Peter J. Cavanagh

This is a costs endorsement following a successful summary judgment motion where the defendants' action was dismissed as statute-barred.

The defendants, as the successful parties, sought costs on a partial indemnity scale.

The plaintiffs opposed, arguing for a reduction based on the defendants' limited success on all grounds of the summary judgment motion and alleged conduct that lengthened the proceeding.

The court found no reason to depart from the usual rule that costs follow the event, rejecting the plaintiffs' arguments regarding distributive costs and alleged conduct.

The court fixed costs of the action at $156,599.20, inclusive of fees, disbursements, and HST, to be paid by the plaintiffs to the defendants.

This endorsement addresses the costs of a motion brought by the moving parties (Singh et al.) seeking consolidation of multiple actions, payment of outstanding costs orders against Talon International Inc. (Talon), and security for costs against Talon.

The court had previously dismissed the consolidation request, ordered Talon to pay existing costs or have its defence struck, and granted security for costs in one action.

In this costs decision, the court awarded partial indemnity costs to Val Levitan and the Trump parties, who successfully opposed the consolidation motion.

Costs were denied to Alex Shnaider, who was represented by the same counsel as Talon, and Talon itself did not seek costs.

The court declined to award substantial indemnity costs to Levitan, finding the settlement offer did not trigger such an award.

The applicant sought to amend a previous judgment to correct the commencement date for prejudgment interest on a recognized Indian judgment.

The court granted the amendment, changing the interest start date from April 20, 2015, to April 8, 2013, as per the original Indian judgment.

The applicant, Corona Steel Industry Private Limited, sought substantial indemnity costs from the respondent, Integrity Worldwide Inc., following its successful application to recognize and enforce an Indian judgment.

Corona argued for substantial indemnity due to the respondent's litigation conduct and based on an offer to settle.

The court found no basis for substantial indemnity due to the respondent's conduct, as their actions were within their rights to challenge the application.

Furthermore, the offer to settle did not qualify for Rule 49.10(1) consequences because it had effectively expired before the hearing.

Consequently, the court awarded costs on a partial indemnity scale, reducing the claimed hours due to Corona's initial failure to provide evidence on Indian law, which caused an adjournment.

The plaintiffs, Michael and Solbyung Coveley, brought a professional negligence action against their former law firm, Thorsteinssons LLP, and several lawyers, alleging negligent advice regarding tax appeals.

The defendants moved for summary judgment, arguing the action was statute-barred under the Limitations Act, 2002.

The court found that the plaintiffs knew or ought to have known of their claim by October 27, 2010, when they received advice that fundamentally contradicted earlier assurances about the strength of their tax appeals.

As the action was commenced on November 2, 2012, more than two years after discovery, the claim was statute-barred.

The defendants' motion for summary judgment was granted, and the action was dismissed.

The moving parties sought to consolidate 19 actions related to hotel condominium units in the Trump Tower, compel payment of outstanding costs orders against Talon International Inc. (Talon), and obtain security for costs against Talon.

The court dismissed the motion for consolidation, finding it unlikely to streamline proceedings and primarily a tactical move to enforce costs.

However, the court ordered Talon to pay existing costs awards in two specific actions within ten days, failing which its defence and counterclaim in those actions would be struck.

Security for costs was granted against Talon only in the Shah/Patel action, where Talon was the plaintiff and had insufficient assets, but denied in other actions where Talon's counterclaims were deemed defenses.

The applicant, Icona Hospitality Inc., sought an order under s. 61(1) of the Conveyancing and Law of Property Act to delete restrictive covenants from the title to its land.

The covenants restricted the site's use solely to a hotel.

Icona proposed a mixed-use high-rise redevelopment, arguing the covenants were spent or unsuitable due to changed planning policies and the area's designation as an Urban Growth Centre.

The respondents, beneficiaries of the covenants, opposed the application, citing potential negative impacts on their own development plans and market competition.

The court dismissed the application, finding that Icona failed to demonstrate that the covenants were spent or so unsuitable as to be of no value, or that their assertion by the respondents would be vexatious.

The court emphasized that the jurisdiction under s. 61(1) must be exercised with caution and an order will seldom be granted if prejudicial to the adjacent landowner, rejecting a simple balancing of monetary interests.

The plaintiff, Joe Swampillai, brought an action for long-term disability (LTD) benefits against his former employer, Royal & Sun Alliance Insurance Company of Canada (RSA), and Sun Life Assurance Company of Canada (Sun Life).

The defendants moved for summary judgment, arguing that a full and final release signed by Swampillai barred his claim.

Swampillai pleaded unconscionability to set aside the release as it pertained to LTD benefits.

The court found that the release was unconscionable regarding the LTD claim because the transaction was grossly unfair and improvident, Swampillai lacked independent legal advice on this specific aspect, there was an overwhelming imbalance in bargaining power, and RSA knowingly took advantage of his vulnerability.

Consequently, the release was set aside as it related to the LTD claim, and the defendants' motions for summary judgment were dismissed.

The applicant sought recognition and enforcement of a foreign judgment obtained in India against the respondent for unpaid goods.

The respondent opposed, arguing the expert evidence on Indian law was inadmissible due to bias, the Indian court lacked jurisdiction, the claim was statute-barred, and there was a denial of natural justice.

The court admitted the expert evidence, found a real and substantial connection to India, held the limitation period did not begin until the foreign appeal period expired, and found no denial of natural justice.

The application was granted and the Indian judgment was recognized.

The applicant, a foreign-trained medical doctor, sought judicial review of a Human Rights Tribunal of Ontario (HRTO) decision dismissing his application for lack of standing.

The HRTO had found that the applicant failed to allege his own rights were infringed regarding the allocation of residency positions.

The Divisional Court held that the HRTO's decision was unreasonable because the applicant had included evidence in his application showing he had applied for and been denied a residency position.

The application for judicial review was granted and the matter remitted to the HRTO.

Following a trial where the plaintiffs recovered $9,000 for wrongful distress, the court determined costs.

The plaintiffs were ordered to pay $9,000 in costs to two individual defendants against whom the action was discontinued at the opening of trial.

Because the plaintiffs recovered an amount within the monetary jurisdiction of the Small Claims Court and failed to tender evidence supporting their $80,000 claim, their costs against the remaining defendants were limited to the Small Claims Court scale, fixed at $6,098.64.

The defendant landlord was also ordered to pay the defendant bailiff's costs of $20,085.75 on a partial indemnity scale for unsuccessfully defending a crossclaim for indemnification.

Following the successful dismissal of the plaintiff's action under the anti-SLAPP provisions of the Courts of Justice Act, the defendant sought costs on a full indemnity basis.

The plaintiff argued for no costs or a reduced amount.

The court found no reason to depart from the presumptive entitlement to full indemnity costs under s. 137.1(7).

Costs were fixed at $20,000, inclusive of fees, disbursements, and HST.

The moving party brought a motion under Rule 34.10 of the Rules of Civil Procedure to compel the responding parties to produce documents in advance of cross-examinations on affidavits sworn in support of the responding parties' summary judgment motions.

The responding parties argued the motion was prohibited under Rule 48.04(1) because the action had been set down for trial, and that the requests were disproportionate.

The court held that Rule 48.04(1) did not bar the motion and the moving party had not waived the right to documentary discovery.

However, because the responding parties had never served affidavits of documents, the court dismissed the motion without prejudice, directing the responding parties to first serve affidavits of documents so that relevance and proportionality could be properly assessed.

Following the successful summary judgment motions by six third parties dismissing the third party claims against them, the court determined the costs to be awarded.

The defendants argued that costs for a prior summary judgment motion and an appeal should not be included.

The court found that the preparation for the prior motion and attendance at the appeal were incidental to the third party claims and awarded costs on a partial indemnity scale, rejecting a request for substantial indemnity costs.

The plaintiff and defendants both brought unsuccessful motions for summary judgment in an action for solicitor negligence arising from a medical negligence claim.

The court determined the costs for both motions.

The defendants were awarded $18,196.23 in costs for the plaintiff's motion, with expert disbursements of $9,570 ordered as costs in the cause.

The plaintiff was awarded $12,161.56 in costs for the defendants' motion, with the court reducing the plaintiff's claimed fees to reflect the fair and reasonable expectations of the unsuccessful party.

The defendant sought costs after successfully opposing the plaintiff's motion to quash an appeal.

The plaintiff argued that no costs should be awarded because the motion raised a novel jurisdictional question and was brought in good faith.

The court rejected the plaintiff's arguments, finding that the motion was not sufficiently novel to justify departing from the usual rule that costs follow the event.

The court awarded costs to the defendant on a partial indemnity scale in the amount of $8,166.51.

The appellant finance company appealed a Small Claims Court judgment awarding the respondent repair shop $15,594 for unjust enrichment.

The respondent had repaired a vehicle financed by the appellant but lost its statutory lien under the Repair and Storage Liens Act (RSLA) after failing to commence an action within the prescribed 90-day period.

The Divisional Court dismissed the appeal, holding that the RSLA does not constitute a complete code of remedies and that the loss of a statutory lien does not preclude a repairer from pursuing an equitable claim for unjust enrichment.

The plaintiff corporation purchased equipment from a tenant operating a kitchen manufacturing business.

The landlord subsequently distrained the equipment for unpaid rent owed by a subsequent tenant and sold the goods through a bailiff.

The plaintiff sued the landlord and the bailiff for trespass to goods.

The court found that the plaintiff owned the goods at the time of sale and that the landlord's distress was unlawful.

The court awarded damages of $9,000, representing the liquidation value of the goods, holding the landlord and bailiff jointly liable, but ordered the landlord to fully indemnify the bailiff.

The defendants in a personal injury action arising from a recreational tug-of-war game brought a third-party claim for contribution and indemnity against several other participants in the game.

Six of the third parties moved for summary judgment to dismiss the claim against them.

The court applied the Anns/Cooper test and found that the participants did not owe a duty of care to the plaintiff, as they did not organize the event, create the risk, or have a special relationship requiring them to take positive action to prevent injury.

The court granted the motions and dismissed the third-party claims.

The plaintiff was injured during a recreational tug-of-war game at a campground.

The defendants previously moved for summary judgment, which was granted but subsequently overturned by the Court of Appeal, finding a genuine issue for trial regarding vicarious liability.

The defendants brought a second motion for summary judgment.

The court dismissed the second motion, holding that the defendants were precluded by the doctrine of issue estoppel from relitigating the Court of Appeal's finding that there is a genuine issue requiring a trial.