Michael S. O’Neill

This decision addresses costs following a partially successful summary judgment motion brought by the defendant.

The defendant sought full summary judgment, but the court dismissed only the negligence claims, allowing nuisance and strict liability claims to proceed to trial.

Both parties sought costs.

The court found the defendant's success limited and the plaintiff successfully defended the motion on other issues.

The court also rejected the defendant's argument that the plaintiff acted unreasonably in responding to a request to admit.

Exercising its discretion, the court awarded partial indemnity costs to the plaintiff, finding the requested amount reasonable.

The plaintiffs sought leave to appeal an interlocutory order that allowed them to amend their statement of claim to increase damages from $550,000 to $2,500,000, exposing the defendants personally beyond their $1 million insurance policy limits.

The motion judge granted the amendment but imposed terms, including suspending prejudgment interest on the increased amount until the date of the amendment.

The plaintiffs argued this term was punitive and conflicted with existing case law.

The Superior Court of Justice dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motion judge's exercise of discretion to compensate the defendants for the prejudice caused by the late amendment.

The solicitors for the corporate plaintiff brought a motion to be removed as solicitors of record.

The plaintiff corporation was owned by three individuals who were in disagreement and unable to provide collaborative instructions.

The solicitors also cited an unpaid retainer and a conflict of interest arising from their representation of one of the shareholders in a related matter.

Two of the shareholders opposed the motion, arguing prejudice to the corporation.

The court granted the motion, finding that the solicitors were in an impossible position due to the lack of instructions, conflict of interest, and unpaid fees, subject to the condition that they fulfill outstanding undertakings from discoveries.