Patrick J. Flynn

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 plaintiffs were entirely successful on a motion to add a proposed defendant after the expiry of the limitation period.

Both sides sought costs of the motion.

The proposed defendant argued that the plaintiffs' conscious decision not to add him within the limitation period caused the motion.

The court found that the proposed defendant's insurer chose to oppose the motion rather than pleading the limitation period and bringing a summary judgment motion, effectively giving itself two chances to defeat the claim.

The court awarded partial indemnity costs to the plaintiffs, fixed at the exact amount the proposed defendant had claimed as reasonable costs if he had been successful.

Following the dismissal of the plaintiff's action after a 2.5-day trial, the successful defendants sought costs.

The court found no conduct warranting substantial indemnity costs and no relevant offers to settle.

Applying the principle that costs must be fair and reasonable in line with the losing party's expectations, the court noted the plaintiff's own costs outline was over $44,000.

The court fixed the defendants' costs at $30,000 on a partial indemnity basis.

The plaintiff brought an action against the estate of his deceased former common-law partner, seeking a declaration that he was the beneficial owner of two cottage properties registered in her name.

The parties had executed a cohabitation agreement in 1993 that established a separate property regime.

In 2010, the plaintiff directed that the properties be transferred into the deceased's name.

He alleged that she held them in trust for him, but no written declaration of trust was ever signed.

The court found that the plaintiff failed to prove the existence of a trust on a balance of probabilities, noting conflicts in the evidence and the application of the Statute of Frauds.

The action was dismissed.

Following a civil trial involving a dispute between the plaintiff and one defendant, the successful defendant sought recovery of legal costs totaling $62,762.36 based on partial and substantial indemnity, relying in part on offers to settle delivered shortly before trial.

The plaintiff conceded entitlement to costs but argued the amount claimed was excessive and that certain docketed time, including attendance of a student at trial, was unnecessary.

The court found the case relatively simple and rejected the request for substantial indemnity costs based on late offers to settle.

However, the court held the plaintiff’s conduct at trial warranted more than partial indemnity costs.

A lump sum costs award of $47,000 inclusive was fixed and ordered payable within 30 days.

The court determined costs following a motion in which the defendants were completely successful.

The defendants sought partial indemnity costs prior to an offer to settle and substantial indemnity costs thereafter, totaling $9,356.10.

The plaintiff challenged the time billed by defence counsel and argued the work performed was neither reasonable nor proportional.

The court found the plaintiff’s motion ill‑conceived and concluded the successful party would reasonably expect significant costs.

Costs were fixed at $7,500 as a fair and reasonable amount payable by the plaintiff.

The responding mother brought a motion to change a 2005 final order respecting child support and section 7 expenses.

She sought retroactive child support and contributions toward the adult children’s university expenses.

The court found material change based on increased parental incomes and the children’s enrolment in post‑secondary education.

Applying the principles governing retroactive support, the court limited retroactivity to three years prior to the motion and rejected allegations that parent‑child alienation justified denying support.

The father was ordered to pay arrears for education and section 7 expenses and ongoing limited support for one child until April 2016.

The Crown brought a motion to strike portions of a statement of claim arising from alleged mistreatment during the plaintiff’s incarceration at provincial correctional facilities.

The court held that most claims were barred for failure to comply with the mandatory notice requirement in s. 7 of the Proceedings Against the Crown Act, which requires written notice at least 60 days before commencing an action.

The plaintiff provided notice only after issuing the claim, rendering the pleaded tort, Charter, and other allegations nullities.

Only a negligence claim relating to a slip-and-fall incident survived because written institutional records sufficiently identified that occurrence.

Claims for punitive, aggravated, exemplary, Charter, and treaty-based damages were struck, and improperly named institutional defendants lacking legal status were dismissed.

In a family law motion, the applicant sought findings of contempt relating to alleged breaches of prior court orders concerning property retrieval, vehicle maintenance obligations, and parenting exchange arrangements.

The court found the respondent in contempt for deliberately withholding certain listed household items contrary to a prior order requiring their surrender, but declined to find contempt regarding alleged failure to service a vehicle because the order was ambiguous and primarily required payment of operating expenses.

The court imposed a reduced monetary fine and directed the parties to arrange completion of the property transfer.

Requests to vary parenting transfer arrangements and for reimbursement of vehicle maintenance costs were dismissed.

Following the defendants' complete success on a summary judgment motion, they sought costs of $13,897.75 on a partial indemnity basis.

The defendants had previously delivered an offer to settle that would have allowed the plaintiff to walk away without paying rent or costs.

The plaintiff's costs submissions were brief and lacked detail.

The court found the defendants' claim for costs to be fair and reasonable, awarding them the full amount sought.

The plaintiff sued a lawyer, alleging the lawyer acted for him on a mortgage transaction and breached trust obligations by disbursing $70,000 of the proceeds to a third party instead of the plaintiff.

The court dismissed the claim against the lawyer, finding that the plaintiff was actually represented by his spouse, who was also a lawyer, and that the defendant lawyer had followed instructions to disburse the funds.

The court made strong adverse credibility findings against the plaintiff and his spouse.

Judgment was granted against the third party who received the funds.

Following the respondent's complete success on the application, the court determined the quantum of costs payable by the applicant.

The respondent sought costs but failed to deliver a Bill of Costs, and the applicant argued the respondent's Costs Outline showed exorbitant and duplicated time logged by multiple professionals.

Applying the principle that costs must be within the reasonable expectation of the losing party, the court agreed with the applicant's complaints regarding excessive time charges and fixed the respondent's partial indemnity costs at $15,000 all inclusive.

On competing motions arising from an employment-related civil action, the defendants sought to strike the entire statement of claim for deficient pleading and failure to disclose viable causes of action, while the plaintiff sought consolidation or a joint trial with a related action.

The court held the threshold on a Rule 21 motion was low and allowed the wage, assault, and core defamation-related allegations to proceed, subject to particulars where needed.

The court found the pleading of injurious falsehood and unlawful interference with economic relations defective in part, struck paragraph 31 and the intentional interference claim with leave to amend, and directed timelines for particulars, amendments, and delivery of a defence.

The consolidation request was found premature, and no costs were ordered unless further submissions were made.

The applicant sought declarations that a 1931 registered agreement affecting gravel pit lands was void and unenforceable, removal of the instrument from title, and confirmation of sole ownership.

The court held the application was vulnerable because the applicant's ownership was uncertain on the record and, in any event, the claimed relief was premature because the contractual trigger had not occurred.

On the central issue, the court found the agreement did not create a specifically enforceable option to purchase but was instead akin to a right of first refusal creating only personal rights.

As a result, the Rule against Perpetuities had no application and the application was dismissed.

The respondent husband sought leave to appeal an interlocutory procedural order relating to filing, questioning, and refusals to answer undertakings in a family proceeding.

The Divisional Court considered the criteria for granting leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure.

The court held that the requirements for leave were not satisfied because the prior consent order cited did not constitute a conflicting decision and the proposed appeal did not raise issues of public importance.

The matter was characterized as a procedural dispute between family litigants.

Leave to appeal was therefore denied and the motion dismissed.

A subcontractor commenced an action for payment relating to framing work on a church construction project, while the general contractor counterclaimed for the cost of completing unfinished work and remedying deficiencies after the subcontractor abandoned the project.

The dispute centered on whether soffit installation fell within the subcontractor’s contractual scope and whether the subcontractor was responsible for correcting roof drainage problems.

The court held that the subcontract language requiring the subcontractor to install “all wood” and the “roof system” included soffit work, allowing those completion costs to be set off.

However, the court found insufficient evidence to attribute the roof drainage defect solely to the subcontractor and ordered that the remediation costs be shared equally.

Judgment was granted in favour of the contractor for the net completion costs.

The plaintiffs sought damages for wrongful dismissal, unpaid commissions, and punitive damages arising from the termination of a sales and marketing role in condominium developments.

The court found that the plaintiff was an employee rather than an independent contractor, notwithstanding the use of corporate invoices for payment.

After being terminated without notice, the plaintiff was entitled to commissions on completed condominium sales, damages for five months’ reasonable notice, and punitive damages due to the defendant’s post‑termination conduct, including intimidation and a baseless counterclaim alleging theft of documents.

The court rejected the defence based on the Real Estate and Business Brokers Act because it was not pleaded and because the plaintiff acted as a full‑time employee.

Judgment was granted in favour of the plaintiff and the defendant’s counterclaim was dismissed.

Applicants sought dependant’s relief under Part V of the Succession Law Reform Act, alleging that a deceased father failed to meet child support obligations and made no provision for his adult son.

The court examined the separation agreement, prior support orders, and the son’s circumstances at the time of the father’s death.

Evidence showed the support obligation had been reduced to zero while the father received public assistance and that the son was no longer a child entitled to support.

The court also found that certain insurance and investment proceeds passed outside the estate to a designated beneficiary and were not available for recovery.

The applicants failed to establish entitlement to dependant’s relief from the estate.

Following an earlier decision striking the plaintiffs’ statement of claim and dismissing the action against Crown defendants, the defendants sought costs of $2,700 for a half‑day motion.

The court acknowledged that the time spent and hourly rate claimed by Crown counsel were reasonable and that costs would normally be awarded to the successful party.

However, the plaintiffs, who were self‑represented, demonstrated that their correspondence and settlement offers regarding costs had gone unanswered by Crown counsel.

The court held that the Crown’s failure to respond to the litigants’ communications was discourteous and inconsistent with the state’s obligation to treat citizens with respect.

In the circumstances, the court exercised its discretion to deny the requested costs despite the defendants’ success on the underlying motion.

A corporate defendant sought leave to appeal to the Divisional Court from an interlocutory order granting an injunction freezing proceeds from the sale of certain properties.

The moving party argued the motion judge erred regarding res judicata and the existence of a serious issue to be tried, and that the order improperly restrained funds without determining a proprietary interest.

The court applied Rule 62.02(4) of the Rules of Civil Procedure and held that the moving party failed to establish either a conflicting decision or a good reason to doubt the correctness of the order combined with a matter of sufficient public importance.

The dispute was fact-driven and concerned only the interests of the litigants.

Leave to appeal was therefore refused.