M. P. Eberhard

In a prolonged neighbour dispute involving drainage and nuisance issues, the moving parties sought further contempt remedies after the responding party repeatedly failed to comply with prior court orders requiring implementation of an engineered drainage solution or payment into court for the work.

The responding party argued that the court‑ordered design was flawed and attempted to relitigate the merits through expert opinions and collateral proceedings.

The court held that a litigant must obey a valid court order until it is set aside through proper appellate processes, regardless of personal disagreement with the underlying remedy.

Applying principles of contempt enforcement and res judicata, the court rejected attempts to revisit issues previously addressed on appeal.

A custodial sanction and compliance conditions were imposed to compel obedience to the outstanding orders.

The defendant brought a motion seeking an order requiring the plaintiff to attend a further defence medical examination by a neurologist regarding Bell’s Palsy allegedly arising from a motor vehicle accident.

The plaintiff opposed the request, arguing that a second defence medical was unnecessary and would delay the scheduled pre-trial and trial.

The court considered the governing principles under Rule 33 and the Courts of Justice Act concerning further medical examinations and emphasized fairness and the need for each party to present appropriate expert evidence.

The court found that the defendant had no prior notice that Bell’s Palsy would be advanced as a causally related injury until a late-served medical report.

In the circumstances, fairness required permitting the defence an opportunity to assess the condition through a further examination.

Following a commercial lease trial between a tenant applicant and a landlord respondent, the court was required to determine the appropriate costs award.

The tenant sought $185,421.51 in post‑trial costs arising from extensive factual analysis required due to the landlord’s inadequate maintenance records and litigation conduct.

The court held that while the tenant had beaten settlement offers and was largely successful, the circumstances did not justify substantial indemnity costs.

Considering the parties’ conduct, the scale of the litigation, and the principles in Rule 57 of the Rules of Civil Procedure, the court fixed costs on an enhanced partial indemnity basis.

Following a motion and cross-motion that resulted in mixed success for both parties, the court invited written costs submissions.

The moving party sought partial indemnity costs exceeding $11,000, while the responding party sought approximately $8,800 or alternatively no order as to costs.

The court observed that the motion prompted the parties to moderate their positions and engage in compromise.

Taking into account the mixed success and proportionality considerations, the court exercised its discretion to fix a lump sum costs award payable to the moving party.

Following a prior partial judgment concerning interpretation of a commercial lease, the court addressed the landlord’s accounting for additional rent allegedly representing property management and maintenance expenses.

The lease did not permit standardized management or administrative fees, and the landlord bore the onus of proving reasonable and proper expenses actually incurred.

The court found the landlord’s records unreliable and insufficient, noting undated documents, inconsistent time sheets, duplicated entries, and indications that records were retrospectively created.

Because the landlord failed to demonstrate that the claimed work was performed or that the charges reflected commercially reasonable costs, most management-related claims were disallowed.

The court concluded the tenant had overpaid additional rent over four years and ordered a refund of $128,712.31, with costs submissions to follow.

The plaintiff brought a productions motion in a contractual dispute concerning a 2007 central financing agreement.

The plaintiff alleged the defendant breached the agreement due to pressure from GM dealers and sought production of documents relating to a proposed Consillium financing structure, GM dealer meeting records, internal credit policies, and redacted communications.

The court found several categories of documents relevant to the pleaded theory and ordered production of documents concerning the creation of Consillium and internal policy materials, including menus of credit policy titles.

The defendant was also required to request relevant records from a dealers’ association and provide sufficient descriptions for documents claimed as privileged.

The motion and cross‑motion resulted in mixed success, with further costs submissions invited.

The defendant brought a motion to dismiss the plaintiff’s action arising from a mortgage enforcement proceeding that had already resulted in default judgment, eviction, and sale of the property.

The plaintiff failed to appear at the motion hearing despite notice and prior scheduling communications with the court.

The court reviewed the statement of claim to determine whether it disclosed a reasonable cause of action and found that the allegations—framed as negligence and related misconduct—were in substance attempts to re‑litigate issues that should have been raised in the earlier mortgage action.

Applying principles of res judicata and abuse of process, the court held that the claim raised no new cause of action and constituted an impermissible collateral attack on a final judgment.

The court ordered that the statement of claim be dismissed unless the plaintiff obtained leave within three weeks to appear and explain her failure to attend.

Following a motion concerning interim support on a mature family law file, the court addressed costs after written submissions.

The respondent to the underlying motion sought full indemnity costs exceeding $37,000, citing the other party’s failure to provide proper financial disclosure and litigation conduct that had prolonged the proceedings.

The court emphasized that frank and complete disclosure is fundamental in family litigation and that failure to provide disclosure may justify investigative costs, including expert reports.

While the court declined to award full indemnity costs due to the presence of a settlement offer, it found the responding party’s conduct justified enhanced partial indemnity costs.

Costs of $25,000 inclusive of disbursements were awarded and made enforceable in the same manner as support.

The defendants moved to set aside a default judgment obtained in a mortgage action.

Applying the three-part test under Rule 19.08 of the Rules of Civil Procedure—delay, explanation for default, and arguable defence—the court found the circumstances surrounding service explained the default and accepted the delay as largely attributable to litigation scheduling and negotiations.

However, the defendants failed to demonstrate a defence on the merits to the existence of the debt under the registered mortgage.

The court declined to set aside the default judgment but ordered a trial of an issue in the nature of a reference to address apportionment issues arising from the broader financial relationship between the parties.

In a family law motion addressing support and disclosure issues, the respondent sought an order striking the applicant's pleadings for repeated failure to comply with court‑ordered financial disclosure and payment obligations.

The court found significant non‑compliance with disclosure orders and drew adverse inferences about the applicant’s income, particularly concerning unreported cash business revenue and personal expenses paid through the business.

While the court declined to strike pleadings due to access‑to‑justice concerns, it relied heavily on the respondent’s evidence and expert accounting analysis to determine income.

The applicant’s income was fixed at $125,000 for interim purposes and the respondent’s at $17,362.

The court ordered increased child support, interim spousal support, and contribution to section 7 expenses, while leaving costs submissions to follow.

Following an appeal of a Small Claims Court decision where the judgment was varied slightly from $1,520 to $1,480, the parties submitted written costs submissions.

The court found that the appellant was not successful on the appeal and denied his request for costs.

The successful respondent was awarded costs of the appeal fixed at $800.

The appellant homeowner appealed a Small Claims Court judgment awarding the respondent painter $1,520 plus costs for unpaid work under an oral contract.

The appellant argued the trial judge erred in calculating the amount owed and in finding that the Consumer Protection Act did not apply to limit the price to the original estimate.

The Divisional Court found a minor mathematical error and reduced the judgment to $1,480, but upheld the trial judge's finding that the Consumer Protection Act did not apply to this type of construction contract.

The appeal was allowed in part to correct the calculation.