Peter A. Simm

This decision addresses the determination of costs following an omnibus judgment in a protracted family and civil litigation spanning ten years.

The court fixed costs for three main issues: a dispute with a bailiff, claims between the Applicant and the Respondent/his mother, and an action against Abrahams LLP.

The court applied both Family Law Rules and Rules of Civil Procedure principles, emphasizing that successful parties are entitled to costs and that egregious or reprehensible conduct warrants full or substantial indemnity.

The Respondent and his mother were found to have engaged in abusive litigation conduct, leading to significant cost awards against them, while the Applicant was ordered to pay the bailiff's costs for an improper motion.

The parties have been embroiled in complex family and civil litigation since their separation in 2014.

Following a final judgment in the family law proceeding awarding the applicant over $1.5 million, the court addressed several outstanding issues through case management.

The court dismissed the applicant's motion under Rule 59.06 to reconsider a previous order regarding bailiff fees.

Applying the doctrines of issue estoppel and abuse of process, the court dismissed the respondent's remaining civil claims against the applicant and her former counsel.

The court also found that the respondent's mother, who had purchased some of the respondent's actions from his trustee in bankruptcy and held legal title to a property beneficially owned by the respondent, was bound by the court's previous factual findings and dismissed her claims.

The court ordered that if the respondent failed to pay the judgment within 45 days, the property would be seized and sold.

Finally, the court held it had jurisdiction under Rule 1(8) of the Family Law Rules to enforce outstanding costs orders made by the Court of Appeal.

The self-represented appellant appealed two Small Claims Court decisions arising from an auto repair dispute: a costs order following a successful nonsuit motion by one defendant, and a final order dismissing the action against the remaining defendants.

The Divisional Court dismissed the appeal, finding that the costs appeal required leave which was not sought, and that the trial judge made no palpable and overriding errors.

The court also rejected the appellant's allegations of procedural unfairness and judicial bias, noting the trial judge properly managed the proceeding and the appellant's unreasonable conduct.

The appellant appealed a master's decision dismissing its motion to stay a wrongful dismissal action on the basis of forum non conveniens.

The appellant argued the master erred in considering juridical advantage and in failing to follow a similar Superior Court decision.

The Divisional Court dismissed the appeal, finding the master correctly applied the Supreme Court's guidance in Van Breda regarding juridical advantage and properly exercised his discretion in weighing the factors.

The court held that the master was entitled to distinguish the prior Superior Court decision based on the unique circumstances of the case.

The applicant, a pediatric surgeon, sought an interlocutory injunction to prevent his employer, the Hospital for Sick Children, from suspending him with pay during an investigation into allegations of workplace misconduct.

The court applied the three-part test for interlocutory injunctions.

It found no serious question to be tried, concluding that an employer has an implied power to suspend an employee with pay for administrative reasons related to misconduct allegations, provided the suspension is necessary, in good faith, temporary, and with pay, as per Cabiakman.

The court also found no irreparable harm that could not be compensated by damages and determined that the balance of convenience favored the Hospital, as the suspension was crucial for a fair investigation and patient care.

The application for an injunction was dismissed, and costs were awarded to the respondent.

The defendant brought a motion to stay a wrongful dismissal action on the basis that Ontario was a forum non conveniens and that the dispute should instead be litigated in New York State.

The court accepted that Ontario had jurisdiction simpliciter because the defendant corporation maintained its registered head office in Ontario.

Applying the forum non conveniens analysis from leading authorities, the court held that the moving party had not established that New York was clearly the more appropriate forum.

Factors such as the Ontario employment contract, the defendant’s presence-based jurisdiction in Ontario, and the loss of legitimate juridical advantages in a U.S. at‑will employment regime supported maintaining the action in Ontario.

The motion to stay the proceeding was therefore dismissed.

The licensee, a thoroughbred owner, appealed a Director's ruling that suspended his licence for 12 months, imposed an $8,000 fine, and placed him on probation with conditions regarding the health and welfare of his horses.

Following mediation, the parties presented an Agreed Statement of Facts and Joint Submission on Disposition to the Ontario Racing Commission panel.

The panel accepted the joint submission, ordering a 12-month suspension (fully stayed), a $16,000 donation to Equine Guelph, $34,000 in costs to the Commission, and probation until October 2013 with conditions allowing unannounced random searches of his stabling areas.

The licensee appealed a Director's ruling that suspended his licence, imposed an $8,000 fine, and placed him on probation.

At the hearing, the parties proposed a consent order addressing procedural matters, including disclosure, witness statements, electronic hearings, and the adjournment of remaining motions.

The Panel accepted the proposed consent order, extended the stay of the suspension, and remained seized of the matter.

The applicants sought judicial review of a decision by the Ontario Racing Commission, which upheld a private racetrack's decision to suspend the applicant owner's racing and stabling privileges following the death of a 13-year-old racehorse during training.

The Divisional Court dismissed the application, finding that the Commission had jurisdiction to determine whether the public interest warranted interfering with the racetrack's private property rights.

The Court held that the Commission's decision was procedurally fair and reasonable, as the evidence supported the finding that the applicant failed to take reasonable precautions regarding the horse's fitness.

The applicants sought to extend a stay of a 12-month license suspension imposed by the Executive Director of the Ontario Racing Commission pending a judicial review.

The respondent argued the judicial review was premature as the applicants had not exhausted their right of appeal to the Commission.

Applying the RJR MacDonald test, the court found a serious issue to be tried regarding the lack of reasons for the suspension, irreparable harm to the applicant's racing operation, and the balance of convenience favouring the applicant.

The motion was granted and the stay was extended to allow the judicial review to be heard alongside a related application.

The licensee, a thoroughbred trainer, requested a stay of a Director's ruling that limited his licence to assistant trainer and placed him on probation for two years.

The Administration consented to the stay on the condition that a hearing on the merits be held no later than March 4, 2011.

The Chair of the Ontario Racing Commission granted the stay on those terms.

The licensee, Bruno Schickedanz, requested a stay of a Director's ruling that suspended his owner's licence for 12 months and imposed an $8,000 fine.

The Administration consented to the stay on the condition that a hearing on the merits be held no later than March 4, 2011.

The Chair of the Ontario Racing Commission granted the stay on those terms.

The appellants appealed a trial judgment finding the individual appellant personally liable for invoices related to crane dismantling work.

The trial judge found that the individual appellant contracted verbally with the respondent without disclosing that he was acting as an agent for a corporation.

The Court of Appeal dismissed the appeal, affirming the well-established legal principle that an agent who fails to disclose they are acting in that capacity will be held personally liable.

The appellant appealed a $60,000 costs award made by the Divisional Court following a one-day hearing.

The Court of Appeal found the award to be grossly excessive, disproportionate to similar proceedings, and violative of compensation principles underlying the costs grid.

The appeal was allowed, the costs award was set aside and reduced to $18,000, and the appellant was awarded $5,000 for the costs of the appeal and leave application.

The applicant sought judicial review of a decision by the Complaints Committee of the Board of Directors of Drugless Therapy-Naturopathy.

The applicant also brought a motion for an interim stay, while the respondent Board brought a cross-motion to quash the application.

The Board conceded that the Complaints Committee's proceedings were void ab initio because the Board lacked jurisdiction to delegate its disciplinary powers to a committee.

The court agreed, finding the proceedings and any resulting agreements void.

Consequently, the court allowed the cross-motion and dismissed the application for judicial review as an academic exercise.

The successful applicant sought costs of $98,000 on a substantial indemnity basis following a judicial review of a decision revoking his licence.

The court noted the substantial consequence of the matter and the time required, but found the claimed amount exceeded what was reasonably recoverable and what the respondent might have anticipated.

The court fixed the applicant's costs at $60,000.

The applicant sought judicial review of a decision by the Ontario Racing Commission revoking his horse racing licences for allegedly conspiring to fix a race.

The Commission's majority decision relied heavily on the uncorroborated evidence of an admitted liar who had made a deal to implicate the applicant, while ignoring exculpatory evidence and failing to explain why it disbelieved the applicant's witnesses.

The Divisional Court allowed the application, finding that the Commission's failure to provide adequate reasons for its credibility findings and penalty constituted a denial of natural justice and procedural fairness.

The matter was remitted to a differently constituted panel.

The applicant moved for a stay pending the hearing of his application for judicial review of a decision by the Ontario Racing Commission.

The court dismissed the motion, finding that the application was essentially an attempt to appeal on the facts, the applicant failed to demonstrate irreparable harm, and there was a four-month delay in bringing the application.

The applicant sought an order of mandamus to compel the Registrar of Motor Vehicles to reinstate his driver's licence following a suspension for impaired driving.

He argued that the six-month follow-up interview required by the Remedial Measures Program was not authorized by law.

The Divisional Court dismissed the application, finding that a purposive interpretation of the Highway Traffic Act and its regulations authorized the three-component program, including the follow-up interview.

Furthermore, the application was moot as the applicant's licence had expired and been suspended for other infractions.

Following the release of the majority reasons for judgment dismissing the appeal, the Court of Appeal received written submissions on costs.

Having regard to the respondents' success, the complexity and novelty of the issues, and the equities between the parties, the court awarded the respondents their costs on a partial indemnity basis fixed at $38,000 all inclusive.