Pierre Champagne

The appellant failed to appear in court for the hearing of his appeal, claiming he was advised by court staff that the appeal was not proceeding.

The court rejected this explanation but granted the appellant's request to withdraw the appeal.

The court noted the appeal would have failed on its merits regardless, and awarded costs of $13,000 to the respondent.

The plaintiff, having been wholly successful at trial and awarded damages including punitive damages, sought costs.

The plaintiff had served two Rule 49 offers to settle, both of which were beaten at trial.

The court awarded the plaintiff partial indemnity costs up to the date of the first offer and substantial indemnity costs thereafter, noting that the 2005 Costs Subcommittee guidelines for counsel fees are outdated.

Total costs of $140,360.11 were awarded.

A municipality sought a costs award of approximately $93,000 in relation to an application concerning enforcement orders under the Building Code Act, 1992 tied to the conversion of a former school into a retirement residence.

The application had not been finally adjudicated and most issues appeared to have been resolved without substantive judicial determination after the eventual issuance of a building permit.

The court held that entitlement to costs requires findings regarding success and the parties’ conduct, which were absent due to the lack of adjudication on the merits and limited judicial involvement.

Given the possibility that the matter resolved through compromise and the absence of clear success by either party, the court declined to exercise its discretion to award costs.

The municipality’s motion for costs was therefore dismissed.

The defendant sought costs after successfully setting aside an ex parte interim interlocutory Mareva injunction obtained by the plaintiffs.

The plaintiffs argued that costs should be determined after trial or awarded in the cause.

Applying the factors under Rule 57 of the Rules of Civil Procedure, the court considered success, the complexity of Mareva injunction proceedings, and the plaintiffs’ decision to proceed without notice despite the absence of urgency.

While the defendant sought substantial indemnity costs, the court held that the plaintiffs’ motion was not entirely groundless and awarded costs on a partial indemnity basis.

Costs of $17,000 inclusive of disbursements and HST were ordered payable in any event of the cause to preserve the plaintiffs’ access to justice.

The plaintiffs sought to continue an interim ex parte Mareva injunction freezing the defendant father’s assets in a civil action alleging long‑term physical and emotional abuse and seeking $7.65 million in damages.

The defendant moved to set aside the injunction, denying the allegations and disputing claims that he intended to dissipate assets.

The court applied the test for Mareva injunctions requiring a strong prima facie case, assets within the jurisdiction, and a real risk of asset dissipation.

The evidence supporting the abuse allegations consisted largely of contradictory affidavits and lacked independent corroboration, raising credibility issues that could only be resolved at trial.

The court held that the plaintiffs failed to establish a strong prima facie case and therefore set aside the interim Mareva injunction.

The appellant home inspector appealed a Small Claims Court judgment finding him liable for negligent misrepresentation and breach of contract regarding a roof inspection.

The trial judge had rejected the appellant's qualified expert witness and instead relied on the respondents' lay witness, who was not qualified as an expert, to establish the standard of care.

The Divisional Court allowed the appeal, finding that the trial judge erred in law by treating lay opinion evidence as expert evidence without proper qualification.

Without accepted expert evidence on the standard of care, there was no evidentiary foundation for a finding of negligence.

The appeal was allowed and the action dismissed.

The court reviewed documents listed in a supplementary affidavit of documents to determine the validity of claims for solicitor-client privilege.

The documents consisted of communications between a principal of the plaintiff corporation and U.S. counsel.

The court held that most of the communications remained privileged; however, certain documents either were not privileged or had privilege waived due to the plaintiffs’ pleadings placing the receipt of legal advice in issue.

Where the pleadings raised the question of whether the plaintiffs had legal representation or transactional advice during the relevant period, privilege was found to be waived for specific communications.

The court ordered production of certain documents while maintaining privilege over the remainder.

The plaintiffs brought a motion seeking leave to amend their statement of claim to discontinue certain plaintiffs, add a municipal lawyer as a defendant, and deliver a fresh as amended statement of claim alleging malicious prosecution and related torts.

The court held that the proposed addition of the new defendant was barred by the applicable limitation period under the discoverability principle, as the plaintiff had knowledge of the individual’s alleged involvement more than two years before the motion was argued.

The court found that merely delivering a motion before the limitation period expired did not suspend the running of time; the motion must be successfully argued within the limitation period.

As a result, the request to add the proposed defendant and amend the claim to seek damages against him was refused, although leave to discontinue certain plaintiffs was granted.

Costs were awarded against the moving party.

Following earlier interlocutory proceedings involving an injunction and Anton Piller order in a dispute concerning confidential engineering information and alleged misuse of intellectual property, the court determined the appropriate costs awards.

The responding party sought costs for obtaining the ex parte injunction and Anton Piller order and for successfully resisting a motion to set them aside.

Applying the factors in Rule 57 of the Rules of Civil Procedure, including success, complexity, proportionality, and reasonable expectations of the losing party, the court found the hourly rates and claimed time generally reasonable.

Although the moving parties achieved limited success in varying certain terms of the Anton Piller order, the injunction and order were maintained.

The court awarded partial indemnity costs to the responding party for the initial ex parte motion and the motion to set aside, with costs of a later motion left in the cause.

The appellant appealed a Small Claims Court decision dismissing his negligence and breach of contract claim against a home inspector.

The appellant alleged the inspector failed to identify wood rot during a pre-purchase visual inspection of a cottage.

The trial judge dismissed the claim, finding the appellant failed to prove the standard of care or a breach thereof, noting the absence of expert evidence.

The Divisional Court dismissed the appeal, holding that the trial judge's findings were reasonable and supported by the evidence, particularly the inspector's testimony that the rot was concealed and not observable during the initial visual inspection.

Former employees and a competing corporation moved to set aside or vary an interim injunction and Anton Piller order obtained ex parte by their former employer.

The employer alleged the employees copied large volumes of confidential engineering files relating to proprietary sonar technology before leaving to establish a competing business.

The court found strong prima facie evidence of copying confidential files in breach of confidentiality agreements, a risk of serious commercial harm, and a real possibility that electronic evidence could be destroyed.

The balance of convenience favoured maintaining the injunction and preservation measures.

The injunction remained in effect and the Anton Piller order was varied largely on consent while preserving seized materials under the supervision of an independent supervising solicitor.

The applicant, who is HIV positive, alleged discrimination in services on the basis of disability against a denturist and the College of Denturists.

The dispute arose from the denturist's refusal to provide a full refund and an itemized bill, and the College's handling of the subsequent complaint.

The Tribunal held a summary hearing and dismissed the application, finding no reasonable prospect of success as the applicant failed to point to any evidence linking the respondents' conduct to his disability.

The applicant sought judicial review of an interlocutory decision by the Law Society Hearing Panel dismissing her motion for a permanent stay of disciplinary proceedings.

She alleged procedural fairness violations because the panel considered public documents not entered in evidence, and raised language rights issues regarding the delayed translation of the reasons.

The Divisional Court dismissed the application as premature, finding no exceptional circumstances to justify fragmenting the administrative process.

The court held that both the procedural fairness and language rights issues should be raised before the Law Society Appeal Panel after a final decision.

The applicant sought judicial review of an interlocutory decision by the Law Society Hearing Panel refusing to permanently stay disciplinary proceedings against her.

She alleged breaches of procedural fairness and language rights, noting the Panel released its reasons in English and provided a French translation six weeks later despite the hearing being in French.

The Divisional Court dismissed the application as premature, finding no exceptional circumstances to justify fragmenting the administrative process.

The Court held that the applicant could raise both the procedural fairness and language rights issues before the Law Society Appeal Panel at the conclusion of the proceedings.

The appellants sought leave to amend their statement of claim in an action arising from a neighbour dispute over a right-of-entry permit and property excavation.

The motion judge denied leave to add claims for negligent misrepresentation and breach of fiduciary duty against the municipality and its by-law officer, and struck portions of the claim as a collateral attack on a prior injunction order.

The Court of Appeal upheld the dismissal of the negligent misrepresentation and fiduciary duty claims, finding no special relationship or reliance.

However, the Court allowed the appeal regarding collateral attack, holding that the appellants were seeking damages for the respondents' actions rather than attempting to invalidate the prior order.

The appellant appealed an order allowing the respondent to enforce an arbitration award.

The appellant argued that enforcement should be refused on public policy grounds under art. 36(1)(b)(ii) of the UNCITRAL Model Law because the respondent had brought related proceedings in the United Kingdom.

The Court of Appeal dismissed the appeal, holding that a legal dispute over choice of law and legal rights does not rise to the level of a public policy violation sufficient to defeat the enforcement of an arbitration award.

The appellants sued an investment advisor and his company for bad investments.

The insurer defended the action for over a year before denying coverage because the advisor sold securities, not insurance.

The advisor went bankrupt, and the appellants obtained an assignment of his rights against the insurer.

The appellants argued the insurer was estopped from denying coverage.

The Court of Appeal upheld the trial judge's finding that the insured suffered no prejudice from the insurer's conduct, as the insured was bankrupt and could not have defended the action anyway.

The appeal was dismissed.

The applicant association sought interim declaratory and injunctive relief to prevent the respondent regulatory college from enacting a proposed by-law for a compulsory insurance program.

The court dismissed the motion as premature, holding that administrative proceedings should not be fragmented and the matter should run its course before the college prior to any judicial review.

No costs were awarded due to the college's procedural missteps.

The applicant sought costs for an original motion before Justice Maranger and for a judicial review application before the Divisional Court.

The Law Society opposed the request, noting the applicant had mixed success as she did not obtain the permanent stay she sought.

The court agreed the applicant's success was mixed, as it merely maintained the interim stay pending an appeal before the Law Society Appeal Panel.

The court awarded the applicant $5,000 in costs for the motion before Justice Maranger, but declined to award costs for the judicial review.

The applicant appealed a Law Society Hearing Panel order suspending her licence for two and a half months.

She sought a permanent stay of proceedings, arguing her language rights were violated because the Law Society failed to form a francophone Appeal Panel in a timely manner.

The Divisional Court found that while the Law Society failed to demonstrate it took all necessary steps to fulfill its language rights duties, the applicant unilaterally began serving her suspension and did not show that allowing the appeal to proceed would be contrary to the interests of justice.

The application for a permanent stay was dismissed, but a temporary stay was continued until the appeal could be heard.