M. D. Faieta

Following a settlement between defendants and several third parties in a defective window litigation, the plaintiff sought disclosure of the settlement terms and scheduled a motion for that relief.

Before the motion proceeded, the plaintiff received sufficient information about the settlement through exchanged emails and draft releases and abandoned the motion but sought costs for bringing it.

The responding parties also sought their costs.

The court declined to determine the abstract merits of the abandoned motion solely for costs purposes and held that continuing the motion solely to support a costs claim was a waste of court and counsel resources.

No costs were awarded to any party.

Following a motion in a civil proceeding, the defendants sought costs against the self‑represented plaintiff.

The plaintiff did not provide submissions on the issue of costs.

The court considered the defendants’ submissions and concluded that an award of costs was fair and reasonable.

Each defendant was awarded $5,000 inclusive of disbursements and HST.

The court also dispensed with the requirement that the defendants obtain the plaintiff’s approval of the form and content of the dismissal and costs order.

Following a successful motion to enforce a settlement agreement, the plaintiff sought costs on a substantial indemnity basis exceeding $32,000.

The defendants argued their conduct did not justify elevated costs and that a genuine legal issue existed regarding whether a binding settlement agreement had been reached.

The court considered the factors under Rule 57.01 of the Rules of Civil Procedure and the Court of Appeal’s guidance on when substantial indemnity costs are appropriate.

The court found the defendants’ conduct did not meet the threshold of reprehensible, scandalous, or outrageous behaviour warranting substantial indemnity costs.

However, costs were awarded to the plaintiff on a partial indemnity basis in a reduced amount due to excessive hours claimed.

Franchisee applicants sought declarations that their franchise agreements had been terminated due to fundamental breaches by the franchisor entities and that restrictive covenants were unenforceable.

The applicants alleged the franchisor failed to maintain the franchise system, including advertising, training, approved suppliers, branded materials, and operational support.

The court held these failures constituted fundamental breaches terminating the franchise agreements.

As a result, the non‑competition clauses were declared void, and the court ordered the waiver of landlord consent requirements to permit assignment of certain commercial leases under s. 23 of the Commercial Tenancies Act.

Costs of $20,000 on a partial indemnity basis were awarded to the applicants.

The applicant brought an application under section 23 of the Solicitors Act for a declaration that legal services provided by the respondent lawyer in an underlying veterinary malpractice action were rendered on a pro bono basis.

The respondent argued the oral retainer was a contingency fee arrangement and billed the applicant $34,000 after the action settled.

The court found that the respondent failed to discharge the heavy onus of proving the terms of the oral retainer over the client's understanding.

The court declared the services were provided pro bono and ordered the return of fees previously paid.

Following a trial, the defendant requested production of opposing counsel’s computer dockets to obtain evidence of the time and expenses incurred for the purpose of assessing costs.

The plaintiffs objected, arguing such detailed disclosure was not required under the Rules of Civil Procedure.

The court reviewed the principles governing costs assessments, emphasizing that fixing costs is not a mechanical calculation based on hours multiplied by rates.

Considering the significant expense and privilege concerns associated with producing detailed dockets, the court held that such production was not appropriate in the circumstances.

The request for production of the dockets was dismissed and the responding party was directed to deliver its costs submissions within two weeks.

The appellant appealed a master's decision refusing relief from the deemed undertaking rule to permit use of discovery evidence outside the litigation.

The moving party sought to disclose documentary discovery to a securities regulator and to police authorities in order to report alleged regulatory violations and perjury by a non-party.

The court held that relief from the deemed undertaking rule requires an evidentiary foundation demonstrating a superior public interest in disclosure, consistent with the principles in Juman v. Doucette.

The appellant failed to provide the discovery documents or identify the specific regulatory or criminal violations allegedly revealed, and its affidavit evidence was speculative and inadmissible in parts.

The appeal was dismissed.

The plaintiff commenced an action against the defendant regarding a restaurant business dispute, and the defendant counterclaimed.

Shortly before trial, the plaintiff discontinued its action.

The defendant offered to discontinue the counterclaim on a without-costs basis, which the plaintiff rejected.

The defendant then discontinued the counterclaim.

Both parties sought costs of the discontinued proceedings.

The court dismissed both claims for costs, finding that the general rule of indemnifying a successful party applied and neither party could claim success on the merits.

The court awarded the defendant partial indemnity costs of the costs motion, as the plaintiff had rejected a sensible offer to resolve the matter without costs.

Following a three‑day trial in which the plaintiff’s claim for $68,506.25 was dismissed, the successful defendant sought costs on a substantial indemnity basis.

The court held that substantial indemnity costs were not warranted because there was no Rule 49 offer triggering such consequences and no reprehensible conduct by the opposing party.

The court also adjusted the claimed partial indemnity rate, finding that a 67% recovery of actual counsel rates was excessive and that a rate approximating 60% of substantial indemnity was more typical.

Applying the Rule 57.01 factors, including a refused settlement offer, the court awarded a global costs amount reflecting fairness, reasonableness, and proportionality.

The defendant appealed an order of a Master setting aside a Registrar’s administrative dismissal of an action for delay under Rule 48.14 of the Rules of Civil Procedure.

The underlying action alleged a fraudulent conveyance of property by a judgment debtor to his spouse in order to defeat creditors.

The court reviewed the discretionary standard governing motions under Rule 37.14 and the contextual test for reinstating actions dismissed for delay, including considerations of explanation for delay, inadvertence, promptness of the motion, and prejudice.

The court held that a plaintiff is not required to provide extensive affirmative evidence of absence of prejudice where the defendant offers none and the surrounding circumstances indicate no non-compensable prejudice.

The appeal was dismissed and the Master’s order reinstating the action was upheld.

The plaintiff brought a motion to enforce a settlement agreement reached at mediation regarding his claim for unpaid bonuses following the termination of his employment.

The defendants refused to finalize the settlement after discovering the plaintiff was working for a competitor, alleging a breach of his non-competition agreement.

The court found that the parties had reached a binding settlement agreement on all essential terms.

The court held that the alleged breach of the non-competition clause was not material to the plaintiff's entitlement to a bonus earned during his employment, and enforced the settlement agreement.