Paul J. Pape

This costs endorsement addresses three motions within a consolidated proceeding.

The court awarded substantial indemnity costs to the Adair parties (defendants) against the Pichelli parties (plaintiffs) for their successful summary judgment motions, finding that the allegations of fraud and malfeasance were unsubstantiated.

For the summary judgment motion brought by the Vuletic defendants against the Pichelli parties, costs were reserved to the trial judge due to unresolved factual disputes, including an allegation of forgery.

Finally, for a motion to vary a previous decision regarding Ante Kegalj, the Pichelli parties were awarded partial indemnity costs, significantly reduced from their claim, due to the straightforward nature of the motion and issues with their bill of costs.

This decision addresses a costs award following cross-motions for summary judgment in a commercial lease dispute.

The court had largely ruled in favour of the tenant, dismissing the landlord's action and granting the tenant's cross-motion on liability.

The tenant sought $78,060 in costs under simplified procedure (Rule 76).

The court found this request neither reasonable nor proportionate, given the landlord's dismissed claim was $66,496 and the tenant's damages claim was still proceeding to trial.

Adopting the landlord's suggestion, the court fixed costs at $45,000 all-inclusive, payable by the landlord to the tenant, emphasizing the principle that costs must be reasonable and proportionate to the amount recovered in simplified procedure.

The respondents sought to purchase a property owned by the appellant organization and advanced $1,735,000 under a Control Agreement dated April 8, 2015.

The trial judge found the funds constituted a loan repayable regardless of whether the property purchase was completed, that interest at 12% per annum was payable, and that two individual appellants were jointly and severally liable for repayment.

The appellants appealed, arguing the loan was conditional on property acquisition, that no interest was payable, and that the individuals were not personally liable.

The Court of Appeal dismissed the appeal, upholding the trial judge's interpretation of the Control Agreement and finding the appellants' interpretation commercially unreasonable.

The appellant appealed a motion judge's decision declining to approve the sale of property (79 Bramsteele Road, Brampton, Ontario) by a court-appointed receiver to the appellant.

The property was owned by a religious charitable organization that became insolvent.

The receiver entered into an agreement to sell the property to the appellant, but the motion judge declined approval, instead establishing a process to permit assignment of the first mortgage held by the respondent mortgagee.

The Court of Appeal found the motion judge erred in applying the second Soundair duty by failing to properly consider the interests of creditors and the appellant as purchaser.

The court allowed the appeal and ordered a new hearing.

This addendum addresses procedural issues arising from the Court of Appeal's March 28, 2018 decision allowing both appeals and a cross-appeal.

The court clarified that: (1) a "no order as to costs" provision can apply to both parties and interveners; (2) conclusions regarding statutory interpretation and waiver applicability should not be reflected in the formal order but only in the reasons; and (3) separate formal orders must be taken out for the merits decision and the costs decision, each bearing the date of its respective release.

The defendants, Zhiyi Zhou and Lina Wu, brought a motion to set aside the report of Master Wiebe, alleging errors in the Master's findings regarding a construction contract dispute and a reasonable apprehension of bias.

The Master had found that Mr. Zhou engaged in subterfuge regarding contract terms, improperly terminated the agreement, and was not credible.

The Superior Court dismissed the defendants' motion, confirming the Master's report.

The court found no error in the Master's application of the Browne v. Dunn rule, nor any reasonable apprehension of bias, emphasizing the high threshold for such claims and the need to accommodate self-represented litigants while respecting the other party's rights.

This is a costs endorsement following the Court of Appeal's decision allowing both appeals and a cross-appeal in two consolidated ski resort injury cases.

The court set aside the orders of the Superior Court and remitted the matters back for further proceedings.

The primary issue on costs was whether any party should recover their appellate costs.

Blue Mountain Resorts and the respondents argued for no costs award due to the novelty of the legal issues, while Snow Valley sought partial indemnity costs of $25,000.

Two consolidated appeals concerning the enforceability of liability waivers executed by ski resort patrons.

The central issue was whether the Consumer Protection Act (CPA) or the Occupiers' Liability Act (OLA) governs the relationship between ski resorts and patrons who purchased ski tickets and executed waivers as a condition of entry.

The lower courts held that the CPA applied and voided the waivers.

The Court of Appeal held that the OLA and CPA conflict, and that the more specific OLA provisions prevail over the general CPA provisions.

The court allowed the appeals and held that the waivers were valid and enforceable.

Appeal from a Superior Court judgment in a personal injury action arising from a motor vehicle accident.

The defendant-appellants admitted liability, and the sole issue was damages.

A jury awarded substantial damages for future loss of income, cost of medical care, and $225,000 in general damages for pain and suffering.

The appellants challenged the award on three grounds: restriction of expert testimony, failure to declare a mistrial due to inappropriate closing submissions, and insufficient guidance on the range for non-pecuniary damages.

The Court of Appeal dismissed all grounds of appeal and upheld the jury's award.

This is a costs endorsement following the dismissal of an appeal by Willowbrook Nurseries Inc. against Royal Bank of Canada.

The Court of Appeal awarded costs to the respondent bank in the amount of $20,000.00 all-inclusive for the costs of the appeal.

A nursery business appealed a trial judgment dismissing its claim against its bank for breach of the duty to perform the lending agreement in good faith.

The appellant argued the bank acted in bad faith by refusing to extend additional credit and placing the account in Special Loans without reasonable notice of a change to the prevailing course of lending conduct.

The appellant also argued the bank's discretionary decision was objectively unreasonable.

The Court of Appeal upheld the trial judgment, finding the bank did not breach its duty of good faith, that it was the appellant who sought to change the prevailing course of conduct by requesting additional credit without first repaying prior temporary overdraft accommodation, and that a bank's decision whether to lend new money is a subjective business decision not subject to objective reasonableness review.

This decision addresses the costs for a three-day trial where the plaintiffs were largely successful.

The court considered the plaintiffs' Rule 49 offer to settle, which they argued triggered substantial indemnity costs, and the defendants' arguments against it, including the implied withdrawal of the offer by subsequent settlement discussions.

The court found that the plaintiffs' Rule 49 offer was not implicitly withdrawn by subsequent non-Rule 49 offers, distinguishing prior case law.

The court also assessed the reasonableness of the plaintiffs' claimed costs under Rule 57.01, reducing them due to excessive lawyer time, duplication of effort, and disallowing a specific disbursement for a legal opinion deemed unnecessary.

Ultimately, the defendants were ordered to pay the plaintiffs $147,966.49 in costs.

This endorsement resolves five outstanding issues between the parties following a prior judgment (2017 ONSC 5680).

The court determined that the quantum of the judgment should not be deferred despite ongoing related proceedings, that simple interest applies to the loan amounts, and accepted the defendants' position on pre-judgment interest for the deposit.

The court also affirmed that Tzimas J. remains the case management judge for outstanding cross-claims and lease issues, and ordered the Certificate of Pending Litigation (CPL) to be removed at the plaintiffs' expense.

Following the dismissal of a proposed $2 billion class action regarding the Rana Plaza collapse in Bangladesh, the successful defendants sought costs totaling over $2.3 million.

The plaintiffs and the Class Proceedings Fund argued for no costs, asserting the case was novel and brought in the public interest.

The court rejected these arguments, finding the claims were grounded in established negligence principles and prosecuted aggressively with an expectation of costs.

The court awarded the defendants their claimed costs in full on a partial indemnity scale.

This is a costs endorsement following an appeal to the Court of Appeal for Ontario.

The appellants, The Regional Municipality of Sudbury and The City of Greater Sudbury, appealed a judgment of the Superior Court of Justice dated November 17, 2015.

The appeal was unsuccessful.

The court awarded costs to the respondents in the amount of $95,000, inclusive of disbursements and all applicable taxes.

A tragic motor vehicle accident occurred on November 22, 2000, when a 20-year-old driver lost control of her vehicle on a snow-covered regional road during a winter storm and collided with an oncoming school bus, sustaining catastrophic injuries.

The plaintiff and her family sued the municipality for negligence, alleging failure to maintain the road in a reasonable state of repair under the Municipal Act.

At trial, the municipality was found 100% liable for approximately $12 million in damages.

On appeal, the municipality challenged the trial judge's findings regarding statutory defences under sections 284(1.2) and 284(1.3) of the Municipal Act and the trial judge's rejection of a contributory negligence claim.

The Court of Appeal upheld the trial judgment, finding that the municipality had actual or constructive knowledge of the risk of road refreezing and failed to take reasonable steps to prevent the hazardous conditions that caused the accident.

On appeal from a damages award of $532,000 in a trespass and nuisance case, the appellants challenged the trial judge's quantification of damages, arguing the respondents failed to establish a reasonable and reliable basis for the award and should receive only nominal damages.

The Court of Appeal upheld the trial judge's decision, finding no error in her approach to damages assessment despite imperfect record-keeping by the respondent.

The trial judge properly considered gaps in evidence, the impact of the recession, and made reasonable inferences about lost productivity caused by the appellants' conduct.

The appellant slipped on ice in the parking lot of an apartment building and broke his leg.

The landlord, Cemcor Apartments Inc., had contracted with Myles Property Management Inc. to clear snow and ice from the parking lot.

The appellant sued for negligence under the Occupiers' Liability Act.

The trial judge found that Cemcor had a reasonable winter maintenance policy in place and that the parking lot was adequately cleared at the time of the accident, with the appellant's fall occurring on an isolated slippery spot.

The trial judge dismissed the claim.

On appeal, the appellant challenged both the factual findings regarding the condition of the parking lot and alleged reasonable apprehension of bias based on the trial judge's numerous interventions during cross-examination.

The Court of Appeal upheld the trial judge's decision, finding no factual error and rejecting the bias allegation.

On remand from the Supreme Court of Canada following the Ledcor decision, the Court of Appeal for Ontario reconsidered its earlier dismissal of a class action appeal.

The appellant challenged Bell Mobility's seizure of prepaid credits, arguing that Bell's contractual terms and subsequent communications created an obligation to wait until after expiry before seizing funds.

The court affirmed its previous decision, holding that the expiry date was determined at the time of top-up purchase and reflected in the PIN receipts and phone cards, not in subsequent reminder messages or account page displays.

The court found that the appellant's real complaint concerned misrepresentation or promissory estoppel, neither of which were amenable to class proceeding resolution.

This is a costs endorsement following an appeal and cross-appeal in a civil matter.

The respondents (Jarbeaus) were successful on the cross-appeal while the appellant (McLean) was unsuccessful on the appeal.

The court awarded costs to the Jarbeaus in the amount of $75,000, allocated as $18,000 to the cross-appeal and $57,000 to the appeal, inclusive of disbursements and applicable taxes.

The court declined to fix prejudgment interest or vary the trial costs award of $231,000.