M. P. Eberhard

The defendant moved to set aside a default judgment and sought leave to file a statement of defence and counterclaim, or alternatively to stay enforcement of the judgment pending determination of a counterclaim alleging deficiencies in contractual work.

The court found no evidence that the defendant intended to defend the action when the defence was due and noted repeated warnings and follow-ups from the plaintiff before default judgment was obtained.

The alleged deficiencies were not raised until months after judgment and enforcement efforts.

Applying the principles governing motions to set aside default judgment, the court held the defendant had effectively made a conscious decision not to participate in the litigation and had not demonstrated a meritorious defence at the relevant time.

The default judgment remained enforceable, although the defendant’s counterclaim could proceed independently.

Following the dismissal of a will challenge via summary judgment, the successful respondents sought costs on a substantial indemnity scale.

The court found that the applicants' allegations of undue influence were not evidence-based and their vitriolic approach unnecessarily prolonged the litigation.

The court awarded costs of $275,000 to the estate and $125,000 to the respondent personally, payable by the applicants, with one applicant's liability capped at 20%.

The decision concerns costs following an earlier ruling regarding a disputed development condition tied to a municipal option to purchase land originally reserved for school board use.

After the court determined the condition was unsupported and imposed a reasonable time for the municipality to exercise or waive its option, the successful applicant sought partial indemnity costs of $16,612.83.

The respondent argued the claimed partial indemnity rate was excessive and proposed a lower percentage.

Applying the Rule 57 criteria and principles of proportionality, the court noted that costs were being fixed rather than assessed and that the issues, while not complex, were unique and carefully addressed by senior counsel.

The court found no excess in the work performed but adjusted the amount, fixing costs payable to the applicant at $14,500 all inclusive.

Following the refusal of leave to appeal an order, the successful party sought costs.

The responding party argued that awarding costs at this stage would be unjust because issues arising from earlier procedural missteps by the plaintiff could be addressed later in the proceeding.

The court held that each litigation step attracts its own costs determination and that any additional costs arising from procedural errors could be considered when final costs are assessed.

As the plaintiff successfully resisted the motion for leave to appeal, the court fixed costs in its favour on a partial indemnity basis.

Following a prior decision on competing motions, the court determined the appropriate costs award between the plaintiff and the statutory third party.

The plaintiff sought partial indemnity costs as the successful party on the statutory third party’s motion, while the statutory third party sought a set-off based on costs incurred responding to the plaintiff’s motion for directions, which was later withdrawn.

The court held that both motions arose from the same litigation context and that some allowance should be made for the additional work caused by the withdrawn motion, but not to the extent claimed by the statutory third party.

The court emphasized that the task was to fix costs rather than assess them through a strict formula.

After considering the circumstances, the court fixed the plaintiff’s costs at a reduced amount following set-off.

The moving parties (respondents in the main action) brought a motion for summary judgment to dismiss the responding parties' claims challenging the validity of the deceased's 2005 will and inter vivos transfers.

The responding parties alleged that the deceased was subjected to undue influence and fraud by her son, the primary beneficiary.

The court reviewed the extensive circumstantial evidence and found no genuine issue requiring a trial, noting that the deceased was an independent and strong-willed individual who made deliberate choices about her estate.

Summary judgment was granted dismissing the claims to set aside the 2005 will and the inter vivos transfers.

The moving party sought leave to appeal an order granting consolidation and transfer of several Small Claims Court actions to the Superior Court of Justice and dismissing a motion to strike for abuse of process.

The moving party argued that a prior consent dismissal in a related Superior Court action rendered the issues res judicata and relied on appellate authority concerning the finality of consent dismissal orders.

The court held that the prior decision did not conflict with the authorities cited and that the motions judge properly exercised discretion in considering the factors from the Supreme Court of Canada decision addressing res judicata.

The court found no reason to doubt the correctness of the earlier ruling and concluded that the circumstances were sufficiently particular to avoid concerns about undermining finality of consent dismissals.

Leave to appeal was therefore refused.

Following a family law trial, the court addressed the issue of costs.

The unsuccessful party advanced an unreasonable theory at trial, requiring the opposing party to expend significant effort to establish entitlement to support and property division.

Although the successful party did not obtain the full quantum sought, the court found the litigation efforts necessary, including expert evidence relating to income.

Applying proportionality and the general principle that the successful party is presumptively entitled to costs, the court fixed costs in favour of the successful party.

The defendant employer brought a motion for summary judgment in a wrongful dismissal action where the employee had been terminated with eight months’ compensation in lieu of notice.

The employee claimed damages for wrongful dismissal, moral damages, intentional infliction of mental suffering, and punitive damages.

The court found that the termination occurred in the context of an investigation into alleged misconduct and that the circumstances surrounding the investigation and termination could support claims for additional damages.

Because the plaintiff raised triable issues regarding stigma, alleged bad faith in the termination process, and the assessment of damages, the court held that a full appreciation of the issues required a trial.

The accused applied in the nature of certiorari to quash a committal for trial on a charge of administering a noxious substance under the Criminal Code.

The evidence at the preliminary hearing showed that the complainant had independently formed an intention to commit suicide and asked the accused to bring drugs and prepare a syringe for that purpose.

The court considered whether preparing a syringe and facilitating drug ingestion could constitute "administering" within the meaning of the offence.

Relying on appellate authorities interpreting the term, the court held that administering requires causing the substance to enter the complainant’s system.

Merely providing drugs or preparing them for voluntary ingestion by the complainant did not amount to administering.

The committal on that count was therefore quashed.

A statutory third-party insurer moved to set aside a prior summary judgment establishing liability against insured defendants in a motor vehicle personal injury action.

The insurer argued that under s. 258(15) of the Insurance Act it should be permitted to contest liability and damages despite the default and summary judgment entered against the insured.

The court held that the insurer had chosen not to participate in earlier proceedings and was effectively attempting a collateral attack on a prior order refusing to set aside the noting in default.

Because the insurer provided no evidence of a viable defence on the merits and failed to meet the applicable test for setting aside a judgment, the court declined to set aside or vary the order.

The request to allow the insurer to contest liability notwithstanding the judgment was also refused.

Following motion proceedings in an appeal-related matter, the moving parties sought partial indemnity costs in the amount of $2,894.78 by written submissions.

The court noted that each procedural step in litigation attracts costs and that the propriety of such costs could be addressed on appeal without requiring the Court of Appeal to fix them directly.

Although the court observed that the requested amount appeared higher than expected and that the issue had become unnecessarily contentious, it acknowledged that time had been expended by counsel.

The court ultimately exercised its discretion to fix costs payable to the moving parties at a reduced amount.

Following a family law motion in which the moving party sought leave to add a third party, conduct questioning, and amend the application to advance constructive and equitable trust claims, the court addressed the issue of costs.

The responding party was generally successful in resisting the motion.

The court found no factors warranting elevated or substantial indemnity costs.

Costs were therefore fixed on a standard basis.

The moving party was ordered to pay a lump sum costs award to the successful party.

Following earlier trial reasons and supplementary endorsements in a family law proceeding, the applicant brought an urgent post‑judgment motion concerning enforcement of property and financial orders arising from the sale of the matrimonial home.

The respondent failed to participate or comply with several prior court orders.

The court approved short service, confirmed calculations regarding the sale proceeds, and ordered payment to the applicant from the proceeds with an additional shortfall payable by the respondent.

The court also ordered the respondent to transfer the family vehicle to the applicant and addressed issues relating to enforcement, declining to involve the Family Responsibility Office because the order was not related to support.

Costs were awarded to the applicant, including trial costs and full indemnity costs for post‑trial enforcement motions.

Following earlier reasons for decision that included alternative child support arrangements depending on the children's residence, the court issued a supplementary endorsement clarifying the operative support provisions.

It was confirmed that one child resided with the mother and the other with the father as of August 2012.

The court directed that the child support provisions contained in specified paragraphs of the previously signed judgment be enforced accordingly.

The clarification was provided to assist the Family Responsibility Office in enforcing the order.

A support deduction order was directed to issue.

A mother applied under the Child and Family Services Act seeking to resume access to her child and ultimately pursue an openness order following the Children’s Aid Society’s termination of access.

The child had been made a Crown ward with access, but a lengthy hiatus in visits occurred after the mother ceased exercising access for over a year.

The court considered whether the relationship remained “beneficial and meaningful” to the child, a prerequisite for access or openness arrangements under the statutory scheme.

Given the extended lapse in contact, the child’s developmental needs, and the absence of an ongoing relationship, the court found the statutory threshold was not met.

The application to resume access was dismissed.

Following a family law trial, the court issued a supplementary endorsement addressing clarification requests regarding earlier reasons for decision.

The judge explained the limited post‑trial jurisdiction and emphasized that the role was confined to clarifying the judgment to facilitate preparation of the final order.

The court reviewed the draft order prepared following trial and identified three corrections required to accurately reflect the reasons for decision, including clarification regarding child residence arrangements and the finding that no notional costs of sale were to be applied.

Administrative steps were also directed to process the divorce and to prepare an order involving the Office of the Children's Lawyer.

Following guardianship proceedings concerning an adult alleged to be incapable of managing property, the court addressed competing claims for legal costs payable from the incapable person's estate.

Multiple parties, including family members, a private trust company, counsel for the incapable person, and the Public Guardian and Trustee, sought full indemnity costs.

The court considered whether the litigation was necessary to protect the incapable person's interests and whether each participant's involvement justified reimbursement from the estate.

While family members and required institutional participants were awarded their claimed costs, the private trust company's recovery was reduced due to limited evidence of its contribution and excessive hourly rates.

Multiple motions arose from a long-running property drainage dispute following earlier orders requiring implementation of a drainage design.

The defendant initially brought a motion to set aside or vary prior orders but abandoned it at the hearing, while the plaintiffs sought dismissal of that motion, payment out of funds held in court to implement engineering work, and restrictions on further motions by the defendant.

The court confirmed that its role was limited to implementing the previously ordered design or a variation agreed upon by the parties and ordered that the drainage work proceed under the agreed Pearson design.

Funds already paid into court were ordered paid out to the plaintiffs for construction costs, and the defendant was directed to pay an additional amount into court subject to documentation of implementation expenses.

The court also required the defendant to obtain leave before bringing any further motions.

Following a family law motion concerning increased child and spousal support and disclosure, the court determined costs after written submissions.

The moving party had abandoned part of the motion after receiving late disclosure but remained partially successful given the necessity of the proceeding amid ongoing financial disarray between the parties.

The court considered earlier procedural steps and the parties’ conduct, noting that cooperation on some issues reduced litigation costs while delayed disclosure impeded settlement and adjudication.

Applying the general principles governing costs, the court found the moving party to be the successful litigant.

Costs were fixed in favour of the moving party in the amount claimed.