Raymond Gary Colautti

This ruling addresses a costs application following the dismissal of an injunction application brought by the applicants against the respondent City.

The applicants had sought to prevent the destruction of municipal election records, alleging wrongdoing in the 2014 municipal election.

The injunction was initially granted on an interim basis, pending a pre-enquete hearing in the Ontario Court of Justice, which ultimately found no basis for charges.

The Superior Court then dismissed the injunction application.

The City sought substantial indemnity costs, while the applicants argued against liability for costs, claiming public interest litigant status.

The court found the applicants liable for costs due to their lack of success, the serious and unfounded nature of their allegations, and their vexatious conduct during litigation.

The court rejected the public interest litigant claim, particularly for one applicant who had sought a personal financial settlement to abandon the allegations.

Partial indemnity costs were awarded to the City, considering the in camera nature of the pre-enquete and the right of citizens to lay private informations.

The court determined costs following a successful summary judgment motion by the Belleville defendants, dismissing the action against them.

The plaintiffs sought to defer the costs decision or reduce the quantum, arguing potential Bullock/Sanderson orders, impecuniosity, and public interest litigation.

The court dismissed the deferral request, finding no exceptional circumstances to deviate from the normative approach to costs.

It found the plaintiffs were of modest means but not impecunious, requiring robust evidence for such a claim.

The court also rejected the "pro bono litigant" analogy for parties represented under a contingency fee agreement, citing the Solicitors Act.

Ultimately, costs were fixed at $47,801.47, jointly and severally against the plaintiffs, reflecting a reduction from the partial indemnity amount due to the plaintiffs' modest means and access to justice considerations.

The police defendants brought two motions: one to exclude the public from the court hearing pursuant to s. 135(2) of the Courts of Justice Act, and another to seal the file pursuant to s. 137(2) of the Courts of Justice Act.

Both motions were dismissed.

The court noted that the defendants could seek public exclusion on a hearing-by-hearing basis to address concerns over the release of personal and identifying information of complainants and minor witnesses.

Material for a future summary judgment motion (Rule 20) may be sealed upon filing, subject to the motion judge's discretion.

Costs were reserved.

The respondent brought a motion to remove the applicant's solicitor, Ms. Avery, from the record in contempt proceedings.

The respondent argued that Ms. Avery must testify regarding her attendance at a police station with the applicant on October 7, 2015, and therefore could not continue as counsel.

The applicant opposed removal, arguing that Ms. Avery's evidence did not meet the high threshold of materiality and necessity required to deprive him of counsel of choice.

The court dismissed the motion, finding that the evidence was available from other sources and did not reach the exceptional circumstances threshold required for removal.

The defendants sought leave to appeal to the Divisional Court from an order requiring production of an environmental report over which litigation privilege was claimed.

The report had been referenced in an affidavit and supported by an invoice attached as an exhibit.

The court considered whether referencing the report and attaching payment documents constituted a waiver of litigation privilege and whether the dominant purpose test had been properly applied.

Applying Rule 62.02(4) of the Rules of Civil Procedure, the court found conflicting authority and concluded there was reason to doubt the correctness of the earlier order compelling production.

Because the issues regarding litigation privilege and waiver had broader importance to litigation practice, leave to appeal was granted.

Following dismissal of an application alleging that a municipality and its mayor and councillors conspired in bad faith to block a bridge expansion project through heritage and demolition control by-laws, the court determined the issue of costs.

The court found the allegations of conspiracy, illegality, and bad faith against the municipal defendants to be entirely without merit and emphasized that unsubstantiated allegations of dishonesty justify elevated costs.

Applying the principles in s. 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, the court awarded substantial full indemnity costs to the successful municipal respondents and individual councillors, subject to proportionality considerations reflecting differing levels of participation.

The court held that both the applicants and the Canadian Transit Company—though formally a respondent but aligned with the applicants—were jointly and severally responsible for the costs award.

The defendants brought a motion to remove the plaintiff’s law firm as solicitors of record on the basis of conflict of interest.

A lawyer associated with the firm had previously been retained by the hospital defendant to assist with workplace conflict mediation and had obtained confidential information while acting in that capacity.

The court found that the lawyer was an associate of the firm and that the hospital was therefore a client of the firm.

Applying the “bright line” rule from R. v. Neil and the principles from MacDonald Estate v. Martin, the court held that a law firm cannot act against a current client in directly adverse litigation absent informed consent.

Because confidential information was obtained and no effective screening measures existed, the firm was disqualified.