J. Paul R. Howard

This costs endorsement addresses the allocation and quantum of costs following the dismissal of a motion for intervention by Gregory John Monforton, the former lawyer for the plaintiffs, in a complex civil action.

The court reviews the governing legal principles for costs in Ontario, including the discretion under the Courts of Justice Act and the Rules of Civil Procedure, and applies them to the facts.

The court finds that the three sets of responding parties—CP Rail, Andrew Williams, and the Corporation of the Town of Lakeshore—are each entitled to their own costs, rejects the argument that only one set of costs should be awarded, and reduces the amount claimed by CP Rail for preparation of its factum as excessive.

The court fixes costs in the amounts of $40,553.48 to CP Rail, $16,276.61 to Andrew Williams, and $20,110.95 to Lakeshore, all payable by the proposed intervenor.

The defendants, Wildwood by the Lake Leaseholders Association and three individual board members, moved for summary dismissal of two actions brought by the plaintiff, a former board member.

The plaintiff alleged defamation arising from an investigation into her alteration of a job description document and subsequent reprimand.

The court dismissed the summary judgment motions, finding substantial factual disputes and witness credibility issues that require a trial.

The judge emphasized that the case was not suitable for summary judgment, particularly given the need for credibility assessments and the potential for the defence of qualified privilege to be defeated by malice or by exceeding the scope of the privilege.

The court also reiterated the Court of Appeal's caution against granting partial summary judgment.

The proposed intervenor, Keith Bannon, a former lawyer for the City of Windsor, sought leave under Rule 13.01 of the Rules of Civil Procedure to intervene as an added party in a pending motion.

This pending motion concerned the legal consequences of a prior decision that permanently stayed the City's counterclaim due to abuse of process related to undisclosed settlement agreements.

The court found that while Bannon might be adversely affected by the judgment due to potential professional negligence liability (satisfying Rule 13.01(1)(b)), his intervention would not offer a useful contribution and would cause undue delay and prejudice in what was an essentially private dispute.

The court emphasized that intervention in private lawsuits is granted "sparingly or rarely." Consequently, the motion for intervention was dismissed, and Bannon was ordered to pay costs to Southside Construction.

The case involved competing parenting motions, initiated by the respondent mother's motion to change a final order, following the applicant father's brief psychotic episode and hospitalization.

The primary issue was the disclosure of the father's medical records.

The court ordered the disclosure of hospital records from his recent hospitalization, subject to strict confidentiality restrictions, but dismissed the request for his treating psychologist's clinical notes and records, deeming them overly intrusive and not proportional given the availability of primary hospital records.

Interim supervised parenting time arrangements were also ordered.

A proposed intervenor, a former lawyer for the plaintiffs, sought leave to intervene in a motion concerning the interpretation of a settlement agreement.

The intervenor argued he might be adversely affected by the outcome due to a potential professional negligence claim.

The court found that while the intervenor met the "adversely affected" criterion under Rule 13.01(1)(b), his intervention was not warranted.

The court determined that the proposed evidence was subject to solicitor-client and settlement privilege, which had not been waived, thus preventing a useful contribution.

Furthermore, the intervention would cause undue delay and prejudice to the existing parties, particularly the minor plaintiffs, in a private dispute.

The motion for intervention was dismissed.

The Crown brought a motion for summary judgment to dismiss the plaintiffs' negligence action.

The plaintiffs, hog farmers, alleged the Crown's 2007-2008 financial assistance program was negligently designed because it used outdated 2000-2004 sales data, resulting in insufficient payments.

The central issues were whether the program's design decision was a policy or operational decision (policy decisions are immune from negligence liability) and whether the claim was statute-barred by the two-year limitation period.

The court found the design decision was a core policy decision, immune from liability, and alternatively, that the plaintiffs' claim was statute-barred as they had sufficient knowledge of their claim in 2008, not 2014 as they argued.

The Crown's motion for summary dismissal was allowed without costs.

This judgment addresses the entitlement, quantum, and duration of spousal support, calculation of retroactive support, and child support following a divorce.

The court found the applicant wife entitled to non-compensatory spousal support due to income disparity, but not a strong compensatory claim.

Spousal support was set at the mid-range of the Spousal Support Advisory Guidelines and ordered to terminate on September 30, 2024, considering the applicant's re-partnering and efforts towards self-sufficiency.

Retroactive child and spousal support were fixed, with a tax adjustment applied to the lump-sum spousal support.

Despite the respondent husband being the more successful party on the merits, no costs were awarded due to his deliberate non-compliance with an interim support order.

The plaintiffs, Vincent and Rosemary Tookenay, brought a motion to extend the time for service of their statement of claim in a medical malpractice action against the Estate of Dr. Michael O’Mahony and others, and to validate irregular service.

The statement of claim was issued in April 2021 but not properly served until January 2023, well beyond the six-month deadline.

The plaintiffs attributed the delay to a "miscommunication" within their lawyers' office.

The defendant Estate opposed the motion, arguing significant and uncompensable prejudice due to the unavailability of two key witnesses: Dr. O’Mahony, who suffered severe cognitive decline and later passed away, and nurse practitioner Melissa Georgiou, who died of cancer.

The court dismissed the plaintiffs' motion, finding an unexplained one-month delay after the plaintiffs' lawyers realized the claim had not been served, and actual prejudice to the defendant Estate due to the loss of crucial witness testimony.

The accused, M.T, was charged with sexual interference, sexual exploitation, and sexual assault involving his step-daughter, H.H. The Crown dismissed the sexual exploitation charge.

The court assessed the credibility and reliability of the complainant and the accused, applying the principles from R. v. W.(D.) and considering the evidence of children and delayed reporting.

The court found the complainant credible and the accused not credible due to inconsistencies and strategic answers.

M.T was found guilty of sexual interference and sexual assault.

This case involves competing parenting motions concerning the relocation of the parties' two-year-old child with special needs.

The respondent mother unilaterally relocated with the child from Essex County to Burlington.

The applicant father sought the child's return, while the respondent mother sought ex post facto court authorization for the relocation.

The court, applying the best interests of the child framework under the Divorce Act, found the mother to be the primary caregiver and her reasons for relocation, including lack of support in Essex County and better access to special needs services in Burlington, to be valid and reasonable.

The court authorized the relocation and maintained the father's alternate weekend parenting time, with exchanges at a neutral halfway point.

The accused challenged a search warrant and sought to exclude evidence under s. 24(2) of the Charter, alleging a s. 8 violation.

The court found the information to obtain (ITO) the search warrant was flawed, containing a false assertion and relying on speculative and stale information, thus rendering the search unlawful and a breach of the accused's s. 8 Charter rights.

Applying the Grant analysis, the court determined that the seriousness of the state conduct and the significant impact on the accused's privacy interests outweighed society's interest in the admission of reliable evidence.

Consequently, the evidence was excluded, leading to the dismissal of all charges against both accused.

Mark John Ryn was found guilty by a jury of conspiracy to import fentanyl and possession of fentanyl for the purpose of trafficking.

The court considered aggravating factors, including the dangerous nature of fentanyl, the duration of the trafficking enterprise, and the offender's profit motive and manipulation of a vulnerable co-accused.

Mitigating factors included his youth at the time of the offence and lack of a prior criminal record.

The court rejected the defence's request for a conditional sentence, emphasizing the need for general deterrence and denunciation in fentanyl cases and distinguishing Ryn's circumstances from his co-accused due to her guilty plea, cooperation, and victim status.

Ryn was sentenced to a concurrent term of four years imprisonment for each count.

This endorsement addresses the costs of a dismissed motion to change a 2014 final order concerning child support and s. 7 expenses.

The respondent father, as the successful party on the underlying motion, sought costs on a full recovery basis, claiming over $303,000.

The court upheld the presumptive entitlement of the respondent father to costs, finding the applicant mother's challenge to the 2014 settlement to be groundless and unreasonable.

After considering factors such as the parties' behaviour, time spent, and offers to settle (none of which triggered cost consequences), the court fixed the respondent father's costs at $89,896.13, significantly less than claimed, and disallowed certain disbursements.

The costs award was made enforceable as a support order.

The court fixed costs following a successful motion by Southside Construction and the Architects to stay the City of Windsor's claims due to abuse of process.

The City had failed to immediately disclose complete terms of settlement agreements with third-party subtrades, which fundamentally altered the litigation landscape.

The court found the City's conduct egregious and awarded substantial indemnity costs to Southside and the Architects, emphasizing that such an elevated scale was appropriate to express judicial disapproval and deter similar future behaviour, though not egregious enough for full indemnity costs.

The applicant father sought a step-down plan for unsupervised parenting time with his son, Jaxson, following allegations of past inappropriate conduct with another minor and his placement on the Child Abuse Register.

The respondent mother opposed, seeking fully supervised access at a centre or no access, and sole decision-making responsibility.

The court, prioritizing the child's best interests and relying on expert evidence, found the father did not pose a sexual risk to his son.

The court ordered a modified step-down plan for parenting time, contingent on the father's continued counselling, and granted the mother primary residency, deferring the decision-making responsibility issue to trial.

This case concerned a contract dispute between Harris Brothers Ltd. (plaintiff) and Mud Creek Capital Corp. (defendant) regarding levelling and regrading work for wind turbine towers.

The plaintiff claimed over $130,000 based on an alleged "open" time and materials contract, while the defendant argued the contract was for approximately $10,000 or $40,000.

The court found that the binding contract was a $40,000 purchase order, which required written agreement for any additional work.

Due to the plaintiff's failure to obtain such written consent for work exceeding the $40,000 cap, the court limited the plaintiff's recovery to the contract price.

Claims for quantum meruit and unjust enrichment were dismissed as a binding contract existed.

The defendant's counterclaim for costs to complete the work was also dismissed because they had prohibited the plaintiff from finishing the job.

Claims against the personal defendants were dismissed due to lack of evidence of personal liability.

The applicant mother brought a motion to change a 2014 final consent order regarding child support and section 7 expenses.

She sought to set aside the fixed child support provisions, arguing she did not understand the settlement due to cognitive distress and financial pressure.

The court dismissed her claims, finding her evidence not credible and upholding the settlement agreement.

The court also imputed an annual income of $90,000 to the applicant for 2017 and 2018 due to intentional under-employment, and ordered her to pay her 50 percent share of section 7 expenses totaling $8,060.82.

The respondent Penelope Provost was successful on a motion to transfer the proceeding from London to Chatham and sought her costs on a substantial or full indemnity basis.

The applicant and other respondents opposed, arguing for no costs or costs in the cause due to divided success and reasonable conduct.

The court found no reprehensible conduct to justify an elevated scale and fixed costs on a partial indemnity basis at $2,500, payable in the cause by the applicant and one respondent jointly and severally.

The City of Windsor entered into confidential settlement agreements with eight third-party subcontractors, which included indemnities and assumption of liabilities, fundamentally altering the litigation landscape.

The City failed to immediately and fully disclose these agreements to the general contractor (Southside Construction) and the architects, despite multiple opportunities and court orders.

The court found this non-disclosure constituted an abuse of process, as it created a circularity in claims and prejudiced the non-settling parties by forcing them to incur significant costs to uncover the true nature of the agreements.

The respondent brought a motion to transfer the applicant's estate litigation proceeding from London to Chatham.

The court applied the holistic approach under Rule 13.1.02(2) of the Rules of Civil Procedure and found that the respondent established Chatham was a significantly better venue, given that all parties and the subject property were located in Chatham-Kent, and related proceedings were already commenced there.

The motion to transfer was granted.

The respondent's additional requests to appoint a case management judge and direct a case conference were adjourned as premature pending a scheduled consolidation motion.