Patrick Di Monte

The insurer was successful in its appeal of an arbitration decision that had found the insured suffered a catastrophic impairment.

The Director's Delegate subsequently determined the issue of costs for both the arbitration and the appeal.

Applying the Dispute Resolution Practice Code, the Delegate found the insurer was entitled to its costs due to its success and the insured's conduct which prolonged the proceedings.

The Delegate awarded the insurer $20,000 in total costs, inclusive of disbursements and HST, rejecting the insurer's claim for over $64,000 and noting that transcript costs are generally not recoverable.

Following a motion in civil litigation, the successful responding parties sought costs on a substantial indemnity basis.

The court considered the absence of a Rule 49 offer and found no litigation misconduct or other circumstances warranting elevated costs.

The court rejected claims of over-preparation and noted a lack of genuine compromise in negotiations by certain parties.

Costs were awarded to the successful parties on a partial indemnity basis in a fixed amount inclusive of HST and disbursements.

The defendant moved to dismiss the plaintiffs' 2003 franchise dispute action for delay under Rule 24.01(1)(e), and the plaintiffs brought a cross-motion to restore the action to the trial list.

The court found a period of inordinate and unexplained delay, largely attributable to the plaintiffs' former counsel's neglect.

However, the court also found that the delay caused actual prejudice to the defendant, as key executives involved in the franchise negotiations had left the company during the delay period, creating a substantial risk that a fair trial was no longer possible.

The defendant's motion was granted and the action was dismissed.

The plaintiff contractor brought a motion seeking a preservation order under Rule 45.02 of the Rules of Civil Procedure to secure an alleged constructive trust interest in a residential property that was about to be sold.

The moving party had supplied services and materials for the construction of the property but failed to register a construction lien within the time limits prescribed by the Construction Lien Act.

The plaintiff argued that if the contract were voidable due to non‑registration under the New Home Warranty Program Act, he could assert a constructive trust claim and obtain security through a preservation order.

The court held that the Construction Lien Act governs claims arising from the supply of services or materials to an improvement regardless of whether the claim is framed in contract or constructive trust.

Allowing a preservation order would undermine the statutory lien scheme and permit the plaintiff to circumvent the Act’s deadlines.

The motion was dismissed.

The applicant brought a motion turning on whether two lots were subject to a development restriction contained in paragraph 2(o) of a prior consent order.

Applying ordinary contractual interpretation principles, the court held the restriction was limited to lands described in Schedule A and did not include the disputed lots.

As a result, the respondents were not prohibited from pursuing the proposed minor variance.

The motion was dismissed, the temporary injunction was vacated, and the assessment of damages under the undertaking was referred to the local registrar.

The appellant appealed a summary judgment ordering him to pay $814,318.26 and deliver possession of a residential property to the respondent mortgagee.

The appellant argued there were genuine issues for trial regarding the principal amount he assumed and the respondent's allocation of his mortgage payments.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusions that the appellant assumed the full mortgage amount and that his payments were insufficient to bring the mortgage into good standing.

The moving defendant sought summary judgment dismissing an unjust enrichment claim arising from a residential construction project, arguing she had no beneficial interest in the property and therefore received no enrichment.

The court held that the evidentiary record disclosed a genuine issue requiring a trial on whether the moving defendant was a partner or beneficial participant in the purchase, construction, and sale of the property, particularly given conflicting evidence about her financial advances, involvement in the project, and statements allegedly made to the plaintiff.

The credibility of all three principal witnesses was central and could not be resolved on the written record.

Summary judgment was refused, the action was ordered to proceed expeditiously to trial, a case conference was directed, and costs of $8,000 were awarded to the plaintiff.

Following the dismissal of an appeal from the Small Claims Court regarding a claim for $4,931.92 in unpaid rehabilitation fees, the successful respondent sought costs on a substantial indemnity basis.

The court rejected the request for substantial indemnity costs, finding that a letter asking the appellant to abandon the appeal on humanitarian grounds did not constitute an offer to settle.

Applying the principle of proportionality under Rule 1.04(1.1) of the Rules of Civil Procedure, the court fixed the respondent's partial indemnity costs at $5,000 all-inclusive, an amount roughly equal to the original claim.

The appellant brought a motion for leave to appeal a costs order of $12,500 made against him in a family law proceeding.

He argued that leave was not required because he was seeking a set-off, and that the motion judge erred in assessing success, failing to consider his inability to pay, and failing to provide a mathematical calculation for the award.

The Divisional Court dismissed the motion, finding that leave was required, the motion judge made no errors in principle, and the proposed appeal did not raise matters of general public importance.

Following a successful commercial application for the return of a deposit, the applicant sought costs on a substantial indemnity basis relying on a pre‑litigation letter requesting the return of the deposit.

The respondents opposed costs, arguing the case was uncertain, settlement options had been offered, and the application procedure was unusual.

The court held that the applicant was entirely successful and that the June 30, 2014 letter constituted a valid offer to settle within the meaning of Rule 49 of the Rules of Civil Procedure.

Because the judgment obtained was more favourable than the offer, the cost consequences of Rule 49.10 applied.

Substantial indemnity costs were awarded but reduced from the amount claimed to reflect that Rule 49 provides substantial indemnity, not full recovery.

At a status hearing requiring the plaintiff to show cause why a long-delayed civil action should continue, the court applied the conjunctive test requiring an acceptable explanation for delay and absence of non‑compensable prejudice to the defendants.

The action had experienced approximately ten years of unexplained inactivity between the issuance of the claim and the service of the trial record.

The plaintiff relied on evidence of alcoholism, incarceration, family illness, and lack of funds to explain the delay.

The court held these explanations were unsupported or logically insufficient, particularly where the plaintiff had demonstrated an ability to instruct counsel at other times during the same period.

Having failed to establish an acceptable explanation for the delay, the action was dismissed without considering the prejudice branch of the test.

Former tenants commenced a civil action against their landlord alleging that, following eviction and termination of a residential lease, the landlord trashed or retained personal property left at the premises and sought damages of $100,000 plus punitive damages.

Earlier proceedings before the Ontario Rental Housing Tribunal had found a breach of an agreement to allow additional time for removal of belongings, but the Divisional Court set aside the rent abatement and directed that damages be determined.

At trial, the court found that the plaintiffs failed to prove ownership of the alleged property, failed to establish that the landlord destroyed or retained any goods, and relied on a list of items the court found unreliable and misleading.

The court also found that certain items alleged to be present were not even available for purchase in Ontario at the relevant time.

The plaintiffs therefore failed to establish damages or liability on a balance of probabilities.

A subcontractor brought a simplified procedure summary trial seeking payment for renovation work performed on two public construction projects and claimed against a labour and material payment bond issued by the defendant insurer.

With respect to the first project, the court found the subcontractor proved the debt owed by the general contractor but failed to comply with the notice and timing conditions precedent required to enforce the labour and material bond against the surety.

As a result, the debt was recognized but not enforceable against the insurer.

For the second project, the court found the subcontractor properly complied with the bond notice requirements and proved the amount owing, while the defendant failed to produce reliable evidence of deficiencies or rectification costs.

Judgment was therefore granted against the insurer for the second project only.

The plaintiff brought a pre-trial motion seeking to amend pleadings in two consolidated construction-related actions originally commenced in Small Claims Court.

The requested amendments included increasing the monetary claims above the former Small Claims Court jurisdictional limit, correcting a bond number, asserting rights under a labour and material bond, and adding claims for relief from forfeiture under the Courts of Justice Act and the Insurance Act.

The court held that increasing the quantum of damages already claimed did not constitute a new cause of action and allowed the amendments raising the amounts claimed.

However, the court refused amendments introducing a claim under a labour and material bond where the original pleadings relied on an incorrect performance bond, finding this would introduce a new and statute-barred claim causing presumed prejudice.

The court also rejected the proposed amendments seeking relief from forfeiture because the plaintiff had failed to comply with condition precedent notice requirements and its conduct in delaying the amendment was unreasonable.

In a brief appeal book endorsement, the court addressed only the disposition of the appeal and appellate costs.

Although counsel for the appellant had agreed to pay the bank $3,000 in costs, the court held that the bank was not entitled to any costs because the appellant would have been at least partially successful on appeal.

The court also held that another responding party was not entitled to costs because no relief had been sought against him and the settlement improved his position vis-à-vis the bank.

The appeal was dismissed on consent.

The appellants appealed a Master's order declaring their construction lien expired for being registered more than 45 days after the last date of work.

The appellants argued that section 11 of the Limitations Act, 2002 extended the time limit for registration due to ongoing mediation efforts.

The Divisional Court dismissed the appeal, holding that a construction lien is not a 'claim pursued in court proceedings' under the Limitations Act, and applying section 11 would conflict with the complete code and policy objectives of the Construction Lien Act.

Following the dismissal of the defendants’ motion and the granting of certain relief to the plaintiff, the court addressed the issue of costs.

The plaintiff sought costs on a substantial indemnity basis for legal fees and disbursements incurred on the motion.

The court deducted time attributable to related Court of Appeal proceedings but otherwise accepted the majority of the hours claimed.

The court awarded substantial indemnity costs, finding the total amount proportionate to the significant sums at stake in the litigation.

A request by defence counsel for an additional ruling concerning mortgage accounts was refused as the issue had not been before the court on the motion.

A secured creditor applied for judgment against individual guarantors following the borrower corporation’s receivership.

The respondents had executed personal guarantees securing corporate indebtedness totaling $140,000.

Each guarantor attempted to shift responsibility to the other and argued the creditor should first exhaust recovery against the corporation.

The court held the guarantees expressly permitted the creditor to proceed directly against the guarantors without exhausting recourse against the principal debtor.

Finding no tenable defence, the court granted judgment against both guarantors for the guaranteed amounts plus interest and costs.

The appellant appealed an order dismissing his motion to set aside a settlement incorporated into a previous court order.

The settlement required the appellant to pay an equalization amount to the respondent.

The appellant argued the settlement should be conditional on his ability to pay without selling his property in Jamaica.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the motion judge's decision and noting that the appellant's reluctance to sell the property did not justify failing to pay the equalization amount.

The appellants appealed an order refusing to allow them to withdraw an admission in their affidavits that the respondents had a right-of-way over the subject lands.

The appellants argued they recently discovered a break in the chain of title.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that permitting the withdrawal would prejudice the respondents by allowing the damages issue to be determined on a different basis than the liability issue.