P.J. Moore

A masonry subcontractor sued a residential home builder and its principals for unpaid invoices relating to masonry work across several housing projects.

The central dispute concerned whether the parties had agreed that the subcontractor could charge additional amounts for masonry work associated with minor grade variations on building lots.

The court accepted the builder’s evidence that, after earlier disputes, the parties agreed that only major grade changes such as walk‑outs, walk‑ups, or look‑outs would justify extra charges.

Numerous individual invoice disputes and counterclaims were resolved on the evidence, resulting in partial recoveries and credits between the parties.

Claims under Part II of the Construction Lien Act alleging breach of trust and personal liability against the corporate principals were dismissed due to lack of evidence of trust breach.

Following dismissal of an application concerning ownership and removal of a boundary tree under s. 10 of the Forestry Act, the successful respondents sought costs on a full indemnity or substantial indemnity basis, alleging abusive litigation conduct.

The court reviewed the jurisprudence governing elevated costs awards and confirmed that such awards are reserved for rare circumstances involving reprehensible, scandalous, or outrageous conduct.

The court found that the application raised a legitimate issue of statutory interpretation and that the parties conducted the litigation professionally and without abuse of process.

As none of the exceptional circumstances required for elevated costs were present, costs were fixed on a partial indemnity basis.

The respondents were awarded $10,000 in fees plus HST and disbursements of $2,951.48 plus HST.

Following a jury trial arising from a motor vehicle accident in which the plaintiff recovered $794,603 in damages, the court determined the appropriate costs award.

The plaintiff sought partial indemnity costs to the date of an offer to settle and substantial indemnity costs thereafter under Rule 49.10 of the Rules of Civil Procedure.

The defendants argued the plaintiff’s legal fees and disbursements were excessive, including the use of two senior counsel and multiple expert reports.

The court found the litigation complex and lengthy, noting the plaintiff’s complete success at trial and the defendant’s failure to make reasonable settlement offers.

Applying the discretion under s.131 of the Courts of Justice Act and Rule 57 principles, the court fixed costs significantly in favour of the plaintiff while disallowing certain expert disbursements for witnesses not called at trial.

Former clients applied under the Solicitors Act to have legal accounts rendered by their former law firm assessed after paying more than $300,000 in fees and disbursements.

The respondent law firm argued the application was barred by the 12‑month limitation in s. 4 of the Solicitors Act, that the accounts had been paid, and that the application constituted an abuse of process.

The court held that commencing an application within 12 months preserves the right to assessment and that, in any event, the two‑year limitation under the Limitations Act may apply.

The court found “special circumstances” under s. 11, including the unexpectedly large fees, the pressure to promptly pay accounts, and the clients’ limited understanding of their right to challenge the bills.

However, because the clients had previously represented certain work as reasonable when seeking costs before another judge, those portions of the accounts were excluded from review.

The remaining portions of the accounts were referred for assessment.

Following earlier motions in a family law proceeding concerning parenting arrangements, the court addressed costs after the parties failed to reach agreement.

The successful party had served a compliant and reasonable offer to settle before the motions and later provided a detailed bill of costs and a further settlement offer regarding costs, both of which went unanswered.

Applying rules 18 and 24 of the Family Law Rules, the court considered fairness, the parties’ conduct, and the effect of the unaccepted offer to settle.

The court awarded partial indemnity costs up to the date of the offer and full indemnity costs thereafter.

Total costs were fixed and made payable within sixty days.

Following a trial in which the plaintiff’s claims were dismissed, the successful defendant sought an award of costs.

The court considered the discretion under s. 131 of the Courts of Justice Act and the principles in rule 57 of the Rules of Civil Procedure.

The court noted the unsuccessful plaintiff had advanced serious allegations of fraud and dishonesty that were unsupported by credible evidence and were not put to the defendant in cross-examination.

Although such allegations can justify substantial indemnity costs, the court also considered the plaintiff’s modest means and the overall fairness of the award.

Costs were fixed including disbursements and partial indemnity fees.

Following trial, the successful plaintiff sought elevated costs on a full indemnity basis, alleging reprehensible conduct by the defendant including theft from his employer and litigation conduct that required strict proof and additional legal research.

The court held that while costs are discretionary, they must be fixed on a principled basis and guided primarily by reasonableness under Rule 57 of the Rules of Civil Procedure.

The court declined to award elevated or full indemnity costs, noting the defendant had already been sanctioned through criminal proceedings and had limited financial means.

Considering proportionality, access to justice concerns, and the modest scale of the litigation, the court fixed costs at $25,000 rather than the $44,874.55 sought.

Following the respondents’ successful defence of a motion for injunctive and related relief, the court was required to fix costs after the parties failed to agree.

The respondents sought substantial indemnity costs exceeding $114,000, alleging that the applicants’ conduct was reprehensible and that a settlement offer justified enhanced costs under Rule 49.

The court held that the settlement offer was not timely and that the applicants’ conduct did not meet the high threshold for substantial indemnity costs.

Applying the factors in Rule 57.01, the court concluded the motion was relatively straightforward and that the respondents’ use of multiple counsel was unnecessary.

Costs were fixed on a partial indemnity basis at $50,000 inclusive of fees, disbursements, HST, and earlier costs awarded in the cause.

Following a jury trial arising from a motor vehicle accident, the plaintiff was found 10 percent liable while the defendants were found 90 percent liable, but the plaintiff failed to meet the statutory threshold for recovery of damages under the Insurance Act.

As a result, she recovered no damages and the defendants sought costs exceeding $100,000.

The court considered the discretionary framework under s. 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, including settlement offers, the importance and complexity of the case, and the plaintiff’s reasonable expectations.

Significant weight was placed on the plaintiff’s demonstrated impecuniosity and her self-represented status at trial.

The court held that awarding costs would have no practical utility and could deter access to justice for self-represented litigants.

Following a jury trial arising from a motor vehicle accident, the plaintiff’s claim failed because she did not meet the statutory threshold for recovery under the Insurance Act.

The defendants sought substantial costs exceeding $100,000.

The court considered the general rule that costs follow the event under s.131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, but also examined broader considerations including reasonableness, access to justice, settlement dynamics, and the plaintiff’s financial circumstances.

The evidence established that the self-represented plaintiff was impecunious and incapable of paying a significant costs award.

The court concluded that imposing costs would have no practical utility and could discourage unrepresented litigants from pursuing legitimate claims, and therefore declined to award any costs.

The plaintiff investor advanced funds through three private mortgage loans totaling $130,000 to a borrower who subsequently defaulted.

The plaintiff discontinued the action against the borrower after being unable to locate and serve her and instead pursued guarantors who had executed a written guarantee of the mortgage debt.

The defendants attempted to resile from admissions in their pleadings that they had signed the guarantee and argued the documents should not bind them.

The court rejected their evidence, finding they knowingly executed the guarantee in exchange for the plaintiff forbearing from immediate enforcement of the mortgage debt.

Judgment was granted enforcing the guarantee and awarding the principal, contractual interest under the mortgages, and costs including a substantial indemnity component due to litigation misconduct.

The applicant sought an interlocutory injunction preventing a neighbouring condominium developer from installing translucent panels on the west wall of a nearly completed building.

The applicant alleged the design breached a negative covenant allegedly agreed upon during planning approval discussions that the wall would contain no windows.

Applying the test from RJR-MacDonald Inc. v. Canada (Attorney General), the court held the applicant failed to establish a serious issue to be tried and provided no evidence of irreparable harm, particularly in the absence of expert evidence regarding impacts on future redevelopment or privacy.

The court also found the balance of convenience strongly favoured the developer because construction was substantially complete and the applicant had delayed unreasonably in bringing the motion.

The delay and resulting prejudice supported the equitable defence of laches.

A non-profit housing co-operative sought relief under s. 171.13 of the Co‑Operative Corporations Act to terminate a member’s membership and occupancy rights, obtain a writ of possession, and recover compensation for ongoing occupation.

The respondent argued the eviction process was unfair and attempted to revisit the allegations considered by the co‑operative’s board.

The court held that the board provided procedural fairness, complied with the Act and the co‑operative’s by-laws, and reasonably reached its eviction decision.

Courts should not interfere with internal decisions of housing co‑operatives absent bad faith, procedural unfairness, or patently unreasonable outcomes.

The application was granted and the respondent’s membership and occupancy rights were terminated.

The plaintiff employer brought a civil action against a former employee alleging conversion, fraud, and breach of fiduciary duty arising from systematic theft of store funds through manipulation of cash register void transactions.

The defendant had previously pleaded guilty to a criminal theft charge and paid partial restitution.

The court accepted the employer’s statistical analysis of business records showing excessive void transactions and found, on a balance of probabilities, that the defendant misappropriated $70,699.93.

The court further held the defendant occupied a position of trust as a night manager and therefore acted in a fiduciary capacity.

Judgment was granted for damages and a declaration that the debt arose from fraud while acting in a fiduciary capacity under the Bankruptcy and Insolvency Act and would survive bankruptcy; punitive damages were refused.

The plaintiff brought a civil action seeking damages for negligent police investigation and malicious prosecution following his arrest for criminal harassment and breach of probation.

Although he had been acquitted of the criminal charges, he alleged that police officers lacked reasonable and probable grounds and that family members knowingly provided false information leading to the charges.

The court held that the police investigation met the applicable standard of care and that the officers had reasonable and probable grounds to arrest and charge the plaintiff.

The evidence did not establish malice by the police or that the family members initiated or continued the prosecution through false information.

The plaintiff also failed to prove damages through medical or other evidence.

The applicant developer brought a motion for summary judgment seeking forfeiture of condominium purchase deposits after the respondent purchaser failed to pay a required third deposit and did not complete the transaction.

The respondent argued that forfeiture would be unconscionable and that the applicant suffered no damages.

The court held that the agreement of purchase and sale clearly provided for forfeiture upon default and that proof of damages is not required to enforce a forfeited deposit.

Finding the case document-driven with no genuine issue requiring trial and insufficient evidentiary response from the respondent, the court granted summary judgment and dismissed the counterclaim seeking return of the deposits.

The moving parties sought dismissal of a civil action brought by a former employee claiming damages relating to unpaid short‑term disability benefits and alleged breach of a settlement agreement.

The court held that the essential character of the dispute arose from the interpretation and administration of a collective agreement governing employment benefits.

Under the Labour Relations Act, such disputes fall within the exclusive jurisdiction of labour arbitration.

The court further held that even if jurisdiction existed, the claim was statute‑barred because the plaintiff knew or ought to have known by February 2009 that the benefits would not be paid, yet did not commence the action until June 2011.

The action was dismissed and costs were awarded against the plaintiff.

Following a family law trial addressing financial issues, the successful party sought costs after the court invited written submissions concerning the effect of settlement offers.

The court considered the impact of an informal offer to settle that did not strictly comply with Rule 18 of the Family Law Rules but remained open and was significantly exceeded by the judgment obtained at trial.

In determining costs under Rule 24, the court emphasized the complexity and importance of the issues, the reasonableness of the successful party’s conduct, and the opposing party’s failure to provide proper financial disclosure and inappropriate behaviour at trial.

The court held that the unsuccessful party’s conduct prolonged the proceedings and justified an enhanced level of costs.

Costs were awarded on a partial indemnity basis pre‑trial and enhanced costs for the trial itself.

The plaintiff sought summary judgment to enforce a credit agreement allegedly imposing personal liability on a corporate officer for approximately USD $750,000 in debts owed by a corporation.

The respondent argued the agreement was ambiguous, that he did not knowingly assume personal liability, and that key elements of contract formation—including consensus ad idem and consideration—were in dispute.

The court held that the standard form credit application was incomplete, ambiguous, and embedded with potentially onerous personal liability language that had not been clearly brought to the respondent’s attention.

Applying the summary judgment principles articulated by the Court of Appeal, the court found that the evidentiary record did not permit a full appreciation of the factual matrix surrounding the agreement’s formation.

As a result, genuine issues requiring a trial existed regarding the execution, interpretation, and enforceability of the alleged personal guarantee.

During a jury trial arising from a motor vehicle accident, the defendants brought a threshold motion under s. 267.5 of the Insurance Act to determine whether the plaintiff had sustained a permanent serious impairment of an important physical, mental, or psychological function.

The court assessed extensive medical evidence concerning shoulder injuries, surgeries, and alleged chronic pain.

While the court accepted that the accident aggravated a pre-existing shoulder condition requiring surgical treatment, it found the plaintiff’s evidence of ongoing limitations unreliable and inconsistent with medical opinions and surveillance evidence.

The court concluded that the plaintiff had not established, on a balance of probabilities, that any impairment was permanent, serious, or sufficiently impactful on important functions.

The statutory threshold was therefore not met and the claim for non‑pecuniary damages was barred.