P.H. Howden

Neighbouring property owners were engaged in protracted litigation concerning drainage and elevation changes caused by fill placed on the defendants’ property.

Earlier court orders required the construction of a retaining wall according to an agreed engineering design, with costs to be borne by the defendants.

After construction was completed, the plaintiffs sought payment of outstanding balances to the contractor and engineer from funds held in court and an order requiring the defendants to pay the remaining amount.

The defendants argued the wall was built according to a materially different plan than the one approved by court order and consent.

The court held that the work had proceeded without prior approval despite deviations from the approved design and costs exceeding the estimates, and required further affidavit evidence from the supervising engineer addressing the cost impact of those deviations before determining the remaining issues.

Homeowners sued a construction manager for breach of contract and negligence arising from defects in the construction of a custom waterfront home.

The court considered whether the builder failed to perform work in a good and workmanlike manner, focusing on water infiltration due to improper siding, masonry, flashing, and air‑barrier installation, as well as drywall and interior trim deficiencies.

Expert evidence established multiple violations of the Ontario Building Code and improper installation practices that compromised the rain‑screen system and voided the siding manufacturer’s warranty.

Claims relating to the deck and fascia were not proven, but the court accepted evidence that exterior wall systems, drywall, and portions of interior trim were defective.

Damages were awarded based largely on the plaintiff’s engineering expert’s remediation estimate, and the court rejected the defendant’s argument that damages should be reduced for betterment due to the plaintiffs’ years of use of the home.

Following a successful motion compelling the plaintiff to attend an occupational therapy examination, the defendant sought costs on a partial indemnity basis.

The court assessed the reasonableness of the claimed fees and time spent by counsel and a junior lawyer or paralegal, including preparation and attendance at the hearing.

Applying the principles under Rule 57.01 regarding fairness and reasonable expectations, the court found the claimed preparation time excessive compared with the responding party’s preparation time.

The court reduced the fees allowed and also limited recovery for travel time.

Costs were fixed at a reduced amount payable by the plaintiff.

Following a successful fraud trial brought under s. 38 of the Bankruptcy and Insolvency Act, the court determined the appropriate scale and quantum of costs payable to two successful creditor plaintiffs.

The defendants had engaged in fraudulent conveyances, document alteration, and litigation conduct that delayed the trial and attempted to mislead the court.

The court held that such conduct justified an award of full indemnity costs, an exceptional remedy reserved for egregious dishonesty and abuse of the judicial process.

After reviewing the draft bills of costs, the court reduced certain duplicative and insufficiently documented claims but fixed substantial full indemnity costs payable to each plaintiff.

The defendants were held jointly and severally liable for the costs, payable forthwith.

Costs decision following an application concerning ownership and control of a lakeside promenade shown on a subdivision plan.

The municipality was largely successful in establishing ownership of the land held for the benefit of the public and immunity from claims of adverse possession, though it failed on its argument that the land constituted a public highway and the respondents secured a future trial on laches regarding existing shoreline structures.

The respondents argued that the proceeding constituted public interest litigation and that success was divided.

The court found the municipality to be the more successful party but recognized the respondents’ contribution to resolving a longstanding public dispute and to advancing legal issues affecting public access.

Applying reductions for the public interest component and the respondents’ cooperative conduct, the court substantially reduced the municipality’s recoverable costs.

Appeal from a Master’s order staying an action commenced in Newmarket relating to a construction project that was also the subject of multiple lien proceedings in Toronto.

The Master had concluded that the proceedings involved overlapping facts and legal issues and ordered a stay of the entire Newmarket action pending resolution of the Toronto lien action.

The Superior Court held that the Master lacked jurisdiction to grant a stay of the separate action because such relief must be granted by a judge under the Courts of Justice Act and the Rules of Civil Procedure.

The court further found that the Master erred by granting relief beyond what was requested in the notice of motion, contrary to principles of procedural fairness.

The appeal was allowed and the stay order set aside, but the court ordered that non‑trust claims from the Newmarket action be incorporated into the Toronto lien proceedings while permitting the trust claims to proceed separately.

Following a construction lien trial where the plaintiff subcontractor obtained judgment against the general contractor, the court determined the costs of the action.

The issues included whether success was divided, the appropriate scale of costs following a rejected offer to settle under Rule 49.10 of the Rules of Civil Procedure, and whether the defendant could recover costs associated with the owner’s legal expenses and the removal of a lien from title.

The court held that the plaintiff was the more successful party and had beaten its pre‑trial offer, entitling it to partial indemnity costs up to the offer date and substantial indemnity thereafter.

However, because the plaintiff unnecessarily kept the owner in the action after the lien was vacated, the court allowed a set‑off representing the reasonable portion of the owner’s legal costs.

Final costs were fixed in favour of the plaintiff after deductions.

The guardian of an incapable person brought a motion to vary a prior guardianship order that had been made on consent, seeking to change a provision requiring placement in a long‑term care facility in the Hamilton area to permit placement in Barrie.

The court held that consent orders are final and may only be set aside on grounds analogous to those for setting aside a contract, such as fraud or failure to reflect the parties’ true intention.

The evidence relied on by the moving party largely pre‑dated the original consent order and did not establish any change in circumstances.

The motion materials also failed to identify the proper statutory authority under the Substitute Decisions Act for a motion for directions.

The court dismissed the variation request without prejudice but granted a consent request to delete another paragraph of the prior order.

A solicitor brought a motion to strike portions of a client’s affidavit filed in opposition to confirmation of a Report and Certificate of Assessment under the Solicitors Act.

The solicitor argued that the affidavit improperly raised issues about the retainer that should not be revisited after the assessment hearing and that the confirmation motion was analogous to an appeal limited to the record before the assessment officer.

The court found that the moving party had not identified any statutory or Rules of Civil Procedure authority permitting the striking of the affidavit based solely on its content.

Questions regarding the admissibility of the affidavit and the permissible scope of evidence on the confirmation motion were matters for the judge presiding over that hearing.

The motion was adjourned to be determined by the judge hearing the confirmation motion, with costs left to that judge’s discretion.

The defendants brought a motion under Rule 37.14(1)(b) and Rule 59.06 of the Rules of Civil Procedure to set aside a summary judgment obtained against them for possession of their home after neither they nor their counsel appeared on the original motion.

The court applied the discretionary factors governing relief from orders made in a party’s absence, including proof of accident or mistake, promptness of the motion, absence of prejudice, and the underlying merits of the defence.

The defendants demonstrated that the failure to appear resulted from a mistaken belief that counsel had been retained to attend the motion.

The court further found a serious issue regarding alleged nondisclosure and conflicts of interest by an individual who acted simultaneously as financial advisor, mortgage broker, and real estate agent while connected to the mortgagee corporation.

Given the arguable defence and lack of prejudice, the court set aside the judgment and permitted the defendants to amend their defence subject to continuing mortgage payments.

In a family law proceeding, the respondent mother brought a motion to strike the father's motion to change a final child support order due to the father's failure to pay prior cost orders and ongoing support arrears.

The court reviewed earlier cost orders requiring the father to pay $3,000 in costs in 2002 and $3,000 in costs in 2003, both with interest.

The court found that neither order had been satisfied and rejected the argument that payments through the Family Responsibility Office toward support arrears could be treated as payment of costs.

The court ordered the father to pay the outstanding costs plus interest directly to the mother before the scheduled trial management conference.

The court further directed that if the amounts were not paid by the specified date, the father's motion to change would be struck and he would be barred from bringing further motions until the costs were fully paid.

In a personal injury action, the defendants sought an order compelling the plaintiff to attend an occupational therapy assessment to address alleged functional limitations and future care costs.

The plaintiff opposed the request, arguing that two defence medical examinations had already occurred and that any occupational therapy assessment should be limited to an interview.

The court considered its jurisdiction under s. 105 of the Courts of Justice Act and the developing jurisprudence permitting assessments by non-medical practitioners where reasonably required.

Given that the plaintiff intended to rely on an occupational therapist’s future care cost analysis at trial, fairness required that the defence be permitted to obtain its own functional assessment.

The court concluded that the requested examination, including physical functional testing, was necessary and not unreasonably intrusive.

The plaintiffs, creditors of the bankrupt defendant, brought an action to set aside the conveyances of multiple real properties as fraudulent.

The defendant had transferred the properties to related individuals and shell corporations for nominal consideration shortly after defaulting on a business loan.

The court found that the defendant engaged in a pattern of dishonest conduct, including forging documents and manipulating trust declarations, to shield her assets from creditors.

Applying the balance of probabilities standard, the court held that the conveyances were fraudulent and void under the Fraudulent Conveyances Act.

The properties were ordered to be sold with proceeds distributed to the plaintiffs and the bankruptcy trustee.

The applicant mother brought a motion seeking reversal of a prior custody order and a no-contact order against the respondent father, together with orders requiring participation in a reunification program.

The respondent brought a motion to set aside parts of a prior consent order directing attendance at the program.

The court found that the program involved a lengthy process with extensive decision‑making authority delegated to its director and that there was no independent or peer‑reviewed evidence of its efficacy.

The judge held that the court could not cede its statutory responsibility to determine the best interests of the children to a program lacking evidentiary support.

The respondent’s motion to vacate portions of the July 4, 2013 order was granted and the applicant’s motion was dismissed.

The plaintiff subcontractor brought a construction lien action against the defendant general contractor for unpaid contract amounts and extras on a school renovation project.

The defendant argued that no amounts were due under the contract's 'pay when paid' provisions and claimed back-charges for uncompleted work and a PST credit.

The court held that the Construction Lien Act supersedes the contract's payment terms.

The court allowed most of the plaintiff's claims for extras, dismissed the defendant's claim for a PST credit, but allowed the defendant's back-charge for uncompleted brickwork.

The plaintiff was awarded a net judgment of $27,450.95.

The Township of Oro-Medonte brought an application for a declaration that a strip of waterfront land known as Lake Shore Promenade, shown on a 1914 plan of subdivision, was a public highway owned by the municipality.

The respondent abutting lot owners argued that the land was not a public highway and claimed possessory title through adverse possession, having maintained the land and built shore-related structures on it for decades.

The court held that while the original owner intended to dedicate the land as a public highway, the Township's acceptance of it as such was void because the land did not meet the statutory width requirements for a highway in 1914.

Instead, the land was held by the Township in trust for the public as an access way and lakeside park.

The court further held that municipally owned land held for public benefit is immune from adverse possession claims, and in any event, the respondents failed to establish exclusive and adverse possession.

However, the court found a prima facie case that the doctrine of laches could apply to prevent the Township from removing existing shore-related structures due to its long-standing acquiescence, and directed a trial on that issue.

The moving defendants sought an injunction restraining the plaintiff mortgagee from completing a power of sale closing scheduled for the following day.

The dispute arose in a mortgage enforcement action where the defendants had filed a statement of defence and a request to redeem after a default judgment had been set aside.

The court held that the defendants retained an equitable right to redeem under the Rules of Civil Procedure and that the plaintiff could not render that right nugatory by proceeding with a power of sale after commencing a foreclosure or sale action.

Applying the test for an interlocutory injunction, the court found a prima facie case, irreparable harm through the loss of the defendants’ equitable interest in the mortgaged property, and a balance of convenience favouring the defendants.

The court therefore restrained the proposed sale until the redemption period expired and the mortgage accounts were taken and judgment rendered.

The court determined costs following a trial in which the plaintiff obtained judgment exceeding its earlier settlement offer.

The issues included the appropriate prejudgment interest rate, the applicable scale of costs under Rule 49.10 of the Rules of Civil Procedure, and whether the plaintiff’s claimed fees were excessive.

The court rejected the plaintiff’s request for a higher prejudgment interest rate and applied the statutory rate under the Courts of Justice Act.

Because the plaintiff obtained a judgment more favourable than its settlement offer, it was entitled to partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

The court reduced the fee component by 12% to reflect the substantial indemnity scale rather than full indemnity and fixed total fees at $50,000 plus HST, with disbursements of $5,134.16 plus HST.

Following a three-week family law trial concerning custody and care of children, the court issued supplementary reasons to determine unresolved financial matters.

The court addressed retroactive child support arrears, s. 7 special expenses, allocation of assessment costs, responsibility for reunification therapy expenses, and management of the children’s RESP.

The court refused to consider new evidence or recalculations not introduced during trial and limited its determinations to evidence properly before the court.

The respondent was ordered to pay confirmed child support arrears and outstanding s. 7 expenses from the proceeds of sale of the matrimonial home, and to bear two-thirds of the reunification therapy costs.

The parties agreed that the applicant would continue managing the children’s RESP for future post-secondary education expenses.

In a high‑conflict family law proceeding involving allegations of parental alienation and significant breakdown in the parent‑child relationship, the court issued detailed parenting, therapeutic, and financial orders following trial.

The court granted custody of the children to the respondent father subject to supervision by the Children’s Aid Society and a structured reunification process designed to restore the children’s relationship with the applicant mother.

Extensive therapeutic intervention through a specialized centre was ordered for the parents and children, with reporting requirements and a scheduled review.

The court also made orders concerning access, child support, section 7 expenses, pension division, and property issues.

The decision emphasized reunification therapy, parental conduct requirements, and court oversight pending review.