Paul R. Heath

Following a three-day trial where the applicant unsuccessfully opposed the approval of the respondent's accounts as attorney and executrix for their father's estate, both parties sought costs.

The court found no reason to order costs from the estate.

As the respondent was entirely successful, the court ordered the applicant to pay partial indemnity costs fixed at $20,000.

The plaintiff, an insurance broker, brought an action for wrongful and constructive dismissal against his former employer.

The defendant employer argued that the plaintiff had voluntarily retired and was an independent contractor.

The court found the plaintiff's evidence to be less credible than the defendant's and a third-party witness, concluding that the plaintiff had indeed voluntarily retired as he had previously announced.

The court also determined that the plaintiff was an employee, not an independent contractor, but dismissed the action entirely based on the finding of voluntary retirement.

Following a motion decided in favour of the applicant, the court received written submissions on costs.

The applicant sought costs of $28,157.62 on a solicitor and client basis, while the respondents argued for partial indemnity costs fixed at $10,000.

Applying Rule 57.01 and the principles from Boucher, the court found that the protracted litigation necessitated by the respondents' actions warranted costs on a substantial indemnity basis.

The court fixed the costs payable by the respondents to the applicant at $21,000 all-inclusive.

The applicant, PRW Excavating Contractors Ltd., sought to enforce a 2007 judgment against additional respondents (individuals and related corporations) by utilizing the oppression remedy under the Ontario Business Corporations Act and by piercing the corporate veil.

The court found that the intermingling of corporate affairs by the individual respondents, coupled with a lack of critical disclosure, constituted oppressive conduct, making all respondents jointly and severally liable for the judgment under the oppression remedy.

The court also dismissed the respondents' argument that the claim was statute-barred, finding it was an enforcement of a judgment, not a new cause of action, and fell within the 15-year ultimate limitation period.

However, the court dismissed the claim to pierce the corporate veil, citing the high threshold for proving illegal or fraudulent conduct.

The plaintiff, Lorilee Ali, challenged the validity of Florence Louisa Blackburn's 2003 and 2000 Wills, alleging lack of testamentary capacity, lack of knowledge and approval, and undue influence.

The court found no suspicious circumstances regarding the preparation of the 2003 Will or undue influence.

While concerns about Florence's capacity were raised, the court determined that her belief that money was stolen by the plaintiff was a rational conclusion given the circumstances and her memory loss, not a delusion affecting testamentary capacity.

The court was satisfied that Florence possessed the requisite capacity and knowledge and approval for the 2003 Will.

The applicant and respondent, separated parents of five daughters, each brought a motion for temporary custody.

The court found that all five children had expressed a desire to distance themselves from the applicant, with the two younger daughters having climbed out a window at the applicant's home.

The respondent's decision to limit the younger children's time with the applicant was deemed to be in good faith.

The court established the current arrangement as the new status quo, granting temporary custody of the two younger daughters to the respondent, with the applicant having access three afternoons a week as per a plan developed with FACS Niagara.

Child support from the respondent to the applicant was terminated.

The respondent successfully moved to terminate child support after the child finished post-secondary education.

He subsequently sought costs of $5,856 on a partial indemnity basis.

The applicant opposed, arguing she needed to continue litigation to collect arrears, and proposed each party bear their own costs.

The court rejected the applicant's argument, noting arrears remain enforceable after ongoing support is terminated, and found she had unreasonably refused an offer to settle.

The court awarded the requested costs of $5,856 to the respondent, to be deducted from any remaining arrears.

The father brought a motion to change a child support order, seeking to terminate support retroactively to March 2012.

The child turned 18 in December 2011 and finished secondary school in March 2012.

Although the child later attended a college program, he funded it himself through grants and loans while working.

The court found the child no longer met the definition of a "child of the marriage" under the Divorce Act after March 31, 2012.

The motion was granted, child support was terminated retroactively to March 31, 2012, and the mother was ordered to repay any excess amounts paid by the father.

The defendant insurer brought a motion seeking dismissal of two related actions for failure to comply with a prior court order requiring the plaintiffs to serve an expert report within 60 days and pay $40,000 in costs thrown away after a last-minute trial adjournment.

Despite the peremptory order, the plaintiffs neither retained an expert nor paid the ordered costs.

The court emphasized that parties must comply with court orders to preserve the integrity of the administration of justice.

While dismissal was available under Rule 60.12 of the Rules of Civil Procedure, the court granted a final “last chance” order permitting the plaintiffs 30 days to comply with the earlier order.

Additional costs of $3,500 were awarded to the defendant.

This was a costs endorsement following an application between estate trustees.

The successful applicant sought partial indemnity costs for the application and for expenses allegedly caused by the respondent’s refusal to abide by minutes of settlement.

Applying Rule 57 of the Rules of Civil Procedure and the fair-and-reasonable costs principle, the court held that the applicant was entitled to costs and that the amount should be fixed by the court rather than referred for assessment.

The court awarded the applicant all-inclusive costs of $15,000.

The applicant and respondent, brothers and co-estate trustees, attended mediation to resolve disputes regarding their mother's estate.

They executed minutes of settlement, but the respondent later refused to comply, alleging he signed under duress and coercion from his own counsel and the mediator.

The applicant brought an application to enforce the settlement.

The court found the language of the minutes clear and unambiguous, with no evidence supporting the respondent's late allegations of duress.

The court held the minutes of settlement constituted a binding contract and ordered judgment in accordance with their terms.

The mother brought a motion to vary a prior child support order on the basis of changed circumstances related to increased child care, orthodontic, and tutoring expenses for the parties’ three children.

The court considered the parties’ current incomes and the children’s special needs when determining the appropriate allocation of section 7 expenses.

While the court accepted that hiring a tutor and nanny were reasonable decisions, it concluded that the father’s financial circumstances limited his ability to contribute to the full cost.

The court varied the order to reduce table child support based on the father’s updated income and ordered fixed monthly contributions toward child care and tutoring, along with payment of past orthodontic expenses and a framework for future dental and orthodontic costs.