Peter A. Mahoney

The plaintiffs' action for negligence and breach of contract regarding a roofing installation was administratively dismissed for delay under Rule 48.14.

The defendant brought a motion for costs, including a substantial disbursement for an engineering expert.

The plaintiffs argued the court lacked jurisdiction to award costs following an administrative dismissal.

The court held that it retains jurisdiction under section 131 of the Courts of Justice Act to award costs after a Rule 48.14 dismissal.

The court awarded the defendant costs on a partial indemnity basis, finding the large expert disbursement proportionate given the plaintiffs had claimed $500,000 in damages.

This decision addresses the costs of a successful motion brought by Azzam Tawachi (defendant to counterclaim) to dismiss a counterclaim against him by Athena Donair Distributors Ltd. (plaintiff by counterclaim).

The court found the motion necessary due to Athena's actions in contravening the Construction Lien Act.

Tawachi was awarded partial indemnity costs, fixed at $4,688.53, inclusive of HST, payable by Athena within 30 days.

The Town of Pelham, as the successful applicant in a prior application, sought costs against Fonthill Gardens Inc. The respondent argued for no costs, claiming the Town's success was incomplete as the judgment did not fully clear title for a third-party sale.

The court awarded costs to the Town on a partial indemnity basis, but with a downward adjustment to $14,000, acknowledging the Town's less than complete success on the application's practical outcome.

The applicant municipality sought a declaration that the respondent developer did not hold an option to purchase a block of municipal land and an order deleting a Notice of Option to Purchase from title.

The court found that the respondent's purchase right was a personal right akin to a right of first refusal, not an equitable interest in land, because the municipality retained the right to determine if it required the land for its own purposes.

Although the respondent's interest was capable of being registered on title under the Land Titles Act, the specific Notice of Option to Purchase was ordered deleted because it gave notice of an interest the respondent did not possess.

The appellants appealed a trial judgment ordering payment of over $4.2 million arising from breach of repair and maintenance obligations under a commercial lease for hotel and restaurant premises.

They argued the trial judge erred in interpreting the lease as imposing an enhanced repair standard and that there was insufficient evidence establishing the condition of the premises at the start of the lease.

The Court of Appeal rejected both arguments, holding that the lease language and commercial context supported the trial judge’s interpretation.

The court further held that evidence including contractual representations, inspection reports, and witness testimony provided a sufficient basis to compare the condition of the premises over time.

The appeal was dismissed and costs were awarded to the respondents.

The plaintiffs, having previously succeeded in a damages claim for breach of a commercial lease, sought pre-judgment and post-judgment interest at the contractual lease rate of 18% per annum and costs on a substantial indemnity basis.

The defendants argued for the lower statutory interest rate, citing historical low market rates and potential windfall for the plaintiffs.

The court, relying on the Supreme Court of Canada's decision in *Bank of America Canada v. Mutual Trust Co.*, upheld the contractual interest rate, finding no special circumstances to override the parties' agreement.

The court also awarded costs to the plaintiffs as requested, fixed at $106,581, including disbursements and tax, based on their formal offer to settle.

The plaintiffs purchased a commercial property containing a hotel and restaurant and leased it back to the defendants for five years.

Upon the lease's expiry, the plaintiffs took possession and discovered significant disrepair, including moisture damage.

The plaintiffs sued for breach of the lease's repair and maintenance obligations.

The court found that the defendants failed to maintain the premises to the standard of a 'careful owner' and that the deterioration exceeded reasonable wear and tear.

The plaintiffs were awarded $1,734,107 in damages for remediation costs.

Following an appeal from a Deputy Judge’s decision in Small Claims Court, the appellant obtained partial success when the court set aside the dismissal of the claim and allowed the matter to proceed to trial.

However, several key issues—including the identity of the contracting parties, the applicability of the limitation period, and potential personal liability—were reserved for determination at trial.

The court found that the appeal arose largely from a misnomer in the plaintiff’s claim attributable to the appellant itself.

Although the appeal permitted the action to continue, that benefit did not justify awarding costs.

The court therefore declined to award costs to either party.

Appeal from a Small Claims Court decision dismissing a construction contract claim under Rule 12.02 of the Small Claims Court Rules on the basis that the plaintiff corporation did not exist at the time of contracting and that the limitation period had expired.

The appellate court held that the deputy judge committed palpable and overriding errors by failing to analyze the legal effect of corporate amalgamation and by refusing to permit amendment of the plaintiff’s name despite the absence of demonstrated prejudice.

The court also found the deputy judge inadequately addressed evidence that a later payment could constitute an acknowledgment extending the limitation period.

The dismissal was set aside and the claim was amended to substitute the amalgamated corporation, with key issues—including the proper contracting party, limitation period, and personal liability—left for determination at trial.

The applicants brought a motion for directions regarding the distribution of net proceeds from the sale of a jointly owned winery business.

The parties disputed the interpretation of shareholder agreements governing repayment of shareholder loans where sale proceeds were insufficient to satisfy all advances.

The court held the agreements did not directly resolve the allocation issue and interpreted the parties’ commercial relationship as a joint venture intended to operate on an equal footing.

The court ordered that unpaid wages be paid first, followed by repayment of advances secured by mortgage, with the remaining proceeds distributed proportionally among the excess shareholder loans.

No order for costs was made.

The plaintiffs brought a motion to compel the defendants to comply with a prior consent order requiring production of financial and maintenance records relating to a hotel property that had been sold to the plaintiffs and leased back to the defendants.

The defendants resisted production on the basis of competitive sensitivity, the structure of their accounting records across multiple hotel properties, prior endorsements by another judge, and alleged non‑existence of certain documents.

The court held that competitive concerns do not override production obligations, that complexity in financial records is not a valid basis to refuse production, and that earlier endorsements did not vary the consent order.

The court further held that editing or expunging portions of financial statements was not permitted.

The defendants were ordered to produce the required materials within 30 days, failing which the plaintiffs could move to strike the statement of defence.

Following earlier judgments concerning the sale of a winery business, the respondent sought costs related to proceedings leading to the order directing that the winery be listed for sale.

The moving party requested partial indemnity costs after the court found that the opposing parties’ proposed sale arrangements were inconsistent with the court’s earlier judgment and appeared designed to delay the sale.

The court considered the financial circumstances of the parties and the context of the dispute involving a failed winery venture funded by an investor and operated by the applicants.

Despite the moving party’s general success, the court declined to award costs.

The court cautioned that failure to cooperate with the ordered sale could result in significant future cost consequences.