Richard A. Lococo

The appellants appealed the dismissal of their motion for certification of a class proceeding regarding emissions 'defeat devices' in certain diesel vehicles.

The motions judge had denied certification on the basis that a class proceeding was not the preferable procedure, as the vehicles had been recalled and repaired, and there was no evidence of compensable loss.

The Divisional Court dismissed the appeal, finding no error in principle or palpable and overriding error of fact in the motions judge's conclusion that a class action was not the preferable procedure.

The applicant sought judicial review of a decision by the Minister of Municipal Affairs and Housing to adopt a transitional regulation exempting a proposed waste management facility from the natural heritage policies of the 2019 Growth Plan.

The applicant also sought to quash a Local Planning Appeal Tribunal (LPAT) decision that struck its appeal issues based on this regulation.

The Divisional Court held that the Minister exceeded his authority under s. 19(1)(d) of the Places to Grow Act, 2005, as the regulation did not address a genuine transitional matter but rather granted an exemption to key policies adopted by the Lieutenant Governor in Council.

The regulation was declared ultra vires, and the LPAT decision was set aside and remitted.

The defendants successfully moved to set aside a default judgment and sought substantial indemnity costs of $84,948.42.

The court declined to award costs to the defendants, finding that the setting aside of the default judgment was an indulgence necessitated by the defendants' own lack of diligence.

Although the plaintiffs engaged in improper conduct by failing to make full disclosure on the ex parte motion for default judgment and attempting to enforce it without notice, the defendants' prior conduct, including a fraudulent conveyance, militated against a costs award in their favour.

The court ordered the parties to bear their own costs.

The appellant insurer appealed a Licence Appeal Tribunal (LAT) decision requiring it to fund the respondent's catastrophic impairment (CAT) assessment under s. 25(1)5 of the Statutory Accident Benefits Schedule.

The insurer argued it was only required to pay for an assessment completed before the insured submitted their application.

The Divisional Court upheld the LAT's decision, finding that the preparation of an application does not cease once the formal document is submitted, and the insurer must fund any assessment necessary for determining whether the impairment is catastrophic.

The moving party brought a motion for leave to appeal an order dated January 28, 2021.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $2,500 to the responding party.

The moving parties brought a motion for leave to appeal an order dated December 23, 2020.

The Divisional Court dismissed the motion for leave to appeal.

The responding parties sought costs of $31,050, but the court awarded a reduced amount of $3,000 because much of their material was not responsive to the issues.

This endorsement addresses the costs arising from an application where the applicants sought a declaration of adverse possession over disputed lands.

The court previously granted the applicants ownership of a portion of the lands (Common Grounds) but not the entirety.

The respondent, deemed the successful party for costs, sought substantial indemnity costs for both the current and a prior related application.

The applicants sought partial indemnity costs.

The court awarded the respondent partial indemnity costs, finding that the respondent's offers to settle did not meet the requirements of Rule 49.10 and that the applicants' conduct did not warrant substantial indemnity costs.

The parties were ordered to equally share the costs of implementing the judgment.

The defendants (Filips) brought a motion to set aside a default judgment obtained by the plaintiffs (Ross and Campbell) for $617,209.59.

The Filips argued that the plaintiffs failed to make full and frank disclosure on damages in their ex parte motion for default judgment and that their previous counsel's significant personal and professional issues constituted a plausible excuse for their default.

The court found that the plaintiffs indeed failed to disclose material facts (a lower appraisal report) on damages, which alone was sufficient to set aside the judgment under Rule 39.01(6).

Additionally, applying the five-factor test from Mountain View Farms Ltd. v. McQueen, the court found the Filips' explanation for default plausible, an arguable defence on the merits (both liability and damages), and that setting aside the judgment served the interests of justice, despite the Filips' prior fraudulent conveyance attempt.

The default judgment was set aside, and a schedule for the action was ordered.

Following a temporary order that dismissed the applicant's request for interim exclusive possession of the matrimonial home and granted the respondent's motion for its sale, the parties made written submissions on costs.

The respondent sought $15,137.37 in partial indemnity costs, while the applicant sought $23,995.00, arguing the respondent's unreasonable conduct justified a costs award in her favour despite her lack of success.

The court found the respondent was the successful party and awarded him costs, but applied a downward adjustment to account for his response to an offer to settle and his post-separation conduct, fixing costs at $10,000.

The applicants sought ownership by adverse possession of a triangular parcel of land ("Disputed Lands") on their property's eastern border.

The respondent, the registered owner of the adjoining property, conceded a portion of these lands ("Common Grounds") but disputed the remainder.

The court found that the applicants established adverse possession of the "Common Grounds" due to their continuous, open, and exclusive use, and the mutual mistake regarding ownership.

However, the court found insufficient evidence to establish adverse possession of the balance of the "Disputed Lands." The judgment declared the applicants as lawful owners of the "Common Grounds" and ordered the necessary land registry amendments.

The plaintiff brought a motion for summary judgment against his insurer after it denied coverage for his vehicle, which was destroyed by fire.

The insurer alleged the plaintiff made wilfully false statements, committed arson, and used the vehicle purchase to launder money.

The court dismissed the motion, finding genuine issues requiring a trial regarding the plaintiff's insurable interest, whether the fire was accidental, and the insurer's allegations of false statements, noting significant evidentiary gaps and inconsistencies that could not be resolved on a summary basis.

Following a nine-week trial of a residential construction dispute, the successful builder and municipality sought costs against the unsuccessful property owners.

The builder sought elevated costs based on a Rule 49.10 offer to settle and the owners' alleged bad faith conduct.

The municipality sought elevated costs based on non-compliant offers to settle.

The court awarded the builder partial indemnity costs to the offer date and substantial indemnity costs thereafter, finding the owners' conduct did not warrant further elevation.

The municipality was awarded partial indemnity costs throughout.

Costs were fixed at $850,000 for the builder and $100,000 for the municipality.

The parties separated after 39 years of marriage but continued to reside in the jointly-owned matrimonial home.

The applicant sought interim exclusive possession of the home, a non-depletion order, and restoration of the financial status quo.

The respondent sought an order for the partition and sale of the matrimonial home.

The court dismissed the applicant's request for exclusive possession, finding insufficient evidence of violence or threat to well-being.

The court granted the respondent's motion for the sale of the matrimonial home, and the applicant's cross-motion for the sale of the jointly-owned cottage, finding no prejudice to the applicant's Family Law Act rights.

The request for a non-depletion order was largely dismissed, though the respondent was ordered to continue paying home expenses.

The builder sued the homeowners for unpaid amounts on a residential construction project.

The homeowners counterclaimed for construction deficiencies and incomplete work, and also sued the municipality for negligent building inspection.

The court found that the parties had an oral contract and that the builder did not breach it by leaving the project when the homeowners stopped paying.

The court dismissed the homeowners' claims for major structural deficiencies, finding the expert evidence of the builder more reliable.

The court also dismissed the negligence claim against the municipality, finding it met the standard of reasonable care.

The homeowners were ordered to pay the builder $558,095.52 for the unpaid balance of the contract and extras, less credits for incomplete work.

The moving parties, two of the plaintiffs in a civil assault action, sought an order to relieve them from the deemed undertaking rule to use a security video, obtained through discovery, for a criminal prosecution against the individual defendants (security guards) and a police officer.

The court found that the deemed undertaking rule applied to the video as it was disclosed under compulsion, despite being provided early for tactical reasons.

The court further determined that the public interest in pursuing a criminal investigation did not outweigh the prejudice to the disclosing party (20 Vic Management Inc.) and its co-defendants, particularly the tactical leverage a concurrent criminal investigation could create in the civil action.

The motion was dismissed.

The appellant towing company appealed a Small Claims Court decision limiting its storage lien against the respondent vehicle owner to 60 days.

The appellant had towed a damaged leased vehicle at the request of police and stored it for over a year without notifying the respondent, who held a registered security interest.

The Divisional Court dismissed the appeal, upholding the trial judge's finding that the appellant was required under s. 4(4) of the Repair and Storage Liens Act to provide written notice within 60 days, and that failure to do so limited the lien to the initial 60-day period.

Mr. Towing Inc. appealed a Small Claims Court judgment that dismissed its action for additional vehicle storage charges against Mercedes-Benz Financial Services Canada Corporation (MBFS).

The trial judge found that Mr. Towing's lien for storage was limited to the initial 60-day period due to its failure to provide written notice to MBFS as required by the Repair and Storage Liens Act (RSLA).

The Divisional Court upheld the trial judge's decision, confirming that Mr. Towing was required to provide notice and that its lien was limited to 60 days of unpaid storage charges, which had already been paid by the driver's insurer.

The appeal was dismissed, and MBFS was awarded costs.

The applicant mother brought an urgent motion seeking reinstatement of parenting time, make-up time, and police enforcement after the respondent father unilaterally denied her access to their three children for two months, citing COVID-19 concerns.

The court granted the applicant's requests, finding the father's actions unjustified and his cooperation lacking.

Two weeks of make-up parenting time were ordered, followed by the resumption of the original shared parenting schedule, with police enforcement included due to the father's stated unwillingness to comply with an order he disagreed with.

The issue of costs was reserved.

The applicant father brought an emergency motion for interim primary residency of four younger children, police enforcement, and an order prohibiting the mother from removing children from the Niagara Region.

The respondent mother brought a cross-motion for interim custody, which was not deemed urgent and was adjourned.

The court granted the applicant father's motion, finding the mother exercised poor judgment in leaving the children without adequate care.

The court ordered the four younger children to reside with the father, with police enforcement and a mobility restriction on the mother.

Partial indemnity costs were awarded to the applicant.

The Respondent father successfully brought a motion to prevent the Applicant mother from moving the children outside St. Catharines.

This endorsement addresses the costs of that motion.

The court awarded partial indemnity costs to the Respondent father, finding that while the Applicant mother's resistance to deferring the interim move was ill-advised, her conduct did not rise to the level of "egregious or reprehensible" to warrant substantial indemnity costs.

The court fixed costs at $1,500, considering proportionality and reasonableness, and noting that the Respondent father's offer to settle did not meet the strict requirements for full recovery costs under the Family Law Rules.