Michael Shell

Following a successful summary judgment motion and a related failed consolidation motion across two related civil actions, the court determined the appropriate costs awards.

The successful plaintiffs sought substantial costs exceeding $670,000 based on partial indemnity prior to an offer to settle and substantial indemnity thereafter under Rule 49 of the Rules of Civil Procedure.

The court accepted that the offer to settle triggered substantial indemnity costs but found the overall request disproportionate to the complexity and expectations of the losing party.

The requested amount was reduced by half while still recognizing the Rule 49 consequences.

In the related action, defendants resisting consolidation were awarded substantial indemnity costs due to litigation tactics that unnecessarily increased complexity.

The plaintiffs brought a motion for summary judgment to recover unpaid fees under a consulting agreement and returns under a letter of credit agreement related to a wind power project.

The defendants resisted, arguing there were credibility issues requiring a trial and challenging the constitutionality of Rule 20 of the Rules of Civil Procedure.

The court found no genuine issues of credibility, as the defendants' assertions contradicted the clear documentary evidence.

The court also dismissed the constitutional challenge, holding that Rule 20 does not violate section 7 of the Charter or unwritten constitutional principles of judicial independence.

Summary judgment was granted in favour of the plaintiffs.

The moving party brought a motion to stay an employer’s application seeking declaratory relief that an employee’s termination following maternity leave occurred for valid business reasons.

The employee had already filed a human rights complaint alleging discrimination based on sex and pregnancy arising from the same termination.

The court held that the employer’s Rule 14 application constituted a pre‑emptive collateral attack and an abuse of process because it forced the employee to litigate identical issues in parallel proceedings and effectively attempted to circumvent the Human Rights Tribunal of Ontario process.

The court emphasized that the tribunal had jurisdiction and expertise to determine whether the termination violated the Human Rights Code and that permitting the court application would encourage forum shopping and inconsistent results.

The application was permanently stayed.

The respondents brought a motion to strike portions of an affidavit filed by the applicant in an application seeking to quash a municipal by-law under the City of Toronto Act.

The court had previously struck portions of an earlier affidavit for containing irrelevant historical allegations and improper innuendo about prior municipal actions.

On the renewed motion, the respondents argued the revised affidavit continued to include irrelevant references to earlier by-laws and municipal initiatives.

The court held that most of the objectionable material had been sufficiently sanitized and could remain as factual background potentially relevant to the issues, including whether the impugned by-law conferred a prohibited bonus.

However, one paragraph expressing the deponent’s concerns about public funds used in 2000 was struck as irrelevant.