M. Gosia Bawolska

This is a costs endorsement following a trial in a commercial dispute involving unpaid accounts.

The plaintiff was partially successful in its claim, recovering $430,809, while its claim for additional amounts based on oral agreements was dismissed.

The defendants' counterclaim was entirely dismissed.

The court awarded costs to the plaintiff as the successful party, fixing costs at $150,000 in fees and $62,210.53 in disbursements on a partial indemnity basis.

The court rejected arguments for cost shifting based on a Rule 49 settlement offer that was less than the judgment and declined to impose sanctions based on allegations of impropriety made by either party.

The court dismissed the main action against Roger Rameshwar Rajkumar, finding no basis to pierce the corporate veil and impose personal liability for environmental damage to property.

The court granted the counterclaim of Rita Josomatee Rajkumar and 1526381 Ontario Inc. against Gloria Rajkumar, Superior Independent Medical Assessment Centre Ltd., and Simac Canada Inc., finding that Rita was constructively dismissed and entitled to 18 months’ notice and damages.

The decision addresses the legal standards for piercing the corporate veil, the distinction between employee and independent contractor, and the requirements for constructive dismissal and reasonable notice.

The court dismissed the main action against Roger Rameshwar Rajkumar, finding no basis to pierce the corporate veil and impose personal liability for environmental damage to property.

The court granted the counterclaim of Rita Josomatee Rajkumar and 1526381 Ontario Inc. against Gloria Rajkumar, Superior Independent Medical Assessment Centre Ltd., and Simac Canada Inc., finding that Rita was constructively dismissed and entitled to 18 months’ notice and damages.

The decision addresses the legal standards for piercing the corporate veil, the distinction between employee and independent contractor, and the requirements for constructive dismissal and reasonable notice.

Following a decision in which the applicant was successful, he sought costs of $23,740 on a substantial indemnity basis, relying on a Rule 49 offer to settle.

The court found that because the respondent's retained interest in the property was contingent, it could not be definitively determined that the judgment was more favourable than the $25,000 offer.

The court awarded partial indemnity costs fixed at $17,400, noting the respondent failed to file any costs submissions despite extensions.

The applicant transferred his home into joint tenancy with the respondent, his deceased partner's great-niece, to avoid probate fees.

He later severed the joint tenancy and sought a declaration of resulting trust.

The respondent claimed the transfer was a gift and alleged a mutual will agreement.

The court found the applicant gifted the right of survivorship but retained all beneficial interest during his lifetime.

The court held the applicant was entitled to sever the joint tenancy, converting it to a tenancy in common.

The respondent holds her 50% interest on resulting trust for the applicant during his lifetime, but retains the right of survivorship for that 50% upon his death.

The mutual will claim was dismissed.

The court considered costs submissions following a successful motion by the Defendants to set aside a default judgment.

The Defendants sought partial indemnity costs, while the Plaintiff sought substantial indemnity costs, including costs "thrown away" due to the default.

The court found no evidence of costs "thrown away" by the Plaintiff and noted the Defendants' lack of diligence in the underlying default.

Despite the Defendants' success on the motion to set aside default judgment, the court exercised its discretion under Rule 57.01(1) and ordered that each party bear their own costs, finding it fair and reasonable given the circumstances.

The defendants brought a motion to set aside a default judgment obtained by the plaintiff against the Estate of Paramjit Sahanan.

The court applied the factors from *Mountain View Farms Ltd. v. McQueen*, finding that while the defendants' excuse for default was not plausible, they acted promptly upon learning of the judgment and presented an arguable defence on the merits, particularly regarding the limitation period and the nature of the alleged debt.

The court also noted the plaintiff's long period of inaction.

The motion to set aside the default judgment was granted.

The appellants (Fasco) appealed a motion judge's decision to strike their defences to claims for contribution and indemnity by the respondent (Venmar) based on res judicata and abuse of process.

The underlying dispute involved two separate house fires, six years apart, both allegedly caused by a defective heat recovery ventilation unit (HRV) manufactured by Venmar, containing a motor manufactured by Fasco.

The motion judge had found that prior Quebec litigation concerning the first fire precluded Fasco from raising certain defences in the Ontario actions.

The Court of Appeal allowed Fasco's appeal, finding that the motion judge erred by not applying the "plain and obvious" test, and incorrectly concluded that the causes of action and issues were identical between the Quebec and Ontario proceedings, particularly given the different factual contexts (e.g., Venmar's evolving knowledge of defects) and the contractual indemnity defence Fasco sought to raise.

The court also noted that the motion judge should have considered the timeliness of Venmar's motion.

The appellants appealed a decision of the Superior Court of Justice regarding the entitlement to deposits in a real estate transaction.

The application judge had determined that the respondents were prima facie entitled to the deposits based on the written contracts.

The appellants argued the application should have been converted to an action and raised claims for relief from forfeiture.

The Court of Appeal upheld the application judge's decision, finding that the application was properly authorized under the Rules of Civil Procedure, that there were no material facts in dispute, and that the deposits were true deposits with no evidence of disproportionality or unconscionability.

This endorsement addresses multiple motions in a complex civil litigation involving a main action, a counterclaim, and a second action.

The Plaintiffs in the main action moved to extend time for trial, enforce a settlement dismissing their claim against one defendant (Rita Rajkumar), and strike Rita Rajkumar's counterclaim.

Separately, a plaintiff in the second action (15263851 Ontario Inc.) moved to join its action to the main action.

The court granted the extension of time and enforced the settlement.

However, the motion to strike the counterclaim was denied, as a counterclaim is a separate cause of action not dependent on the main claim's disposition.

The court also granted the motion to consolidate the second action with the main action, including the counterclaim, finding the issues interwoven and consolidation necessary to avoid inconsistent verdicts and multiplicity of proceedings.

The defendant brought a motion to transfer the action to the Small Claims Court after settling the main action with the plaintiff.

The third party opposed the transfer, arguing that it had incurred over $60,000 in defence costs over seven years of litigation in the Superior Court, which would not be recoverable in Small Claims Court.

The Master dismissed the motion, finding that a transfer at this late stage would prejudice the third party and would not secure the most just, expeditious, and least expensive determination of the remaining issues.

The applicants sought specific performance of an agreement of purchase and sale for a property containing a chapel, asserting its uniqueness for their business.

The respondents did not contest the agreement's enforceability but challenged the availability of specific performance.

The court found the applicants' evidence insufficient to establish the property's uniqueness, as required by *Semelhago v. Paramadevan*, lacking details on the property, the nature of the business, or a search for similar properties.

The motion for specific performance was dismissed, and the parties were directed to address damages.

The applicant sought an order appointing an administrator for the respondent condominium corporation, alleging the Board of Directors failed to act in the corporation's best interests, specifically regarding reserve fund maintenance and parking issues.

The court considered five factors for administrator appointment, noting that while the Board's past performance was substandard, recent actions had improved.

The application was dismissed, but without prejudice to a future application, and the respondent was ordered to pay $2,500 in costs to the applicant, acknowledging the applicant's efforts prompted the Board's improvements.

The plaintiffs brought a motion seeking to amend their statement of claim to increase damages, and for various orders concerning discovery, including the location and manner of examining the individual defendants and the adequacy of document production, particularly electronic documents and meta-data.

The defendants had relocated multiple times, complicating discovery.

The court granted leave to amend the claim, directed the individual defendants to be examined in Ottawa with alternative arrangements for examination in Europe, and found the defendants' document production deficient.

It ordered the production of Google logs/meta-data and an index for certain document folders, emphasizing collaborative discovery planning and the timely handling of confidential information through appropriate orders.

Following two civil trials with divided outcomes, certain defendants and a corporate plaintiff sought costs relying on a settlement offer they argued was more favourable than the trial results.

The court considered the offer alongside the broader Rule 57.01 factors, including the conduct of the litigation and the proportionality of the proceedings.

The court criticized both sides for launching actions without adequate evidentiary bases, pursuing exaggerated damages claims, and unnecessarily prolonging the trials with marginally relevant evidence.

After reviewing the claimed fees and disbursements, the court reduced the amounts sought and fixed costs globally.

Costs of $50,000 all inclusive were awarded to the moving parties against certain plaintiffs, with a small notional costs award payable to additional defendants.

The plaintiffs alleged the existence of a partnership in a training and e‑learning business and sought recognition of partnership interests, constructive trust, and unjust enrichment remedies.

The defendants denied that any partnership agreement had been finalized.

After a lengthy trial turning largely on credibility, the court found that no partnership agreement had ever been concluded, noting the absence of agreed essential terms and the lack of capital contributions.

The court also rejected equitable claims, finding the evidence unreliable and noting that the alleged payments were in fact kickbacks rather than partnership income.

In a related action, the corporate plaintiff failed to establish defamation or intentional interference with economic relations arising from communications to college clients.

Following trial, the plaintiffs recovered $18,645 against a home inspector for failing to report a sloping kitchen floor but were unsuccessful on their principal claim alleging differential settlement of the residence.

The plaintiffs sought full indemnity costs exceeding $139,000, while the defendant argued that costs should be denied or awarded in its favour because the recovery fell within the Small Claims Court jurisdiction and because the plaintiffs failed on the major issue at trial.

The court held that it was reasonable for the plaintiffs to have pursued the action under the ordinary procedure and declined to deny costs under Rules 57.05(1) or 76.13.

However, given the plaintiffs’ lack of success on the central issue and proportionality considerations, their costs were substantially reduced.

Expert disbursements were disallowed and a global costs award was fixed with a set‑off for the defendant’s mid‑trial motion costs.

The plaintiffs purchased a home and subsequently discovered foundation settlement and a sloping kitchen floor.

They sued their home inspector for negligence, alleging failure to identify and report structural defects.

The court found that while the inspector was not negligent regarding the sub-surface soil conditions and differential settlement, he breached the standard of care by failing to effectively report the significant slope in the kitchen floor in his written report.

The plaintiffs were awarded $18,645 in damages for the cost to level the kitchen floor.

Following a motion to set aside an administrative dismissal under Rule 48.14 of the Rules of Civil Procedure, the court addressed the issue of costs.

Although the plaintiff was successful in having the administrative dismissal set aside, the court found that the plaintiff’s unexplained delay, failure to bring the motion promptly, and deficiencies in the evidentiary record significantly complicated the proceeding.

The court held that the defendant was justified in opposing the motion and that the plaintiff’s conduct unnecessarily lengthened and complicated the litigation.

Applying the factors under Rule 57, the court concluded that the defendant should receive costs despite not succeeding on the motion itself.

A reduced partial indemnity costs award was granted to reflect some excess in the claimed time and the plaintiff’s ultimate success on the motion.

Following earlier reasons dismissing a summary judgment motion, the plaintiff sought substantial indemnity costs against the third party under Rule 20.06 of the Rules of Civil Procedure, arguing the motion had been unreasonable.

The court considered whether the moving party’s conduct met the threshold of unreasonableness required to justify substantial indemnity costs.

Despite the absence of cost submissions from the third party, the court found the motion had at least some prospect of success and was not an unreasonable use of the summary judgment procedure.

Costs were therefore awarded on a partial indemnity basis to the plaintiff and fixed in a reduced amount.