantially interfere with most of his usual activities of daily living.

Consequently, the defence's threshold motion was dismissed.

The City of Kawartha Lakes appealed a Master's order compelling its solicitor to answer questions and produce documents on cross-examination regarding an affidavit she swore.

The Master found that the City had waived solicitor-client and settlement privilege by voluntarily disclosing detailed narratives of its conduct, legal advice, and settlement negotiations in the affidavit.

The Superior Court dismissed the appeal, upholding the Master's findings that the information was relevant and that the privileges had been waived.

The court also confirmed that section 239 of the Municipal Act does not create a new 'closed session' privilege.

Following a jury trial regarding a denied home insurance claim for a fire, the jury found that the plaintiffs used portable electric heaters as their primary heat source and made wilfully false statements on their proof of loss.

The plaintiffs brought a motion arguing the verdict was perverse and seeking relief from forfeiture.

The court dismissed the plaintiffs' motion, finding there was evidentiary support for the jury's conclusions and that relief from forfeiture is not available where a claimant makes wilfully false statements, as this goes beyond imperfect compliance.

Judgment was entered for the defendant insurer.