Patrick Summers

The applicant sought costs of $302,215.33 following successful interim and final preservation motions in a complex family law dispute involving a multi-million-dollar real estate empire.

The court found the respondents' conduct, particularly their failure to comply with disclosure orders and late delivery of materials, to be unreasonable and warranting sanction.

The court rejected the respondents' arguments of divided success and their reliance on offers to settle.

The court declined to pierce the corporate veil to make the individual respondent personally liable for the corporate respondents' costs.

The applicant was awarded total costs of $200,000 on a substantial recovery basis.

The applicant husband brought a motion for an interim preservation order under Rule 45.01 of the Rules of Civil Procedure and section 12 of the Family Law Act to preserve the assets of several respondent corporations pending trial.

The applicant claimed legal and beneficial ownership of the corporations, which held a substantial real estate portfolio and private mortgage fund, while the respondent wife claimed her mother owned them.

The court found the applicant established a strong prima facie case of ownership and that the balance of convenience favoured preserving the unique corporate assets.

The court granted the preservation order for the corporate assets but declined to order preservation for specific residential properties under the Family Law Act.

The third party, Onward, moved to permanently stay the main action based on a release containing a no-claims-over clause that the plaintiff had signed in its favour.

The defendant, Enercare, had commenced a third-party claim against Onward for contribution and indemnity.

The court dismissed the motion, finding that the plaintiff had expressly waived its right to recover any damages attributable to Onward's fault in its amended statement of claim.

Applying the principle from Taylor v. Canada, the court held that this waiver eliminated any viable claim-over by Enercare against Onward, meaning the main action was not a prohibited proceeding under the release.

Following a trial where the plaintiff was awarded specific performance of an agreement of purchase and sale, the plaintiff sought costs on a substantial indemnity basis relying on a Rule 49 offer to settle.

The court found that the offer lacked a genuine element of compromise, as it essentially demanded the defendants either purchase the property or pay equivalent damages.

The court awarded costs to the plaintiff on a partial indemnity scale, fixed at $150,000 inclusive of disbursements and taxes, after deducting costs for an earlier consent motion and an unsuccessful summary judgment motion.

The plaintiff corporation entered into an Agreement of Purchase and Sale to buy a residential property from the defendants.

The defendants subsequently refused to close the transaction, breaching the agreement.

The plaintiff sued for specific performance, arguing the property was uniquely suited as a recreational compound for its principals' extended family.

The defendants argued the purchase was a commercial investment and damages were the appropriate remedy.

The court found the property had a peculiar and special value to the plaintiff and ordered specific performance.

The plaintiff brought a motion for summary judgment for damages arising from the defendant's failure to close a real estate transaction.

The defendant argued the agreement was void due to misrepresentations about conservation authority restrictions and that she was not personally liable because she signed 'in trust' for a corporation.

The court found that the issue of misrepresentation required a trial due to the risk of inconsistent findings with related third-party claims.

However, the court granted partial summary judgment on two discrete issues, finding that the defendant would be personally liable if the agreement is enforceable, and quantifying the plaintiff's damages at $381,984.02.

Following a successful summary judgment motion in a wrongful dismissal action, the plaintiff sought costs.

The plaintiff had served an offer to settle for 11 weeks' salary, which the defendant did not accept.

Because the plaintiff ultimately recovered 4 months' salary, Rule 49.10(1)(a) applied.

The court awarded the plaintiff partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter, fixing the total all-inclusive costs at $13,900.

The plaintiff employee was terminated without cause after 8.5 months of employment.

The defendant employer argued that a termination clause in the employment agreement limited the plaintiff's entitlements to the statutory minimums under the Employment Standards Act.

On cross-motions for summary judgment, the court found the termination clause ambiguous as it merely stated the employer would comply with the legislation without explicitly displacing common law rights.

Applying the principle of contra proferentem, the court interpreted the clause against the employer and awarded the plaintiff 4 months' pay in lieu of reasonable notice, plus one month of pension contributions.

Following a summary judgment finding the defendants liable for breaching two settlement agreements by importing and selling goods bearing the plaintiff's trademarks, the plaintiff sought costs on a substantial indemnity basis.

The court found that the defendants brazenly breached their agreements and engaged in reprehensible litigation tactics that maximized costs and delay.

The court awarded the plaintiff costs of $225,000 on a substantial indemnity basis.

The defendants sought leave under Rule 39.02 of the Rules of Civil Procedure to file an expert affidavit after conducting cross-examinations in relation to a pending summary judgment motion.

The plaintiff opposed the request, arguing the expert report was inadmissible, failed to meet the Rule 39.02 test, and did not comply with Rule 39.01(7).

The court applied the flexible, contextual approach articulated in First Capital Realty Inc. v. Centrecorp Management Services Ltd. and found the proposed evidence relevant, responsive to matters raised during cross-examination, and supported by a reasonable explanation for the delay.

The court also concluded the plaintiff would suffer no non‑compensable prejudice because the summary judgment hearing had not yet been scheduled and the plaintiff could respond and cross‑examine the expert.

Leave was therefore granted to file the affidavit and expert report, subject to confidentiality and further scheduling directions.

The defendants brought a motion to enforce a settlement agreement regarding a property boundary dispute.

The settlement required the parties to hire a licensed surveyor to determine a new boundary line.

The plaintiffs opposed the motion, arguing the surveyor improperly selected a boundary previously determined by the defendants' surveyor.

The court found that the settlement agreement, read objectively, did not preclude the new boundary from matching a previously alleged boundary.

The motion was granted, and the survey was ordered to be registered on title.

The plaintiff sought a declaration that she held a beneficial one-half interest in a Toronto property formerly owned by her deceased husband as tenant-in-common with his brother.

The defendants argued the property was held in trust for the brothers’ mother and that the plaintiff only held title as trustee rather than beneficial owner.

After reviewing the family’s financial contributions, tax filings, and historical dealings with the property, the court found no evidence of an express, resulting, or constructive trust in favour of the mother.

The evidence showed the brothers were the true beneficial owners who funded and maintained the property and consistently declared rental income on their tax returns.

The plaintiff therefore succeeded to her late husband’s beneficial half-interest, and the court ordered partition and sale of the property with proceeds divided equally.

The plaintiff moved under r. 37.14 of the Rules of Civil Procedure to set aside a registrar’s order dismissing its action for delay under r. 48.14.

The court reviewed the contextual approach articulated by the Court of Appeal in Scaini v. Prochnicki and considered the four Reid criteria: explanation for delay, intention to proceed to trial, promptness of the motion, and prejudice to the defendants.

Although the plaintiff failed to provide a fully satisfactory explanation for lengthy litigation delay largely attributable to counsel’s inattention, the evidence demonstrated that the plaintiff intended to pursue the action and brought the motion promptly once the dismissal was discovered.

The court found no significant litigation prejudice to the defendants arising from the delay.

Balancing the interests of the parties, the registrar’s dismissal order was set aside subject to a timetable and a costs award to the defendants.

The court determined costs following the disposition of a civil action involving claims, counterclaims, and third party proceedings.

The third party claims and counterclaims were deemed dismissed under Rules 24.04 and 24.03 of the Rules of Civil Procedure.

The court held that the plaintiff should indemnify the defendants for any costs payable to the third parties and awarded partial indemnity costs to the defendants for defending the action and for the third party claims.

Costs were fixed for motions, third party proceedings, and the main action in favour of both groups of defendants, with reductions reflecting reasonable expectations and prior related litigation.

The applicant sought leave under s. 45(1) of the Arbitration Act, 1991 to appeal an arbitrator’s award arising from a construction dispute between an owner and a general contractor.

The arbitration concerned liability for additional costs incurred by a subcontractor performing earthworks and other invoiced work after anticipated soil disposal arrangements failed.

The applicant argued the arbitrator committed errors of law in interpreting the construction contracts, calculating damages, and failing to consider legal doctrines such as waiver of condition and issue estoppel.

The court held that the proposed grounds of appeal raised pure questions of law, including the proper interpretation of contractual provisions and the application of legal principles governing damages.

Leave to appeal the arbitration award was therefore granted.

Following a seven‑day trial involving enforcement of a vendor‑take‑back mortgage, promissory note, and guarantees relating to the sale of a gasoline station, the successful lender sought costs on a full indemnity basis relying on contractual provisions and alternatively substantial indemnity costs after an offer to settle.

The defendants conceded that costs should be awarded but disputed the scale and quantum.

The court held that although the plaintiff was largely successful, the defendants achieved limited success on an issue that reduced the principal judgment by $80,000.

The court further held that the plaintiff’s offer to settle was an “escalating offer” that did not trigger Rule 49.10 cost consequences.

Partial indemnity costs were awarded and fixed globally in an amount reflecting the mixed success of the parties.

The plaintiff sold a gasoline station to the defendants and took back a VTB mortgage and a promissory note.

The defendants stopped making payments, alleging the plaintiff misrepresented the station's financial performance and failed to complete a drive-through as undertaken.

The court found no misrepresentation, as the financial information provided was not materially inaccurate and the defendants waived their due diligence conditions.

However, the court found the plaintiff breached its undertaking to complete the drive-through and awarded the defendants an $80,000 offset against the amounts owing under the VTB mortgage.

The plaintiff was granted judgment for the balance owing and possession of the property.

Following the withdrawal of a summary judgment motion that sought dismissal of an action as statute-barred under the Limitations Act, 2002, the court determined the costs consequences.

During the initial hearing, the court raised the potential applicability of the Real Property Limitations Act to the plaintiff’s claim for a constructive trust interest in land, prompting adjournment.

The moving defendant subsequently abandoned the motion.

Applying Rule 37.09(3) of the Rules of Civil Procedure, the court held that responding parties were entitled to their costs forthwith unless ordered otherwise.

Costs were awarded to the responding parties with reductions to reflect the circumstances and work performed.

The applicants moved for leave to amend their pleadings to withdraw long-standing admissions that the respondent held a right of way across their land.

The admissions had been made in three related proceedings spanning more than a decade and had formed the factual basis of a prior judgment and an endorsement by the Court of Appeal.

The applicants argued a title search revealed the right of way may not have been validly transferred in the chain of title.

Applying the test for withdrawing admissions, the court held the applicants failed to show the admissions were inadvertent and found that allowing withdrawal would cause significant prejudice because earlier court decisions relied on the admitted fact.

Public policy and finality of litigation also weighed against permitting the amendment.

Following a successful summary judgment motion dismissing the plaintiff’s action, the defendant sought costs on a solicitor‑client or substantial indemnity basis relying on a provision in a release.

The plaintiff conceded entitlement to costs but argued that the provision applied only to third‑party proceedings and that the usual partial indemnity scale should apply.

The court held that the release provision did not apply to the litigation and that no misconduct justified elevated costs.

Applying Rule 57.01 factors, the court found the defendant’s partial indemnity claim reasonable and awarded costs accordingly.