Matthew E. Taft

The appellant appealed a jury verdict dismissing her negligence action against the respondent homeowners after she slipped and fell on their staircase.

The appellant argued the trial judge erred in excluding the first set of expert slip resistance testing, resulting in a miscarriage of justice.

The Court of Appeal found no error in the trial judge's gatekeeping decision under the White Burgess framework, as the excluded testing differed materially from the actual conditions.

Even if the exclusion were erroneous, no miscarriage of justice resulted because the tampering theory was still advanced at trial through other evidence and the jury's verdict turned on the credibility of the parties.

This is a costs endorsement following a successful motion brought by the defendant.

The court considered the defendant's reasonable offer to settle (Rule 49.10) and the factors under Rule 57.01(1) for fixing costs.

Despite the defendant's success, the court found the hours claimed by defence counsel to be excessive for a non-complex matter.

Balancing the indemnity principle with access to justice, the court fixed costs at $3500.00 plus HST and disbursements, with a deduction for a retainer already paid by the plaintiff.

The defendant lawyer brought a motion to strike the self-represented plaintiff's statement of claim.

The plaintiff had sued the lawyer for breach of contract, false advertising, and breach of privilege after the lawyer withdrew his services regarding provincial offences charges.

The court found it plain and obvious that the claims could not succeed, as the lawyer had good reason to withdraw under the retainer agreement and gave ample notice.

The court also found the action to be frivolous, vexatious, and an abuse of process, noting the plaintiff's history of similar proceedings against justice sector participants.

The statement of claim was struck and the action dismissed without leave to amend.

The plaintiff, Zubin Hooshangi, brought a 45-paragraph Statement of Claim and a subsequent Amended Claim against the defendants, Jason Emilio Ruffolo and Limestone Property Management, seeking damages for defamation, fraudulent concealment/misrepresentation, and injunctive relief.

The claims arose after the Condominium Management Regulatory Authority (CMRAO) denied the plaintiff's certification, based on the defendants' input that he had not worked the required 3000 hours.

The defendants moved to strike the claim under Rule 20.01(3) for showing no cause of action, arguing it was frivolous and vexatious.

The court dismissed both the original and amended claims without leave to amend, finding no recognized cause of action for "fraudulent concealment," insufficient particulars for the defamation claims, and no basis for injunctive relief.

The court also found the plaintiff's asserted work hours to be "beyond belief and not capable of being proven," concluding that the allegations were untenable, scandalous, and made for a collateral purpose (certification), and that the Licensing Appeal Tribunal was the appropriate forum for the certification dispute.

Costs of $10,000 were awarded to the defendants.

The defendants brought motions to strike the self-represented plaintiff's statement of claim, which sought over $2.2 million in damages related to real estate properties the plaintiff did not own.

The plaintiff, who had recently been declared a vexatious litigant in a separate proceeding, sought an adjournment, which was denied.

The court struck the statement of claim without leave to amend, finding it disclosed no reasonable cause of action, the plaintiff lacked capacity to sue regarding properties he did not own, and the action was an abuse of process.

Costs were awarded to the defendants on a partial and substantial indemnity basis.

The applicant medical officer of health obtained a without-notice order under section 102 of the Health Protection and Promotion Act to close the respondents' pub for defying COVID-19 public health measures.

At a come-back hearing, the self-represented respondent argued the orders were invalid, breached his rights, and that the pub was his residence.

The court dismissed the respondents' arguments, finding the drastic remedy of changing the locks was proportionate to their open defiance of the law.

The original orders were continued, and the respondents were ordered to pay $20,000 in costs.

The applicant sought directions under Rule 60.17 of the Rules of Civil Procedure to enforce a prior court order requiring the closure of the respondents' business for violating COVID-19 public health measures.

The respondents had refused to comply with the initial order, claiming the business was now a residence.

The court granted the directions, authorizing the Sheriff and police to remove all persons from the premises and change the locks to ensure compliance.

The Medical Officer of Health for Kingston, Frontenac and Lennox and Addington brought an ex parte application for a restraining order under s. 102 of the Health Protection and Promotion Act against the respondents, who operate a restaurant.

The respondents had openly defied a s. 22 order requiring them to comply with COVID-19 public health measures, including mask mandates and vaccine passports.

The court found clear breaches of the order and the applicable regulations.

The court granted the restraining order, including a term directing the Sheriff to lock the external doors of the premises, and scheduled a come-back hearing.

Following a summary trial where the plaintiffs were completely successful and awarded damages of $191,429.88, the court determined the appropriate scale and quantum of costs.

The court rejected the defendants' argument that the $50,000 costs cap under Rule 76.12.1 applied, finding the action was commenced before the rule's effective date of January 1, 2020, despite later amendments.

The court declined the plaintiffs' request for full indemnity costs, maintaining its trial finding that substantial indemnity costs were appropriate due to the defendants' egregious and fraudulent conduct.

Costs were fixed at $95,000 for the main action and $25,000 for the construction lien action.

The Crawfords hired Shane Ross and his companies (Standard Building Contractors Limited and Standard Paving Limited) to rebuild their fire-damaged home.

Despite receiving significant insurance proceeds, the defendants performed minimal work and engaged in fraudulent conduct, including submitting forged engineering documents for a building permit.

The Crawfords terminated the contract and sought damages, return of funds, a permanent Mareva injunction, and a finding of contempt.

The defendants counterclaimed for work done and asserted a construction lien.

The court found that the defendants fundamentally breached the contract, engaged in deceptive and fraudulent conduct, and were in contempt of court for violating a prior Mareva injunction.

The court awarded the Crawfords judgment for the advanced funds (less minimal work value), punitive damages, and dismissed the construction lien, awarding damages under the Construction Act.

The Mareva injunction was made permanent and expanded.

The appellant appealed from a partial summary judgment that limited the respondents' liability to $2 million pursuant to a liability cap in a personal services contract.

The appellant argued the motion judge erred in interpreting the contract by relying on subsequent conduct of the parties and in extending the liability cap to respondents who were not parties to the original contract.

The Court of Appeal upheld the motion judge's interpretation, finding no error in principle and affirming that the contract was extended to apply to the construction phase and that the liability cap was intended to benefit all respondents.

The plaintiff, Susan Eks, sued the defendant, Kerri Tadeu, for malicious prosecution, harassment, intentional infliction of mental suffering, and negligent infliction of psychiatric damage, stemming from Tadeu's actions following Eks's criminal conviction for arson and mischief against Tadeu's home.

Tadeu counterclaimed for intentional infliction of mental distress, negligence, nuisance, intimidation, and interference with enjoyment of property, and sought an injunction.

The court dismissed Eks's claim for malicious prosecution, finding Tadeu had reasonable and probable cause and lacked malice in seeking a peace bond.

The harassment claim failed due to a recent Court of Appeal decision.

While Tadeu's conduct of removing and searching Eks's garbage was deemed "flagrant and outrageous," Eks failed to prove it was calculated to cause harm.

Tadeu's counterclaim for intentional infliction of mental suffering also failed as Eks's return to Apollo Terrace was not "flagrant and outrageous" or calculated to harm, and Tadeu did not prove new psychological injury.

All other counterclaims were not made out.

Both the action and counterclaim were dismissed.

This costs endorsement addresses the quantum of costs for M. Sullivan & Son Limited and Dent Engineering (Michael Dent, Dent Engineering Ltd., and 1009044 Ontario Ltd.) following their successful motions for consequential relief.

The court rejected the plaintiff's argument to cap costs based on settlements with other defendants, emphasizing that these motions involved distinct issues and factual matrices.

Applying Rule 57.01, the court fixed M. Sullivan & Son Limited's costs at $15,000 and Dent Engineering's costs at $6,000, inclusive of disbursements and HST, to be paid by the plaintiff.