Paul Le Vay

This endorsement addresses the costs of a prior motion where the defendants were partially successful in striking out "campaign of defamation" allegations from the plaintiffs' Amended Statement of Claim, while the plaintiffs successfully opposed striking out pleas of malice.

The defendants sought $15,000 in partial indemnity costs.

The court, applying Rule 57.01 and considering the "fair and reasonable" principle, found that despite divided success, the "campaign of defamation" allegations were a principal issue where the defendants' position was validated.

The court awarded the defendants $11,500 in all-inclusive costs, payable by the plaintiffs.

The defendants brought a motion to strike portions of the plaintiffs' Amended Statement of Claim, which alleged defamation, injurious falsehood, and intentional interference with economic relations.

The court struck the paragraphs alleging a 'campaign of defamation' because the plaintiffs failed to plead a coherent body of fact regarding the defamatory statements.

The court declined to strike the pleadings of malice and injurious falsehood, finding they did not necessarily encroach upon solicitor-client privilege.

The court struck the claim for intentional interference with economic relations, as no duty of care was owed to the third parties, but granted leave to amend.

The defendants brought a motion for a declaration that the plaintiff's statutory secondary market misrepresentation claim under Part XXIII.1 of the Securities Act was statute-barred.

The plaintiff brought a cross-motion seeking an order granting leave nunc pro tunc to save the claim.

The court found that while the plaintiff was not barred by issue estoppel or abuse of process from arguing for a nunc pro tunc order, the request failed on its merits.

Applying the Supreme Court's decision in CIBC v. Green, the court held that a nunc pro tunc order was not available because the plaintiff had not filed a motion for leave before the expiry of the limitation period, and the equitable factors did not favour granting the order.

The defendants' motion was granted and the plaintiff's cross-motion was dismissed.

The plaintiffs, who had opted out of a rival Alberta class action to pursue an Ontario action, brought a motion to restrain the Merchant Law Group from contacting them.

A junior associate at the Merchant Law Group had sent a letter to one of the plaintiffs, who was already represented by Kim Orr Barristers.

The court found the communication inappropriate and a breach of duties owed to the court.

Although the court declined to issue a formal injunction because no actual harm occurred, it issued a declaration and awarded $15,000 in costs against the Merchant Law Group.

Following the dismissal of the defendants' motion for leave to appeal, the parties made written submissions on costs.

The plaintiff sought partial indemnity costs of $11,853.89, while the defendants argued the amount should not exceed $5,000 based on average awards for similar written motions.

The court found the motion for leave involved complex constitutional issues, justifying a higher award than typical leave applications.

The court awarded the plaintiff costs fixed at $8,000 inclusive of HST and disbursements.

Following the release of the court's reasons on appeal, the parties agreed to set aside the trial judge's costs award.

On consent, the Court of Appeal ordered the appellants to pay the respondents costs in the amount of $355,000, plus disbursements and applicable taxes.

The appellants appealed a trial judgment awarding damages to the respondents for losses arising from unauthorized investment trading, arguing the action was barred by the limitation period.

The Court of Appeal dismissed the appeal, finding the trial judge correctly applied the modified objective test for discoverability.

The respondents cross-appealed to recover capital gains taxes incurred due to the unauthorized trading.

The Court allowed the cross-appeal, holding that the claim for taxes was not a new cause of action but a claim for additional damages arising from the existing cause of action, and thus not statute-barred.

Following a motion to strike portions of a statement of claim, the court determined the appropriate costs payable to individually named defendants whose claims had been struck as an abuse of process.

The plaintiff had asserted a $10 million claim against individual employees and directors of corporate defendants without adequately pleading separate acts or interests beyond their corporate roles.

The individual defendants sought substantial indemnity costs, arguing the claims constituted tactical harassment.

The court found the claims against the individuals lacked proper particulars but concluded the circumstances did not justify elevated costs.

Partial indemnity costs were instead fixed at reduced amounts reflecting duplication of work with corporate defendants’ counsel.

The defendants moved under Rules 21 and 25 of the Rules of Civil Procedure to strike the plaintiff’s statement of claim alleging civil conspiracy, unlawful interference with economic interests, trespass, and breach of confidence arising from alleged GPS tracking of the plaintiff’s service vehicles to obtain customer information.

The court held that the pleadings for civil conspiracy lacked the required material facts and particulars but granted leave to amend.

The claim for intentional interference with economic interests was struck without leave to amend because the pleadings failed to allege unlawful means directed at a third party as required by the Supreme Court’s formulation of the tort.

Allegations against individual corporate officers were struck as an abuse of process for failing to plead independent tortious conduct.

Claims for trespass to chattels and breach of confidence were allowed to proceed, while the trespass to land claim was struck with leave to amend.

The appellant challenged an order arising from misleading comparative advertising directed at the respondent's water heater and rental services business.

The Court of Appeal upheld findings of liability under ss. 7(a) and 22(1) of the Trade-marks Act and rejected the argument that damages had not been proven, holding that unchallenged affidavit evidence and evidence of unusual contract cancellations supported a prima facie case.

The court also upheld liability under s. 52(1) of the Competition Act, finding that the motion judge's conclusion that the brochure was directed at misleading consumers implicitly established the required mental element of knowledge or recklessness.

A separate appeal was dismissed as abandoned, and costs were awarded to the respondent.

The moving party sought an order appointing a computer forensic expert to inspect the responding party’s computer systems to determine the authenticity of certain emails allegedly exchanged between employees.

The motion alleged a lack of transparency in the responding party’s investigation and requested inspection of servers and archived email systems.

The court accepted the responding party’s evidence that no trace of the emails existed in its live exchange system or archival vault and that prior internal and forensic reviews found no record of the communications.

Applying a threshold requirement that there be a real likelihood the emails once existed and were deleted, the court held the moving party’s request was based on speculation.

Given the intrusive nature of inspecting a competitor’s computer systems and the principle of proportionality in discovery, the court refused the requested order.

Following the striking of a statement of claim alleging conspiracy, defamation, misfeasance in public office, and related torts against numerous defendants, the court determined the quantum of costs payable on the successful pleadings motion.

Multiple defendant groups sought more than $205,000 in partial indemnity fees and over $20,000 in disbursements.

Applying Rule 57.01 of the Rules of Civil Procedure and the fairness principles articulated in Boucher, the court considered duplication of effort among separately represented defendants with similar interests.

The court concluded that substantial overlap existed between certain defendants’ legal work and therefore limited recovery to a single set of costs for those parties.

Reduced costs totalling $108,000 in fees plus $10,560 in disbursements were awarded, subject to HST.

The Ontario College of Teachers brought a discipline proceeding against a member, alleging professional misconduct and incompetence related to her teaching practice, classroom management, and interactions with students and colleagues.

The Discipline Committee found the member guilty of professional misconduct for failing to maintain the standards of the profession (specifically regarding course planning) and for committing acts that would reasonably be regarded as disgraceful, dishonourable, or unprofessional (specifically regarding her disrespectful treatment of students).

The Committee found that the College did not prove the allegations of incompetence, failure to keep records, or failure to comply with the Education Act.

As the member's Certificate of Qualification had already expired, no sanctions were ordered.

Following a prior decision granting declaratory relief for infringement under the Trade-Marks Act and Competition Act, the court addressed whether costs should be awarded before the quantification of damages on a reference.

The respondent argued that costs should be deferred until damages were determined in order to respect the principle of proportionality.

The court held that s. 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure confer discretion to award costs for a proceeding or a step in a proceeding even before damages are quantified.

Given the applicant’s substantial success on liability and the final nature of the declaratory relief, the court ordered that costs be payable forthwith on a partial indemnity basis, while allowing the respondent to make written submissions on the quantum of costs.

The plaintiff, a former Member of Parliament and cabinet minister, sued the prime minister, his senior advisors, and others for conspiracy, defamation, and other torts following her removal from cabinet and the Conservative Party caucus.

The defendants brought a motion to strike the statement of claim.

The court granted the motion, finding that the decisions to remove the plaintiff from cabinet and caucus were protected by Crown prerogative and parliamentary privilege, respectively, and were therefore not justiciable.

The court also held that communications between the prime minister and his advisors were protected by absolute privilege, and that the Conservative Party of Canada, as an unincorporated association, lacked the capacity to be sued.

The applicant alleged that the respondent distributed a brochure containing false and misleading statements about the applicant’s water heater rental services.

The court considered whether the brochure breached s. 7(a), s. 22, and s. 53.2 of the Trade-Marks Act and s. 52 of the Competition Act by discrediting a competitor and depreciating the value of goodwill attached to registered trade-marks.

The court found the brochure contained inaccurate and misleading representations and improperly reproduced the applicant’s trade-mark and logo.

The court concluded the respondent’s conduct breached the Trade-Marks Act and the Competition Act.

A declaration of breach was issued, a permanent injunction granted restraining further distribution of the brochure, and a reference ordered to determine damages.

After dismissing an application for a Norwich order compelling a newspaper to reveal confidential sources related to a business news story, the court addressed the issue of costs.

The unsuccessful applicant argued that no costs should be awarded because the proceeding raised novel and public interest issues linked to a proposed securities class action.

The court held that although the litigation had some public interest elements, it was fundamentally a private claim seeking recovery of trading losses.

Applying the factors in Rule 57.01 and considering the access to justice concerns noted by the Court of Appeal in class action jurisprudence, the court reduced the respondents’ claimed costs but fixed a substantial award.

Costs were ordered against the applicant on a partial indemnity basis.

The appellants succeeded on a limitation issue in a class action appeal and sought costs for the appeal and the motion below.

The Court of Appeal declined to alter the motion judge's order that costs of the motion remain in the cause.

For the appeal, the court recognized the appellants' success but modified the costs award because the appeal raised a novel issue of law and involved access to justice considerations in a class action.

The court awarded costs of the appeal in the cause, fixing them at $20,000 for the Timminco appellants, $20,000 for the Photon Consulting appellants, and $10,000 for the Walsh appellant.

The applicant sought a Norwich order compelling a journalist and newspaper to disclose the identities of confidential sources quoted in an article concerning the BCE leveraged buy-out negotiations.

The applicant alleged the sources’ statements were misleading or unlawful under the Securities Act and caused trading losses, and intended to pursue a proposed securities class action against them.

The court applied the Norwich test together with the Wigmore framework for journalist‑source privilege.

It found that any alleged breach of securities law was speculative and minimal, and that the public interest in protecting confidential journalistic sources outweighed the limited interest in disclosure for a civil claim.

The journalist‑source privilege was therefore upheld and disclosure refused.

The plaintiff commenced a proposed class action alleging secondary market misrepresentations by the defendants.

The statement of claim asserted common law causes of action and indicated an intention to seek leave to assert a statutory cause of action under section 138.3 of the Securities Act.

Facing a potential limitation issue, the plaintiff successfully moved for a declaration that the limitation period was suspended under section 28 of the Class Proceedings Act.

The defendants appealed.

The Court of Appeal allowed the appeal, holding that a statutory cause of action under section 138.3 is not 'asserted' within the meaning of section 28 until leave to proceed has been granted.