N. Melchiorre

This decision addresses the costs of a dismissed summary judgment motion.

The defendant's motion for summary judgment, arguing the plaintiff's claim was statute-barred, was dismissed.

The plaintiff, as the successful party on that motion, sought substantial indemnity costs.

The court, applying Rule 20.06 and Rule 57.01, determined that substantial indemnity was not warranted due to the absence of bad faith or unreasonable conduct.

The court fixed the plaintiff's costs at $7,500.00 plus HST, payable by the defendant, finding the plaintiff's claimed costs excessive and disallowing certain disbursements as overhead.

The Applicant, Ms. Baxter, sought an order for costs against the Respondent, Mr. Pykari, related to Mr. Pykari’s dismissed motion to vary child and spousal support on a temporary basis.

The court awarded Ms. Baxter costs in the amount of $8,500, inclusive of fees, disbursements, and HST.

The decision applied family cost rules, emphasizing the presumption that a successful party is entitled to costs, and considered factors such as the parties' behaviour, the complexity of issues, and proportionality.

The court found that Mr. Pykari's original motion was best left for trial due to insufficient evidence and dated income information, and noted that both parties shared responsibility for delays and lack of disclosure, which influenced the final costs award.

The respondent sought to vary interim child and spousal support orders, arguing for annual adjustments to child support and termination or reduction of spousal support due to decreased income and accumulated arrears.

The applicant opposed, arguing the issues were for trial due to complex income determination, including the respondent's business income and potential imputation of income to both parties.

The court dismissed the motion, finding insufficient evidence to determine income for support purposes and that the issues were best left for a full trial.

The defendant, Terry Dyck, brought a motion for summary judgment seeking to dismiss the plaintiff, Warren Hughes's, claim on the grounds that it was statute-barred by the Limitations Act, 2002.

The parties, both former investment advisors, had entered into a Joint Advisory Agreement which dissolved upon the termination of Dyck's employment.

Hughes subsequently filed a claim against Dyck for breach of contract, misrepresentation, and breach of fiduciary duty.

The court applied the principles for summary judgment from Hryniak v. Mauldin and the discoverability principles from the Limitations Act.

The court found that there were genuine issues requiring a trial, including the need to weigh evidence and assess credibility.

The motion judge concluded that the earliest date triggering Hughes's claim was his own termination from Wellington, or alternatively, Dyck's termination, both of which fell within the two-year limitation period.

Consequently, the motion for summary judgment was dismissed.

The plaintiff, a renovation company, brought a motion seeking a Certificate of Pending Litigation (CPL) against a residential property owned by the defendant, who was the mother-in-law's son-in-law.

The plaintiff claimed over $200,000 for renovation services and materials provided to the property.

The defendant asserted the work was deficient and had listed the property for sale.

The court dismissed the motion, finding that the plaintiff's claim was for money damages arising from a construction contract, not for an interest in land.

The court held that the plaintiff's failure to perfect its construction lien rights could not be circumvented by seeking a CPL or by invoking equitable remedies like constructive trust, as this would subvert the statutory scheme of the Construction Lien Act.