Patrick T. Summers

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 appellants appealed a trial judgment that dismissed their claims as statute-barred and granted the respondents' counterclaim for the amount outstanding under a mortgage.

The self-represented appellant requested an adjournment to obtain counsel, which the Court of Appeal refused due to a history of delay.

The Court found no reviewable error of law or palpable and overriding error of fact in the trial judge's preference for the respondents' evidence or the calculation of the mortgage debt based on an expert report.

The appeal was dismissed with costs fixed at $5,000.

The plaintiff brought a summary judgment motion arising from alleged breaches of two settlement agreements prohibiting grey marketing of branded products in Canada.

The court rectified a misnamed party in the first settlement, held that the corporate defendants and the individual defendant were bound by and in breach of their respective settlement agreements, and rejected the defence that the agreements were void restraints of trade.

In applying the restraint of trade analysis, the court emphasized the settlement context, the plaintiff’s statutory rights as registered trade-mark owner, and the illegality of the imported products under federal labelling and packaging law.

Declaratory relief was granted, damages were referred to a Master for quantification, punitive damages were refused, and only a limited counterclaim remained.

Following a successful appeal where the appellant Estate successfully defended the respondent's claim for a one-half interest in a property, the court determined the costs for the proceedings in the court below.

The Estate sought partial indemnity costs of $169,508.

The court reduced this amount by $30,000 to account for two unsuccessful motions brought by the Estate during the litigation.

Costs were fixed at $134,478.68 payable by the respondent to the Estate.

The appellants appealed a trial judgment declaring the respondent the beneficial owner of a half interest in a family home.

The house was purchased in 1974 with title taken in the names of two adult children, as the mother did not qualify for a mortgage.

The mother paid the deposit, mortgages, and expenses using pooled family resources and rental income.

The trial judge found the mother had no money of her own and rejected her resulting trust claim.

The Court of Appeal allowed the appeal, finding the trial judge made a palpable and overriding error by conflating the mother's money with its source.

The Court held the mother was the sole beneficial owner by way of a purchase money resulting trust.

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.

Following a trial concerning ownership of a residential property, the successful plaintiff sought costs after obtaining a declaration of a one-half interest in the property.

The court considered a Rule 49 offer to settle under the Rules of Civil Procedure in which the plaintiff had offered to sell her interest for $250,000, which the estate declined.

Evidence of comparable sales indicated the property value exceeded $500,000, meaning the plaintiff achieved a better result at trial.

The court held that Rule 49 consequences applied, awarding partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

Costs were ordered against the estate but not against the co-defendant who had assigned his interest before trial.

The plaintiff sued his nephew and sister for an unpaid loan of $142,307.21, alleging the nephew borrowed the money and the sister guaranteed it as executrix of their mother's estate.

The defendants brought summary judgment motions, arguing the claim was barred by a mutual release executed to settle a decade of prior estate litigation.

The court granted the sister's motion, finding the broad release extinguished the claim against her.

However, the court dismissed the nephew's motion, concluding there was a genuine issue for trial because he was not a party to the release and the parties did not intend to extinguish his personal debt.

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.

During a trial concerning ownership of residential property and whether a resulting or constructive trust existed in favour of an estate, the plaintiff brought a mid‑trial motion seeking production of the deceased’s wills.

The court considered the principles of relevance and admissibility under the Rules of Civil Procedure and common law evidence authorities.

The wills were found to be potentially relevant to the intent of the deceased regarding the property at issue.

The court rejected arguments that family conflict created undue prejudice and held any risk could be controlled in a judge‑alone trial through appropriate weight.

Production of the wills was ordered subject to a confidentiality order sealing them from the public record.

The appellant appealed a motion judge's order dismissing her action for delay under Rule 24.

The action, commenced in 2002, was dismissed in 2013 for failure to restore it to the trial list.

The Court of Appeal upheld the dismissal, finding that the appellant failed to adequately explain the lengthy delay or rebut the presumption of prejudice.

The appeal was dismissed, and leave to appeal costs was refused.

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.

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.

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.