Patrick J. Flynn

This endorsement addresses costs for two intertwined actions.

The court determined costs following a substantial judgment in favour of the plaintiff in a main action and a successful defence against a slander action.

Substantial indemnity costs were awarded against the defendants in the main action due to fraudulent conduct and the inappropriate use of a secondary action as a "gag and chill" defence.

Costs were also awarded for the successful defence of the slander action, with a partial indemnity award granted to one defendant for their successful defence in the main action.

The plaintiff, Heart Zap Services Inc., sought summary judgment against its insurer, Lloyd's Underwriters, for $37,120.50 under an all-risks commercial insurance policy.

The claim arose from a fraudulent order for defibrillator units.

Lloyd's denied coverage, arguing the loss did not occur at an insured location, was not a covered type of loss (voluntary surrender to fraudster), and was excluded as a conditional sale.

The court granted summary judgment to the plaintiff, finding the loss occurred at the insured location, constituted a direct physical loss as there was no valid contract of sale due to fraud, and the conditional sale exclusion did not apply as title was not intended to be withheld.

The court declined to award punitive damages, finding the insurer's denial, while incorrect, did not meet the high threshold for malicious or high-handed conduct.

This trial involved two consolidated actions: a debt action (C-705-17) by Alexander Michel against Franz Kramer, Gunther Kramer, and Spirit Financial Inc. for over $2 million in loans, and a slander action (C-728-15) by Franz Kramer, Christa Schmidt, and Gunther Kramer against Alexander Michel.

The court found a debtor/creditor relationship between Kramer and Michel, concluding that Michel's advances were personal demand loans with 6% interest.

The court rejected Kramer's claims of investment and found his explanations for losses to be fraudulent, attributing a disproportionate share of losses to Michel.

Judgment was granted against Franz Kramer and Spirit Financial Inc. for the outstanding loan amounts.

The debt action against Gunther Kramer was dismissed.

The slander action against Michel was also dismissed due to a lack of credible evidence linking Michel to the alleged harassment and threats, with the court finding it to be a tactic to thwart Michel's legitimate debt claim.

The plaintiffs, having settled a slip and fall claim for $7,500 after 75% contributory negligence, sought costs of over $43,000.

The defendant argued the claim was disproportionate.

The court disallowed several disbursements, including ATE insurance and various treatment costs, and significantly reduced the claimed legal fees, fixing total costs at $14,926.57.

The court also declined to intervene on the prejudgment interest calculation previously set by another judge.

The plaintiff, Bradley Clayton Hunt, moved for a declaration that he was an "insured person" under the Insurance Act and that the defendant, Peel Mutual Insurance Company, was obligated to defend and indemnify him.

This arose from a motor vehicle collision where Hunt and his daughter were passengers.

Hunt's daughter subsequently sued him, alleging negligent parenting.

The defendant insurer denied coverage, arguing that the allegations of negligence against Hunt did not involve the "use or operation" of the vehicle as required by section 239 of the Insurance Act.

The court dismissed the plaintiff's motion, finding that there was no direct or proximate causal relationship between Hunt's alleged negligent acts (negligent parenting) and the use or operation of the vehicle, thus not triggering the duty to defend.

The applicant, a police officer, sought an anonymity order and a publication ban for an upcoming mandatory inquest into a death following his use of force, citing alleged threats to his safety on social media.

The court dismissed the application, emphasizing the paramountcy of the "open court" principle and the mandatory nature of section 32 of the Coroner's Act, which stipulates that inquests shall be open to the public with only two specific exceptions not applicable to this case.

The court found no evidence of specific threats constituting a real and substantial risk to justify overriding the statutory requirement for a public inquest.

The court issued a costs ruling following successful motions by the applicant.

The applicant was found to be fully successful and entitled to costs.

The respondent's arguments for deductions, including legal fees incurred prior to a specific date and an earlier accepted offer, were considered.

The court awarded costs of $16,293.37 to the applicant, to be deducted from the respondent's share of the matrimonial home equity.

The appellant appealed her conviction for failing to provide a breath sample into an Approved Screening Device, contrary to section 254(2)(b) of the Criminal Code.

The appeal was based on three grounds: the trial judge's alleged error in relying on roadside utterances for credibility assessment, a misapprehension of evidence regarding the appellant's hearing, and the unreasonableness of the verdict due to an alleged lack of unequivocal refusal.

The court dismissed all grounds of appeal, finding no error in the trial judge's reasoning, no material misapprehension of evidence, and abundant evidence of unequivocal refusal.

The Applicant sought summary judgment to enforce an offer to settle made by the Respondent, which the Respondent's new counsel attempted to repudiate due to non-compliance with subrule 18(4) of the Family Law Rules (lack of the Respondent's personal signature).

The court found that a binding agreement had been formed based on ordinary contract law principles, as there was clear offer, acceptance, and consensus on all essential terms, and the parties had acted in furtherance of the agreement.

The Applicant's motion for summary judgment was granted, validating the settlement, and the original motions for partition and sale and occupation rent were dismissed.

This costs ruling followed a trial where the plaintiff's modest claim was partially successful, but the defendants' $175,000 counterclaim was entirely unsuccessful.

The defendants failed to deliver a costs outline as directed and sought a 50% reduction in the plaintiff's costs, arguing the plaintiff's claim was arbitrarily reduced by the court.

The court declined to reduce the plaintiff's costs, fixing them at $33,462.36, emphasizing that the case was primarily about the misguided counterclaim and that the costs ruling was not an opportunity to revise the arithmetic of the main claim.

This is a costs ruling following a motion where the father (applicant) sought variations to a consent order, which was dismissed due to no material change in circumstances.

The father subsequently sought costs, alleging the mother's (respondent's) unreasonable conduct.

The court rejected the father's arguments, finding his motion "unhelpful" and driven by a "fear of losing control," especially given his prior agreement to the mother having sole custody.

The court affirmed the mother's presumptive entitlement to costs as the substantially successful party.

Considering the mother's Offer to Settle, she was awarded partial indemnity costs to a certain date and full indemnity thereafter.

The court found the mother's total costs claim of $28,718.21 to be fair and reasonable.

The plaintiff, Pylon Paving (1996) Inc., initiated a lien action for an unpaid balance of $20,200.85 for asphalt paving work.

The defendants, Arrow Lofts Inc. et al., counterclaimed for $175,000, alleging breach of contract and express warranty due to the plaintiff's failure to install 50 mm of asphalt and seeking full replacement.

The court found that the specified asphalt thickness could not be achieved due to underlying design flaws and the defendants' prior knowledge of these issues.

The defendants' counterclaim was dismissed as statute-barred and for failure to prove damages or present reasonable repair alternatives.

The plaintiff's claim was reduced by $10,000 due to its failure to document its concerns about the underlying deficiencies in writing, resulting in a judgment for $10,200.65.

The appellant, an OPP officer convicted of breach of recognizance and mischief to data, brought an application to introduce fresh evidence on her summary conviction appeal.

The proposed evidence included alibi witnesses, computer forensic expert evidence, and evidence attacking the complainant's credibility.

The Superior Court of Justice dismissed the application, applying the Palmer test.

The court found that the evidence could have been adduced at trial with due diligence and that the expert computer evidence lacked sufficient cogency to reasonably affect the verdict.

A custody and child support dispute following a nine‑day trial concerning a child born in 2006 to unmarried parents.

The applicant sought sole custody and increased child support, while the respondent sought joint custody and equal week‑about parenting time.

The court addressed complex issues regarding the respondent’s income derived from numerous corporations and preferred the evidence of the respondent’s financial expert when determining income for child support purposes.

Child support was fixed at $3,750 per month based on an averaged income assessment and the child’s realistic needs, with no retroactive award given the respondent’s longstanding voluntary payments.

Joint custody was ordered with the child’s primary residence with the mother and structured parenting time for the father.

A commercial tenant sought relief from forfeiture after the landlord terminated the lease and changed the locks due to rent arrears exceeding $44,000.

The tenant argued it withheld base rent because it expected a credit for overpaid additional rent and had not received an accounting.

The court held that the lease permitted immediate re-entry for non‑payment and that the tenant was a serial defaulter with significant arrears.

Relief from forfeiture is discretionary and only granted where forfeiture would be inequitable or unjust.

The court found nothing inequitable in allowing the landlord to enforce its contractual rights and dismissed the application.

A parent appealed a child protection order finding two children in need of protection under s.37(2)(b)(i) and (ii) of the Child and Family Services Act and making them Crown wards without access.

The appeal challenged the admission of a supplementary trial record, reliance on medical and professional reports, alleged hearsay in affidavits, and the trial judge’s treatment of the best interests analysis.

The court held that the evidentiary rulings were proper, noting trial counsel consented to the admission of several records and had opportunities for cross‑examination.

The court also found the trial judge’s reasons sufficiently addressed the children’s best interests and were entitled to significant deference.

Finding no palpable and overriding error, the appeal was dismissed.

Following a nine‑day trial concerning whether a contract existed between the parties, the plaintiff’s claims were entirely dismissed and the defendants’ counterclaim was also dismissed with no evidence led.

The court was required to determine the appropriate costs award.

The defendants sought substantial indemnity costs exceeding $355,000, arguing that the plaintiff’s conduct increased the complexity of the proceedings and relying on several settlement offers.

The court found the Rule 49 consequences were not triggered but considered the final offer in assessing reasonable costs.

Certain expert report disbursements were disallowed, and the court ultimately fixed the defendants’ costs at $255,000 and the plaintiff’s costs at $25,000.

Following the dismissal of a motion for leave to appeal, the successful defendants sought costs.

The plaintiff argued that costs should be in the cause of a forthcoming leave and certification motion, but the court rejected this position and held that costs should generally be determined at each stage of the proceeding.

The court also rejected the plaintiff’s submission that the defendants’ costs should be limited to the range the plaintiff would have sought had it succeeded.

Considering the rates of senior counsel and the parties’ costs outlines, the court fixed fair and reasonable costs payable by the plaintiff.

Following a trial in which the defendant was entirely successful despite having admitted liability, the court addressed the issue of costs.

The plaintiff had sought millions of dollars in damages but ultimately proved none at trial.

The defendant sought costs of $498,815.97, including partial indemnity fees up to April 21, 2010 and substantial indemnity fees thereafter based on unaccepted offers to settle.

The court found the amount fair and reasonable given the complexity of the damages theory advanced by the plaintiff, the unnecessary lengthening of the trial, and the plaintiff’s failure to accept settlement offers that should have been accepted.

Full costs in the amount claimed were awarded to the defendant.

The plaintiff sought leave to appeal an interlocutory order dismissing a motion to compel answers and document production arising from a cross‑examination on an affidavit filed in a class proceeding certification motion.

The underlying dispute concerned whether defendants were required to answer questions relating to a proposed statutory cause of action under Part XXIII.I of the Ontario Securities Act when the affidavit had been filed only for purposes of certification under the Class Proceedings Act.

Applying Rule 62.02(4) of the Rules of Civil Procedure, the court held that leave to appeal requires either conflicting authority or good reason to doubt the correctness of the order, together with sufficient importance of the issue.

The court found neither conflicting decisions nor any basis to doubt the motion judge’s ruling that the refused questions were irrelevant to the certification motion.

Leave to appeal was therefore denied.