Michael G. Emery

This endorsement concerns the costs award following a professional negligence action brought by the plaintiff, Darren John, against his former lawyer, Norbert Bartels.

The jury found that John failed to prove the standard of care Bartels allegedly breached, leading to the dismissal of the action.

Bartels, as the successful party, sought partial indemnity costs totaling $41,885.85.

The court, applying Rule 57.01 factors and the principle of proportionality under Rule 1.04(1.1), determined that the actual amount in dispute was $19,500, not the $1,000,000 claimed.

Despite Bartels' success and the reasonableness of his counsel's rates, the court reduced the costs award to $18,500, emphasizing that costs must be proportionate to the amount involved and the complexity of the issues, and fair and reasonable to the unsuccessful party.

The court also noted the plaintiff's conduct in prolonging the trial and failing to provide disclosure.

The appellants appealed a motions judge's decision ordering the liquidation of a closely-held corporation as a remedy for oppression and breach of fiduciary duty.

The appellants argued that the remedies of disgorgement and constructive trust were sufficient and that liquidation was punitive.

The Divisional Court dismissed the appeal, finding that the motions judge properly exercised his discretion to order liquidation because the trust underpinning the shareholders' agreement had been destroyed, the appellants had committed grave breaches, and the business was no longer operating as originally intended.

The court also upheld the brief two-week election period granted to the appellants to purchase the respondent's shares.

This endorsement addresses the determination of costs following the successful dismissal of the plaintiffs' action against the defendants Stewart and Indicom on appeal.

The Court of Appeal had referred the costs below back to the motion judge.

The court applied principles for assessing costs, including the custom that costs follow the event and the requirement for fairness and reasonableness.

It was determined that costs should be awarded as if the defendants had been wholly successful at the summary judgment stage.

The court adjusted the hourly rate for the defendants' counsel and reduced claimed hours for settlement discussions and observing other parties' motions, ultimately awarding partial indemnity costs for both the summary judgment motion and the action to the defendants.

The plaintiff in a construction lien action brought a motion to compel the defendant to serve an affidavit of documents and attend examinations for discovery before the plaintiff delivered responding materials to the defendant's motion for summary judgment.

The court granted leave to bring the motion but dismissed the request for an affidavit of documents.

The court held that under the amended Rules of Civil Procedure, there is no automatic right to an affidavit of documents without a discovery plan, and requiring one in the face of a summary judgment motion would be disproportionate and contrary to the modern approach to summary judgment.

The defendants brought motions to dismiss or stay the plaintiff's action and a related application due to the plaintiff's and its principal's failure to pay multiple prior costs awards totaling over $200,000.

The principal, acting as a self-represented litigant, argued that the defendants were partners and thus liable for the costs, and relied on a corporate indemnity.

The court rejected these arguments, applying the Rana principles to find that impecuniosity and self-representation do not excuse non-compliance with court orders.

The court dismissed the action against the moving defendants and stayed the related application, but declined to strike the plaintiff's affidavits under Rule 25.11.

The applicant mother brought an application for judgment against the respondent daughter for a $500,000 loan.

The applicant had mortgaged her home to provide the funds, and the respondent agreed to make the mortgage payments.

The respondent later refused to make further payments or repay the principal.

The court found an anticipatory breach of the loan agreement and unjust enrichment, granting judgment for the outstanding mortgage balance and payments made by the applicant.

Punitive damages were denied, but substantial indemnity costs were awarded due to the respondent's egregious conduct.

The applicant wife commenced a divorce application in 2011, including claims for spousal support and equalization.

A temporary order in 2011 required the respondent husband to pay spousal support and restrained him from dissipating RSP funds.

The respondent ceased support payments in July 2018 due to health and employment issues, then moved to terminate or reduce support and stay arrears, and to withdraw funds from his RSP accounts.

The applicant cross-moved to dismiss the respondent's motion, for interim disbursements, and for a non-dissipation order.

The court addressed the respondent's request to reduce/stay support and the applicant's request for a non-dissipation order.

The respondent established a prima facie case for reduced support due to changed circumstances but failed the "clean hands" test by unilaterally stopping payments and transferring/withdrawing RSP funds in violation of the 2011 order.

Consequently, the respondent's motion to reduce or stay temporary spousal support was dismissed.

The applicant's cross-motion for a non-dissipation order was granted, prohibiting further dissipation of RSP funds, with specific exceptions for ongoing support payments and a partial payment of arrears.

The balance of arrears was stayed pending trial.

The applicant, Carlene Charles, sought interim support from the estate of her late husband, Lennard Charles, as a dependant under the Succession Law Reform Act (SLRA).

Prior to his death from terminal cancer, Mr. Charles significantly altered his will and transferred assets, reducing the estate's value and Ms. Charles's inheritance.

The Estate opposed the motion, arguing Ms. Charles had no need for support given her consistent income, which exceeded her husband's in his final years, and that Mr. Charles's actions were reasonable in light of their separation.

The court applied the test for interim support under s. 64 of the SLRA, requiring the applicant to demonstrate need and entitlement.

The court found Ms. Charles was not in need of support at the time of her husband's death, as her income was higher, and her claims were largely property-based rather than income-based.

The motion for interim support was dismissed, but the Estate was ordered to reimburse Ms. Charles for excess interest paid on a line of credit.

The plaintiff estate sought leave to amend its statement of claim to add specific statutory particulars, including sections of the Statute of Frauds and other legislation, to support its claim for an interest in property.

The defendants opposed, arguing the amendments constituted new claims barred by a limitation period.

The court granted the motion, holding that the proposed amendments merely particularized existing factual allegations and did not introduce new causes of action, thus not being statute-barred.

The applicants, members of a church congregation, brought a motion to strike portions of affidavits filed by the respondent directors and other congregation members in an underlying application.

The application seeks to determine corporate membership, election of directors, and leave for a derivative action against current directors of Kingdom of Heaven Embassy Ministries Inc. The court considered Rules 25.11 and 39.01(5) of the Rules of Civil Procedure.

The court granted the motion in part, striking numerous paragraphs from the respondents' affidavits that were deemed irrelevant, scandalous, or vexatious, particularly those impugning the character or conduct of the former pastor, Mr. Somers.

Leave was granted for the respondents to file amended affidavits.

Kimberly DeBon, a teacher, sued Hillfield Strathallan College (HSC) for constructive dismissal, alleging a poisoned work environment due to marking disputes, lack of accommodation, and property tampering.

HSC moved for summary judgment to dismiss the action.

The court applied the two-part test for constructive dismissal from Potter v. New Brunswick Legal Aid Services and the objective test for a poisoned workplace from Shah v. Xerox Canada Ltd. The court found no evidence that HSC's conduct amounted to a substantial breach of the employment contract or created a poisoned work environment.

The individual grounds for constructive dismissal were not established, nor was a causal link between earlier events and the resignation.

The motion for summary judgment was granted, and the action was dismissed.

The plaintiff corporation, 1316223 Ontario Inc. (operating as 1,000,000 Comix), brought a motion for the interim recovery of inventory from the defendant, Kostas Giancoulas, or, in the alternative, for its preservation.

The defendant brought a cross-motion for a mandatory order to return inventory to him, asserting personal ownership and seeking to pierce the corporate veil.

The court dismissed the plaintiff's motion for interim recovery due to insufficient description and valuation of the property.

The defendant's cross-motion was also dismissed, as he failed to establish a strong prima facie case for ownership or grounds to pierce the corporate veil.

However, the court granted the plaintiff's alternative request for an interim preservation order, requiring the defendant to preserve all inventory in his possession pending trial, recognizing the significant financial claims against the business.

The plaintiff, Pelivan Muscaj, brought a motion under Rule 37.14 to set aside a registrar's order dismissing his action for delay, issued due to failure to set the action down for trial by the deadline under Rule 48.14.

The court applied the four-part Reid factors (satisfactory explanation for delay, intention to prosecute, timeliness of motion, and prejudice to defendant) using a contextual approach.

The court found the plaintiff failed to provide a satisfactory explanation for the 17-month litigation delay and did not offer satisfactory evidence of a continuing intention to prosecute the action diligently.

Furthermore, the plaintiff did not demonstrate that the defendant would not suffer significant prejudice.

Consequently, the motion to set aside the dismissal was denied.

The moving defendants sought an order for security for costs against the Estate of Gaetano Lo Faso under Rule 56.01(1)(d), arguing the Estate was a nominal plaintiff due to its status as a section 38 plaintiff under the Bankruptcy and Insolvency Act and its lack of assets.

The court dismissed the motion, finding that the Estate, as the sole judgment creditor pursuing a claim assigned by the trustee, had a substantial interest in the litigation and was not a nominal plaintiff.

The court also considered access to justice, noting that denying the Estate the right to litigate due to lack of assets would be unjust.

The plaintiffs brought an action for damages arising from the breach of a commercial sublease after being locked out of their pharmacy business.

The defendants were noted in default and the matter proceeded as an uncontested trial.

The court found the corporate sublandlord liable for breach of contract and one of its directors personally liable for inducing the breach.

Claims for fraud and mental distress were dismissed.

The plaintiffs were awarded $160,000 in damages and $25,000 in costs.

During an adjourned family law trial, the respondent father brought a motion to expand his interim access to the parties' four-year-old child.

The father argued the current schedule caused the child emotional distress and alienation, while the applicant mother provided contradictory evidence that the child was thriving and well-adjusted.

The court dismissed the motion, finding no material evidence of an intervening event or that a change to the status quo was required in the child's best interests prior to the resumption of the trial.

The offender was convicted by a jury of importing 4.6 kilograms of opium into Canada, concealed inside an air compressor shipped from Iran.

The Crown sought a five-year sentence, while the defence sought three to three and a half years, citing the offender's status as a first-time offender and the recent cancer diagnosis of his wife as a collateral consequence.

The court found insufficient evidence to reduce the sentence based on collateral consequences and sentenced the offender to four years and six months imprisonment, along with a ten-year weapons prohibition and a DNA order.

The plaintiff tenant brought a motion for an interlocutory injunction to restrain the defendant landlord from terminating a commercial lease and taking possession of the premises, and for a declaration that it validly exercised its option to renew.

The landlord had refused to renew the lease, alleging the tenant failed to duly and regularly pay percentage rent based on an audit.

The court dismissed the motion, finding the tenant failed to meet the threshold of showing a serious issue to be tried or a strong prima facie case that it had satisfied the preconditions for renewal, as the evidence showed a history of late rent payments and no waiver by the landlord.

The accused was charged with robbery following a home invasion where three individuals stole electronics and a wallet.

The Crown's case relied entirely on circumstantial evidence, specifically a single partial fingerprint found on a solarium door frame that matched the accused.

None of the victims or co-accused could identify the accused.

Applying the principles of circumstantial evidence, the court found that the Crown failed to prove beyond a reasonable doubt that the accused left the fingerprint during the robbery, as there were other plausible explanations for its presence.

The accused was found not guilty.

The Crown applied under the Civil Remedies Act for the civil forfeiture of a rural property, alleging it was used as an instrument of unlawful activity after police discovered 723 alleged marijuana plants on the premises.

The property owner opposed the application, arguing he had no knowledge of the grow operation and was a responsible owner.

The Superior Court of Justice dismissed the application, finding the Crown failed to prove the seized plants were actually marijuana, as no Health Canada certificate was provided.

Furthermore, the court held that the owner met the burden of proving he was a responsible owner and that forfeiture would clearly not be in the interests of justice.