Patrick T. Summers

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.

The appellant appealed the dismissal of his action against his mother regarding an alleged contract for land.

He brought a motion seeking a declaration that Rule 63.01 automatically stayed the trial judge's order releasing vendor take back mortgage funds held in trust to the respondent, or alternatively, an order for a stay under Rule 63.02.

The Court of Appeal dismissed the motion, finding that an order for payment out of trust is not an order for the payment of money under Rule 63.01.

The court also declined to order a stay under Rule 63.02, as the appellant failed to establish a serious issue to be tried, irreparable harm, or that the balance of convenience favoured a stay.

A not‑for‑profit campus radio corporation sought a winding‑up order under the Winding Up and Restructuring Act after losing its broadcast licence, premises, and funding.

The opposing party argued the court lacked jurisdiction, that the members’ resolution was invalid because it referred to “dissolution” rather than “winding up,” and that potential derivative claims should proceed.

The court held that the distinction between “dissolve” and “wind up” was immaterial in the circumstances and that the corporation had no meaningful assets or operational purpose.

The court rejected the argument that speculative derivative claims justified preserving the corporation’s existence.

A winding‑up order was granted and the opposition dismissed.

The plaintiffs sought leave to appeal an interlocutory order that transferred the action's venue from Toronto to Belleville and required the plaintiffs to pay consulting fees into court pursuant to a security agreement.

The Divisional Court dismissed the motion for leave, finding no conflicting decisions on the venue transfer and no reason to doubt the correctness of the motions judge's application of section 67 of the Personal Property Security Act.

The court held that the proposed appeal did not involve matters of public importance.

The appellant sought to review and set aside an order requiring him to post $40,000 as security for costs to proceed with his appeal.

The motion judge had ordered security under rule 61.06(1)(a) on the basis that the appeal was frivolous and vexatious and the appellant lacked sufficient assets in Ontario.

The Court of Appeal set aside the order, finding that the respondent failed to meet the onus of demonstrating the appellant had insufficient assets, as the evidence relied upon related to past cash flow issues rather than current asset ownership.

A dissenting judge would have upheld the order.

The appellant appealed a trial judgment declaring his long-term disability insurance policy void for material non-disclosure.

On his insurance application, the appellant failed to disclose past medical complaints regarding his back and hip.

He subsequently became disabled from acute meningitis and sought benefits.

The Court of Appeal upheld the trial judge's finding that the omitted information was material, as it would have caused the insurer to issue the policy with exclusions for back and hip ailments.

The appeal was dismissed.

The appellant appealed a judgment finding it had trespassed by appropriating 210 square metres of the respondents' land to construct a berm for a Tim Hortons.

The trial judge ordered an injunction to remove the encroachment and directed a trial on damages.

The Court of Appeal dismissed the appeal, finding no error in the trespass finding or the injunction, noting the appellant offered no evidence that removing the encroachment would be oppressive.

The appellant appealed a trial judgment that held it responsible for a back-charge of $64,955.92 for secondary electrical wiring on a construction project, and awarded costs of $93,604.17 to the respondent.

The Court of Appeal upheld the trial judge's interpretation of the designer-built contract, finding the appellant was responsible for the wiring to the disconnect boxes.

The Court also upheld the costs award, noting it was influenced by an unaccepted Rule 49 offer and that both sides spent similar amounts of time on the litigation.

The appeal was dismissed.

The appellant appealed a motion judge's decision staying its action for breach of contract and negligence on the basis of forum non conveniens.

The Court of Appeal upheld the finding that West Virginia, where the respondent processed the steel coils, was the more convenient forum.

However, the Court granted leave to appeal the costs order and reduced the motion judge's costs award from $36,000 to $15,000, finding the original amount unreasonable for a two-hour motion.

The appellant appealed a trial judge's finding that he breached his fiduciary duty to his former employer by accepting a project from a client.

The respondent cross-appealed the calculation of damages.

The Court of Appeal dismissed both the appeal and cross-appeal, finding ample evidence that the appellant used knowledge acquired through his position to successfully bid for the work, and that the damages calculation was fact-driven and entitled to deference.

The appellant appealed a trial judgment that failed to order the return of a converted vehicle or its value.

The trial judge's factual findings were unchallenged, and the respondent did not cross-appeal.

The Divisional Court found that the appellant was entitled to the vehicle's return or its value of $6,500 at the time of conversion.

Since the respondent had sold the vehicle for salvage, the court varied the trial judgment to award the appellant $6,500 plus pre-judgment interest.

Costs of the appeal were awarded to the appellant.

The appellant appealed from a judgment of the Superior Court of Justice.

The Court of Appeal dismissed the appeal, finding it to be fact-driven and concluding that the appellant had not overcome the high hurdle required to overturn a trial judge's findings of fact.

Costs were awarded to the respondent in the amount of $5,000.

The appellant appealed a summary judgment dismissing his action for solicitor negligence.

The Court of Appeal dismissed the appeal, finding no genuine issue for trial on the issue of damages.

The court held that even on the appellant's new theory, there was no evidence that he suffered any damages due to the negligent advice, as the theories were based on speculation and contradicted by his own affidavit.

The appellants challenged a civil jury verdict, arguing that the apportionment of damages was perverse and that the award of pre-judgment interest should be varied.

The court held that appellate interference with a jury's apportionment is subject to an exceptionally high threshold and found that threshold was not met on the evidence.

The court also rejected the argument that a post-judgment interest rate should effectively replace pre-judgment interest from the date the trial ought to have occurred.

The appeal was dismissed with costs.