Murray Teitel

The appellant appealed a motion judge's order that permanently stayed certain allegations in an assessment of costs proceeding and required her to order transcripts as a condition of proceeding.

The Court of Appeal upheld the stay of allegations relating to the mortgagee's solicitor's alleged refusal to allow mortgage redemption, noting such issues must be litigated between the mortgagor and mortgagee, not on an assessment of the solicitor's costs.

However, the Court set aside the transcript requirement as the necessary transcript was already available, and ordered each party to bear their own costs.

Following a costs endorsement, the applicant sought costs for preparing his costs submissions, arguing that his offers to settle the quantum of costs exceeded the costs ultimately awarded to the respondents.

The applicant relied on Rule 49.02(2) of the Rules of Civil Procedure.

The court dismissed the request, holding that while Rule 49 applies to motions, it does not apply to offers to settle the quantum of costs of a motion.

No costs were awarded to the applicant.

Following the dismissal of the appellant's motion for leave to appeal an order regarding a capacity examination, the respondents sought substantial indemnity costs.

The court declined to award substantial indemnity costs, finding that while the appellant filed an unnecessarily voluminous 90-page factum, it did not create a significant additional burden.

Costs were awarded on a partial indemnity basis, fixed at $8,000 each for two respondents and $5,000 for the third, reflecting the moderate complexity of the issues and the principle of proportionality.

The applicant sought leave to appeal an order dismissing his motion to require his parents to undergo capacity assessments and to allow him to examine his mother for discovery.

The underlying dispute involved the validity of powers of attorney executed by the mother, who suffered from Alzheimer's disease.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motions judge's decision.

The court held that section 79 of the Substitute Decisions Act, rather than section 105 of the Courts of Justice Act, governed the request for a capacity assessment, and that the motions judge properly exercised his discretion in refusing the assessments and discovery.

The appellants appealed a motion judge's decision which found that the respondent did not acquiesce in an alleged conflict of interest and breach of fiduciary duty by her former solicitor.

The Court of Appeal allowed the appeal, finding that the respondent's active participation in 19 days of assessment hearings over 4.5 years constituted acquiescence.

The Court held that it was not open to her to raise the issue for the first time after such a delay, which caused demonstrable prejudice to the assessment process and the solicitor.

The assessment was ordered to proceed without consideration of the conflict of interest allegations.