Mary A. Sanderson

The court issued supplementary reasons regarding costs on a motion for default judgment.

The plaintiff failed to direct the court's attention to the possible effect of section 8 of the Interest Act on its claim and made a significant calculation error of $126,999.99 in its recalculation of the amount owing on the defendant's guarantee as of November 4, 2024.

As a result, the court exercised its discretion to deny the plaintiff's claimed costs on the motion.

Post-judgment interest was ordered to be calculated pursuant to the Courts of Justice Act.

The court issued supplementary reasons addressing discrepancies in the calculation of interest owing by Vector as of November 4, 2024.

The plaintiff's affiant calculated total interest at $537,329.14, but the court identified potential errors in the calculation, noting that interest payments of $42,333.33 made on three separate dates may not have been properly reflected.

The court requested further clarifying supplementary affidavits to resolve the apparent discrepancies before finalizing the judgment.

The plaintiff sought default judgment against the defendant as guarantor of a mortgage loan in the amount of $669,377.05 plus continuing contractual interest.

The defendant failed to file a statement of defence and was noted in default.

The court rejected the default judgment motion, finding that the plaintiff failed to adequately establish the quantum of damages claimed.

The court identified critical deficiencies in the evidence regarding the calculation of interest, the enforceability of contractual interest rate increases, and the validity of special servicing and default administration fees.

The court directed the plaintiff to recalculate the amount owing using the pre-step-up interest rate and to disallow unenforceable fees and charges.

The court considered a motion for default judgment brought by the plaintiff, Ranjani Venkataramani, against Abdulla Abdul Fatah, 5053767 Ontario Inc. (operating as Apolo and Co.), John Doe Construction Corp, and Golden Seal Construction Corp. The plaintiff sought damages for breach of contract, breach of the Consumer Protection Act, negligence, negligent misrepresentation, and punitive damages arising from a failed home renovation.

The court granted partial default judgment for $80,000 against Apolo and the same amount jointly and severally against Apolo and Mr. Fatah under the Consumer Protection Act, but declined to award further damages for delay, lost rental income, additional interest, or punitive damages due to insufficient evidence.

The court also clarified the limited circumstances in which corporate officers can be held personally liable.

This is a final costs endorsement following a motion by the plaintiff, Waugh, to enforce an undertaking.

The court reviewed submissions regarding the requirement for leave to bring the motion, noting that a prior judge had scheduled the motion despite a leave requirement and that counsel for Bentworth had not objected on this basis until later.

The court found it unfair to impose substantial indemnity costs on Waugh and ordered Waugh to pay partial indemnity costs of $14,000 plus HST to Bentworth Outdoor Storage Inc. and Hy Hershberg.

No costs were awarded to Pinckard as she did not appear.

The plaintiff, a real estate brokerage, sued the defendant for breach of contract for an unpaid leasing commission on a commercial property.

The core issues involved whether an Offer to Lease was terminated, whether a subsequent lease with a Loblaw affiliate (Shoppers Drug Mart) fulfilled the commission agreement's conditions, and the interpretation of the "Tenant" definition to include after-acquired affiliates.

The court found that the Offer to Lease was not terminated, the Shoppers Lease substantially fulfilled the conditions, and the definition of "Tenant" objectively included entities that became Loblaw affiliates within the specified 24-month period.

The plaintiff was awarded the commission, but interest was limited to 5% per annum due to a violation of the Interest Act.

The plaintiffs sought payment of $54,500 plus interest, representing the unpaid balance of a $100,000 purchase price for a pizza business.

The defendants argued there was no binding contract or, alternatively, that the plaintiffs breached its terms.

The court found a binding contract existed as of July 31, 2012, for the purchase of the business, including equipment and the assignment of a lease, contingent on the plaintiffs fulfilling certain conditions.

However, the plaintiffs failed to take necessary steps to assign the lease and transfer corporate shares, and allowed the lease to fall into default, leading to its termination.

This made it impossible for the plaintiffs to complete their end of the bargain.

Consequently, the plaintiffs' claim was dismissed against all defendants, with costs awarded to the defendants.

The plaintiffs moved for summary judgment against the defendants for breach of an Agreement of Purchase and Sale.

The defendants raised five defenses.

The court granted summary judgment on four defenses (unenforceability due to waiver, bad faith, mitigation, and insufficient funds to close a secondary property purchase), finding no genuine issue for trial on these points.

However, a trial of an issue was ordered to determine the foreseeability of the quantum of forfeited deposits related to the secondary property purchase, as there was conflicting evidence regarding the defendants' knowledge of the deposit amounts at the time of contract.

Following a trial involving competing defences, the court addressed costs where each side experienced partial success.

The defendants succeeded on a late‑amended secondary defence but failed on their primary defence alleging deliberate misrepresentation by the plaintiff.

Most pre‑trial costs related to the unsuccessful fraud allegation, while only a small portion of the trial addressed the successful defence.

Applying Rule 57.01(2) of the Rules of Civil Procedure and considering the timing of the amendment and the nature of the allegations, the court ordered that the plaintiff recover costs incurred prior to the amendment while each party bear its own trial costs.

A short marriage ended in litigation concerning divorce, equalization of net family property, ownership of a condominium purchased before marriage, and claims relating to wedding gifts and a motor vehicle.

The court found that the condominium had been purchased entirely with funds provided by the applicant’s parents prior to the marriage and that alleged payments by the respondent’s parents in China were not proven to have been transferred to the parties or intended to affect property division in Ontario.

Given the brief period of cohabitation and the respondent’s minimal financial contribution, equalization under s. 5 of the Family Law Act would have been unconscionable.

The court therefore ordered an unequal division of net family property, confirming the applicant’s sole ownership of the condominium and jewelry while recognizing the vehicle as a gift to the respondent.

The defendants brought a motion under Rules 21 and 25 of the Rules of Civil Procedure to strike the plaintiffs’ statement of claim alleging harassment, injuries, and inadequate police response at a social housing complex.

The court held the pleadings disclosed no reasonable cause of action against the landlord or the police board.

The landlord’s liability for third‑party conduct under the Residential Tenancies Act requires foreseeability and notice of repeated conduct, which had not been properly pleaded, and most alleged incidents were also statute‑barred.

Claims against the police board for failure to investigate or lay charges could not ground a civil cause of action due to police discretion in investigative and charging decisions.

The claim was dismissed as statute‑barred and legally insufficient.

Following a rear‑end motor vehicle collision, the plaintiffs sought damages for physical, psychological, and economic losses.

Liability was admitted, but the defendant disputed causation and the extent of damages, arguing the plaintiff’s ongoing back problems were attributable to a prior martial arts injury and pre‑existing disc herniation.

The court preferred the evidence of several treating and examining physicians and found the collision aggravated the pre‑existing disc condition, precipitating surgery that led to chronic pain and functional impairment.

The court also accepted expert psychological evidence that chronic pain and depression caused genuine cognitive impairments affecting the plaintiff’s work capacity.

Damages were awarded for general damages, loss of earning capacity, housekeeping costs, medical expenses, a per quod claim by the plaintiff’s company, and a Family Law Act claim by the plaintiff’s child.

The insurer brought a motion for partial summary judgment seeking a declaration that its liability under the OPCF 44R Family Protection Coverage was limited because there was no corroborative “other material evidence” of an unidentified vehicle involved in the accident.

The plaintiffs alleged the driver took evasive action to avoid an unidentified vehicle, causing a rollover collision and catastrophic injuries.

The court reviewed physical evidence including tire marks, sensor diagnostic data, police notes, and an accident reconstruction expert report.

The court held that this evidence, if accepted at trial, could constitute physical evidence indicating the involvement of an unidentified automobile within the meaning of the OPCF 44R endorsement.

As a result, a genuine issue requiring a trial existed and summary judgment was inappropriate.

The applicants sought a declaration that their homeowners’ insurer owed a duty to defend third party claims for contribution and indemnity brought against them after their child was injured in a motor vehicle accident.

The insurer denied coverage relying on a family member exclusion clause excluding claims for bodily injury to persons residing in the insured’s household.

The court held that the exclusion clause did not clearly extend to indirect claims by third parties because it lacked wording such as “arising out of” or language expressly encompassing indirect claims.

Interpreting coverage provisions broadly and exclusions narrowly, the court concluded the clause excluded only direct claims between household members.

As the third party claims were brought by non-household defendants, the insurer had a duty to defend.

Following a jury trial involving two related actions, the court addressed the issue of costs.

The court held that the same cost considerations applied to both plaintiffs in the related proceedings.

As a result, the plaintiff in this action was ordered to pay costs to the defendants.

The court fixed the costs payable at $35,000.

Following a jury trial in two related motor vehicle personal injury actions where the plaintiffs recovered no damages, the defendants sought substantial partial indemnity costs exceeding $178,000 against one plaintiff.

The court considered the general principles governing costs under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, including reasonableness, the indemnity principle, and access to justice.

The plaintiff argued that costs should be nominal or none due to financial hardship, lack of employment, and the presence of some medical evidence supporting the claim.

The court held that while unsuccessful litigants should generally pay costs, impecuniosity and hardship may be considered in fixing the quantum.

Balancing these factors, the court reduced the costs significantly and ordered the plaintiff to pay $35,000.

The plaintiff sought damages against one defendant for breach of contract arising from a failed investment transaction and against a lawyer who held the funds in trust for breach of contract, negligence, and breach of fiduciary duty.

The funds had been advanced pursuant to a memorandum of agreement for a proposed financial transaction, with the lawyer initially holding the funds in escrow.

The court found that the parties orally amended the agreement to allow an early release of part of the funds before trading commenced.

Because the lawyer released the funds in accordance with the amended agreement and acted solely for the borrower, no contractual, fiduciary, or negligence liability arose.

Judgment was granted against the borrower for repayment of US$150,000, while the claims against the lawyer were dismissed.

The applicant brought a motion to change seeking reduction or termination of spousal support, termination or adjustment of child support for adult children pursuing post‑secondary education, and removal of a life insurance requirement securing support obligations.

The respondent cross‑moved for increased spousal support and arrears.

The court considered the Federal Child Support Guidelines and jurisprudence governing support for adult children living away at university, finding that full table support may be inappropriate where parents are already contributing to living and education costs.

The court ordered modified child support reflecting different circumstances for each child and required a contribution from the adult child pursuing additional education.

Spousal support remained payable at $1,700 per month based on compensatory principles arising from childcare responsibilities and economic disadvantage, with income imputed to the respondent.

The payor was also ordered to obtain increased life insurance to secure support obligations and to pay arrears.

Following a jury trial on damages arising from a motor vehicle accident, the defendant brought a threshold motion under s. 267.5(5) of the Insurance Act arguing that the plaintiff had not established a permanent serious impairment of an important physical, mental, or psychological function.

The jury awarded $10,000 in general damages but no other damages, which would result in no recovery after the statutory deductible.

The court independently assessed the threshold issue and concluded that the plaintiff suffered chronic pain, fibromyalgia, and major depression causally related to the accident, resulting in permanent impairments affecting employment capacity and daily functioning.

The court rejected defence expert evidence alleging malingering and preferred the evidence of treating physicians and other experts.

The statutory threshold was therefore met and the defendant’s motion was dismissed.

Following a six‑day construction dispute trial involving claims for unpaid masonry work and breach of statutory trust under the Construction Lien Act, the successful plaintiff sought substantial indemnity costs exceeding $138,000.

The court had previously found that the corporate defendant breached statutory trust obligations and that its principal was personally liable, including findings that false declarations were advanced in support of the defence.

Applying the factors in Rule 57.01 of the Rules of Civil Procedure and the principle of reasonableness in costs awards, the court held that the amount claimed was excessive relative to the value and complexity of the claim.

Although substantial indemnity costs were justified because of the breach of trust and litigation conduct, the court reduced the award.

Costs were fixed at $90,000 inclusive of disbursements and taxes.