R. Clinker

Following a trial regarding a construction contract dispute where the plaintiff was substantially successful, the parties could not agree on costs.

The plaintiff sought costs of $63,898.45, relying on a Rule 49 offer to settle.

The defendants argued the plaintiff should be denied costs under Rule 76.13(3) because the action should have been pursued under the simplified procedure.

The court found it was reasonable for the plaintiff to have proceeded under the ordinary procedure given the initial construction lien claim and the need for viva voce evidence to resolve credibility issues.

The court awarded the plaintiff costs of $40,000 inclusive.

The plaintiff and defendant, who are brothers, were involved in a long-standing dispute over access to jointly owned camp properties via a railway crossing.

The dispute culminated in a physical altercation after the defendant locked a gate to prevent the plaintiff's access.

The plaintiff sued for nuisance, assault, and battery, while the defendant counterclaimed for property damage to his ATV and unjust enrichment for road and crossing improvements.

The court dismissed the plaintiff's claims, finding the nuisance was trivial and the physical injuries were either non-compensable or sustained during a consensual fight.

The defendant's counterclaims were also dismissed, as the ATV claim was barred by the Insurance Act and the unjust enrichment claims were either statute-barred or lacked merit.

The plaintiff contractor sued the defendant homeowners for unpaid amounts and extras on a home renovation project.

The defendants counterclaimed for overpayment and deficiencies, arguing the contract was for a lower 'turn-key' price.

The court found the contract price was $183,500 plus HST, and the defendants breached the contract by unreasonably terminating it.

The plaintiff was awarded the balance owing plus proven extras on a quantum meruit basis, less credits for incomplete and deficient work, resulting in a net judgment of $61,940.73 for the plaintiff.

The plaintiff sued the defendant foundation after it rescinded a scholarship award following her participation in a national selection event.

The defendant moved for summary judgment, arguing that a liability waiver signed by the plaintiff barred the claim.

The court applied the Tercon test for enforcing exclusion clauses and found that the broadly worded waiver applied to the circumstances, was not unconscionable, and did not violate public policy.

The court granted summary judgment and dismissed the plaintiff's claim.

The plaintiff moved to amend its statement of claim to continue the action under the simplified procedure.

The defendants did not oppose the amendment but sought costs unnecessarily incurred under Rule 76.13.

The court previously awarded these costs and reserved the costs of the motion itself.

In this decision, the court determined the quantum of costs for the successful defendant, Concrete Walls, fixing them at $10,000 plus HST on a partial indemnity basis.

The plaintiff moved to amend its statement of claim to reduce its damages from $500,000 to $60,461.87, thereby transferring the action from the ordinary procedure to the simplified procedure.

The defendants consented to the amendment but sought substantial indemnity costs for expenses unnecessarily incurred by the plaintiff's initial choice of procedure.

The court found that the plaintiff knew or should have known the claim fell within the simplified procedure limits before issuing the claim.

The court granted the amendment and ordered the plaintiff to pay the defendants' unnecessarily incurred costs and disbursements on a substantial indemnity basis, deferring the issue of Rule 76.13(3) cost consequences to the trial judge.

The Estate Trustee sought court direction regarding the residue of a will, as the named charitable beneficiary, Paroisse Sainte-Therese-de-L’Enfant-Jesus, had dissolved before the testator's death.

The court applied the cy-près doctrine, finding a general charitable intention on the part of the testator.

The residue was directed to La Fabrique de la Paroisse Sainte-Sophie, which continued the work of the original parish the testator had strong ties to, thereby honouring the testator's wishes.

The plaintiff, Perhol Construction Ltd., moved to set aside an administrative dismissal of its action for delay, seeking to revive its claim for $450,000 against the defendants, 1698358 Ontario Ltd. o/a “Aloft International” and the Estate of Donald Wing.

The action had been dismissed by the local registrar under Rule 48.14.

The Estate opposed the motion, arguing prejudice and lack of success prospects.

The court found acceptable explanations for the delay, including compassionate reasons, issues with counsel, and the Estate's own non-compliance with court orders.

The court also found no significant non-compensable prejudice to the Estate.

The motion to set aside the dismissal was granted, and the action was revived with a new litigation timetable.

No costs were awarded.

The defendant Canada Border Services Agency (CBSA) brought a motion for summary judgment seeking dismissal of the plaintiffs' negligence and Occupier's Liability Act claims arising from a slip and fall.

CBSA argued it was not negligent, had a reasonable maintenance system, and that co-defendant Abitibi was solely responsible for maintenance.

The plaintiffs asserted genuine issues for trial regarding whether the agreement absolved CBSA of liability and whether CBSA met its duty of care.

The court dismissed CBSA's motion, finding genuine issues for trial regarding CBSA's reasonable care in monitoring Abitibi's maintenance performance, particularly given the informal inspection system and lack of documentation.

The moving party brought a motion for directions challenging the validity of his late mother's 2006 will, alleging lack of testamentary capacity and undue influence by his brother, the responding party.

The responding party brought a cross-motion to set aside or vary a preservation order previously granted without notice.

The court found that the moving party met the minimal evidentiary threshold required to call the will's validity into question and granted the order for directions.

The court also varied the preservation order to narrow its scope, finding that while the original order was too broad, the assets in dispute met the test for preservation.

The applicant, Marilyn Ellen Mihalcin (Sally), sought to amend her pleadings to include an equalization claim against the estate of her deceased husband, Frank Mihalcin, and to extend the six-month limitation period for filing such a claim under the Family Law Act (FLA).

The court applied the three-part test under FLA s. 2(8) for extending time limits: apparent grounds for relief, delay incurred in good faith, and no substantial prejudice.

The court found that the applicant failed to provide sufficient evidentiary basis to demonstrate apparent grounds for relief, as no financial statement was filed to show an entitlement to an equalization payment.

Furthermore, the applicant failed to prove that the delay in formally filing the election was incurred in good faith, citing vague evidence regarding her former solicitor's actions.

While the court agreed that no substantial prejudice would arise, the failure to satisfy the first two criteria, coupled with insufficient grounds for exercising residual judicial discretion, led to the dismissal of the motion.

The plaintiff, J.I.L.M. Enterprises & Investments Limited, sought costs following a successful trial where it was awarded damages for breach of an insurance contract and punitive damages against INTACT Insurance.

The plaintiff requested substantial indemnity costs of approximately $350,000 for fees and $124,000 for disbursements.

The defendant, INTACT, argued for partial indemnity costs, a reduction for secretarial time, improper claims, and a 25% discount for divided success.

The court awarded the plaintiff costs on a partial indemnity basis, fixing fees at $210,000 plus HST, and disbursements and taxes on disbursements at $115,000, after considering the complexity, importance of issues, and a modest reduction for divided success on certain claims.

The moving party defendant brought a motion to dismiss the plaintiff's claim, arguing that the plaintiff, her elderly father, had not authorized his lawyer to commence the action.

The defendant relied on Rule 15.02 of the Rules of Civil Procedure to demand proof of authority.

The plaintiff's lawyer provided an affidavit confirming he received instructions directly from the plaintiff.

The court dismissed the motion, finding that the solicitor's affidavit was sufficient to satisfy the requirements of Rule 15.02, particularly given the plaintiff's illiteracy and use of a mark to sign documents.

The court issued an addendum to clarify a previous judgment following a teleconference with counsel.

The reasons were modified to specify that the replacement cost owing by the insurer is payable upon satisfactory proof that the actual cash value (ACV) funds have been expended for rebuilding or replacement.

The plaintiff's motel/restaurant complex was partially destroyed by fire, leading to an insurance claim with INTACT.

The insurer delayed payment for nearly three years, driven by an unsubstantiated arson investigation and adversarial conduct, including misleading Crime Stoppers ads.

The plaintiff sued for breach of contract, replacement cost, lost profits, and punitive damages for bad faith.

The court found INTACT breached its duty of good faith by prolonging the investigation without reasonable grounds and delaying payment.

The plaintiff was awarded an increased replacement cost (conditional on rebuilding), lost profits for the period of delay, and significant punitive damages for the insurer's high-handed conduct.

The plaintiff commenced a construction lien action against the defendants for unpaid cottage renovations.

The defendants counterclaimed for defective work, but later agreed to discontinue the counterclaim without costs after a fire damaged the property, intending to pursue a separate subrogation claim.

The defendants subsequently sought leave under s. 67.2 of the Construction Lien Act to bring a motion to adjourn the upcoming trial and set aside their notice of discontinuance, arguing the issues should be consolidated.

The court dismissed the motion, finding the adjournment was not 'necessary' under the Act, would delay the summary procedure, and would prejudice the plaintiff who had relied on the agreement to discontinue.