Monique Métivier

Following a summary judgment decision in a dispute arising from a fire and the interpretation of a commercial lease, the successful party sought partial indemnity costs exceeding $180,000 including disbursements.

The responding party argued the claimed costs were excessive, citing duplication of counsel, work unrelated to the summary judgment motion, and inflated disbursements.

The court agreed that the bill of costs was excessive and reduced both legal fees and non‑lawyer fees, and excluded certain disbursements not permitted under Tariff A. The court fixed reasonable legal fees and limited disbursements, substantially reducing the total amount sought.

Following a prior judgment, the applicants sought an order requiring the respondent to pay costs incurred for a motion heard on June 17, 2014.

The court found the applicants had largely succeeded and were therefore entitled to costs.

Because the applicants represented themselves at the hearing, full solicitor’s fees were not awarded.

However, the court accepted that legal consultation occurred and fixed legal fees and disbursements in modest amounts.

The respondent was ordered to pay the assessed costs.

Members of a community association brought an application alleging mismanagement and lack of financial transparency by the association’s president and executive leadership.

The applicants relied on an audit report identifying deficiencies in financial controls, missing documentation for expenditures, and risks of fraud.

The respondent denied the allegations but provided limited evidentiary support and attempted to rely on materials filed late.

The court found the applicants’ concerns credible and concluded that significant governance and transparency issues existed.

The court ordered the association to convene a general meeting, present financial accounts with supporting documentation, appoint independent auditors, and establish a new statute‑review commission, but declined to dissolve the electoral commission.

The Crown sought admission at trial of the complainant’s testimony from the preliminary inquiry after the complainant died before trial.

The accused argued that admission of the prior testimony would be unfair because cross‑examination at the preliminary inquiry had a different purpose and was not as extensive as it would have been at trial, raising concerns about reliability and prejudice.

The court considered s. 715(1) of the Criminal Code and the principled hearsay framework, including necessity and threshold reliability.

Finding that the complainant testified under oath at the preliminary inquiry in the presence of the accused and was subject to cross‑examination without restriction, the court concluded that the statutory requirements and reliability threshold were met.

The prior testimony was therefore admissible, with ultimate weight to be determined at trial.

The applicant mother brought a motion to vary an interim custody and access order concerning the parties’ young child, arguing that a recent parenting assessment constituted a material change in circumstances.

The expert report raised concerns that the father’s conduct toward the child, including involving the child in parental conflict and making alarming statements, risked emotional harm and suggested emerging parental alienation.

The father challenged the report and obtained a separate psychosocial evaluation based primarily on his own account.

The court accepted the parenting assessment as the only objective expert evidence and found a material change in circumstances.

Custody was granted to the mother with the father’s access supervised pending further proceedings.

Following acceptance of an offer before a scheduled trial, the parties sought a judicial determination of costs, pre-judgment interest, and the proper wording of a release.

The court assessed relative success on issues including the quantum of costs previously awarded, the appropriate start date for pre‑judgment interest, and the permissibility of additional confidentiality and derivative action clauses in the release.

The plaintiff was more successful overall, particularly in resisting unilateral additions to the release.

A prior Rule 49 offer did not trigger adverse cost consequences because the judgment exceeded the offer and the proposed release terms had not been agreed upon.

Applying Rule 57 cost factors, the court fixed the plaintiff’s costs of the motion at $9,000 inclusive.

The plaintiff executive brought a wrongful dismissal action following termination without notice after approximately six years of employment.

The employer initially alleged cause but later conceded none existed.

The court applied the Bardal factors and determined that a reasonable notice period was 13 months but reduced it to 12 months due to limited mitigation efforts.

Damages were calculated using the plaintiff’s most recent accepted salary of $70,000 rather than a prior higher salary.

The court also awarded reimbursement for expenses and RRSP contributions, rejected a limitations defence regarding those expenses, and ordered the defendant to purchase gifted shares from the plaintiff at $160,000.

Following settlement of an environmental claim between the plaintiff and a third party for $30,000 shortly before trial, the parties were unable to agree on the wording of the release and the quantum of costs.

The court considered whether a confidentiality clause and an expanded derivative indemnity enforcement clause should be included despite not being specified in the settlement offer.

The court held that such terms cannot be implied where they were not negotiated as part of the settlement agreement.

The court also determined the appropriate quantum of partial indemnity costs and assessed proportionality and fairness in light of the litigation circumstances.

Costs were fixed at $38,000 with pre‑judgment interest calculated according to the settlement terms.

Following a motion concerning temporary child and spousal support, the court addressed the issue of costs.

The applicant sought full recovery costs of $17,283 after obtaining support orders exceeding her prior offers to settle.

The respondent argued each party should bear their own costs or that any award should be substantially reduced, asserting that the claimed fees were excessive and noting the applicant’s tax deductibility of legal fees.

The court found the applicant presumptively entitled to costs but declined to award substantial indemnity costs.

After adjusting the claimed amount and considering tax deductibility under the Courts of Justice Act, the court fixed costs at $14,000 and reduced them by the applicant’s marginal tax rate.

The plaintiff alleged medical negligence arising from a bilateral varicocelectomy performed to address infertility, after which he lost a testicle.

The court considered whether the physician failed to obtain informed consent, negligently performed the surgery, or breached the standard of care in post‑operative management.

The court found that the risk of losing a testicle was extremely remote and not a material risk requiring disclosure, and that a reasonable patient would have proceeded with the surgery even if informed of that possibility.

Expert evidence established that the surgical method used was an accepted practice within the profession and that the procedure was performed competently.

However, the court concluded that post‑operative care became negligent when the patient returned to hospital with significant pain and investigation was delayed.

The plaintiff, a judgment creditor, brought an action for oppression and fraudulent conveyance against the corporate debtor, a newly formed successor corporation, and their sole director.

The director had transferred the debtor's business and assets to the new corporation to avoid paying a Wisconsin judgment and an Ontario costs order.

The court found the conduct oppressive and the transfer a fraudulent conveyance, piercing the corporate veil to hold the director personally liable alongside the successor corporation for the judgment debt.

The respondent brought a motion to set aside a divorce order obtained at an uncontested hearing after she had been noted in default for failing to file an Answer.

The court applied the test for setting aside a default judgment by analogy to Rule 19.08 of the Rules of Civil Procedure, as permitted by the Family Law Rules.

The court found the motion was brought promptly, that the moving party provided a reasonable explanation for the default, and that there was an arguable case regarding the equalization of net family property and ongoing support issues.

Given the existence of unresolved financial issues, the court concluded that the matter should proceed with full participation of both parties.

The noting in default and the divorce order were set aside and the parties were directed to proceed to a settlement conference.

The defendant brought a motion to dismiss a civil action on the basis that the court lacked jurisdiction because the dispute arose under a collective agreement and therefore fell within the exclusive jurisdiction of labour arbitration.

The underlying action concerned an alleged overpayment of approximately $48,000 to a former employee resulting from administrative error despite an agreement that the employee’s salary would be “red-circled.” The court considered whether the essential character of the dispute arose from the interpretation, application, administration, or violation of the collective agreement.

Given that the employee was no longer employed, the memorandum governing the salary arrangement was not incorporated into the collective agreement, and the union itself took the position that the matter was not arbitrable, the court held the dispute did not fall within arbitral jurisdiction.

The motion to dismiss for lack of jurisdiction was therefore denied.

The defendant lawyer brought a summary judgment motion dismissing a negligence action as statute‑barred under the Limitations Act, 2002.

The plaintiffs alleged they intended to acquire a 50 percent ownership interest in a corporation but instead obtained only 49 percent, and argued the limitation period was delayed because they believed the lawyer would resolve the issue.

The court held the claim was discovered when the plaintiff became aware of the altered share structure and contemplated legal action, as evidenced by contemporaneous emails.

Statements discouraging litigation or attempts to resolve the matter did not prevent the limitation period from running.

The action commenced more than two years later was therefore barred.

The applicant school board sought judicial review of an arbitrator's decisions allowing a union grievance regarding the calculation of instructional minutes under a collective agreement.

The dispute centered on whether 'early bells' at certain schools required students to enter before the published start time, thereby exceeding the 300-minute instructional day cap.

The Divisional Court quashed the arbitrator's decisions, finding that the arbitrator fundamentally misapprehended the nature of the grievance and the evidence, and unreasonably awarded compensation without proof that teachers worked additional minutes or performed different duties.

The matter was remitted to a different arbitrator.

The applicant, a police officer, sought judicial review of a decision upholding his dismissal for discreditable conduct after he assaulted four officers.

He argued the Commission failed to consider the duty to accommodate his alleged disabilities, including alcohol addiction and post-traumatic stress disorder.

The Divisional Court dismissed the application, finding no evidence that his conditions rendered him unable to perform his essential duties, and concluded the penalty of dismissal was reasonable.

Civil action arising from a fatal motor vehicle collision following a police pursuit conducted by officers of a First Nations police service operating under a quadripartite policing agreement among federal and provincial governments and a First Nation.

Provincial governments moved for summary judgment arguing they could not be vicariously liable for the conduct of the police officers because they exercised no operational control.

The court held that the complex governance structure, degree of governmental oversight, and the unique jurisdictional circumstances raised factual issues regarding control, partnership, and potential vicarious liability that required a full evidentiary record at trial.

The plaintiffs also sought to amend their statement of claim to allege negligence for failure to implement recommendations from a prior policing audit; most amendments were permitted.

Summary judgment was refused and leave to amend was largely granted.

Following an unsuccessful injunction application arising from a shareholder dispute within a closely‑held corporation, the court addressed costs.

The litigation stemmed from a contested annual general meeting and banking resolution allegedly used to remove an equal shareholder’s rights.

The court found the proceedings were effectively directed by a non‑party shareholder who sought to advance his personal interests through the corporation.

Exercising its inherent jurisdiction, the court ordered that shareholder personally liable for costs payable to both the defendant financial institution and the successful intervenor shareholder, awarding substantial indemnity costs in favour of the intervenor.

Following a successful defamation action in which the defendant’s counterclaim was dismissed, the plaintiff sought costs on a substantial indemnity basis.

The defamatory statements alleged dishonesty, fraud, and untrustworthiness and were disseminated by email to numerous recipients.

The court held that substantial indemnity costs were appropriate where unfounded allegations of fraud and dishonesty seriously prejudicial to reputation were advanced and maintained in pleadings.

However, the court found the amount claimed excessive given modest damages and potential duplication of work between senior and junior counsel.

Costs were fixed at a fair and reasonable all‑inclusive amount.

The plaintiff furniture retailer brought a motion for summary judgment in a defamation action arising from an email circulated by the defendant accusing the business of dishonesty and urging recipients to avoid it.

The defendant raised the defence of fair comment and advanced a counterclaim for slander based on communications made by the plaintiff to her employer and father.

The court held that the email was defamatory and that the defence of fair comment was unavailable because the statements were not on a matter of public interest, were not based on proven facts, and were motivated by malice.

The court concluded that there were no genuine issues requiring a trial and that summary judgment was appropriate.

Judgment was granted for the plaintiff with damages fixed at $15,000 and the defendant’s counterclaim dismissed.