Richard A. Lococo

Following a judgment declaring the respondent in breach of an agreement of purchase and sale and ordering the return of a $40,000 deposit, the successful applicants sought substantial indemnity costs based on a pre-litigation demand letter.

The court found the letter did not qualify as a Rule 49 offer to settle because it was essentially a demand letter with a one-day deadline.

The court awarded costs on a partial indemnity basis, fixing the quantum at $14,000 after considering the principles of indemnity, the reasonable expectations of the unsuccessful party, and the complexity of the proceedings.

Following the dismissal of the applicant's application to direct the registration of a tax deed, the successful responding parties sought partial indemnity costs.

The applicant argued that the costs awarded should be limited to the amount of its own legal costs in bringing the application, relying on the principle that the unsuccessful party's costs can indicate the parties' expectations.

The court rejected this argument, noting that the application posed a significant financial risk to the responding parties, justifying their higher costs.

The court fixed costs at $22,000 for the municipality and $11,000 for the mortgagee.

The Children's Aid Society brought a child protection application seeking to make a two-year-old child with special needs a Crown ward without access.

The child had been in foster care since birth.

The mother had significant cognitive and physical limitations, and her five previous children had been made Crown wards.

The father had serious health issues, including stage 4 cancer.

The parents sought a supervision order placing the child in the mother's care.

The court found that the parents lacked the capacity and skills to care for the child and that a supervision order would not mitigate the risks.

The court ordered that the child be made a Crown ward without access to facilitate adoption.

The applicants agreed to purchase a property and paid a $40,000 deposit.

The transaction failed to close on the scheduled date due to existing encumbrances on title, including mortgages and a caution from a previous failed sale.

The respondent, who had assumed the seller's rights, attempted to extend the closing date but was unable to provide clear title.

The applicants refused further extensions and demanded the return of their deposit.

The court found that the respondent was not in a position to convey substantially what the applicants contracted for, as the property remained subject to encumbrances.

The court declared the respondent in breach of the purchase agreement and ordered the return of the deposit to the applicants.

The applicant, 2494044 Ontario Inc., sought an order directing Norfolk County to register a tax deed for a commercial property after being the highest tenderer in a tax sale.

The County cancelled the tax sale after the previous mortgagee paid the outstanding taxes.

The court found that the County Treasurer acted reasonably in exercising discretion under section 382(6)(a) of the Municipal Act to cancel the tax sale, as it was not in the municipality's financial interest to continue.

The application was dismissed, affirming the Treasurer's decision.

The appellant physician appealed a Discipline Committee decision finding he committed professional misconduct by sexually abusing a patient and revoking his license.

The appellant argued the defence of officially induced error, abuse of process by the College Registrar, and that the mandatory revocation provisions violated section 7 of the Charter.

The Divisional Court dismissed the appeal on all substantive grounds, finding the sexual relationship was concurrent with the doctor-patient relationship and that the court was bound by Court of Appeal precedent upholding the constitutionality of mandatory revocation.

The court only allowed the appeal in part to vacate an order requiring the appellant to post security for the patient's potential future therapy costs.

The self-represented plaintiff abandoned her motion for documentary production shortly before it was scheduled to be heard.

The defendants sought costs of the abandoned motion on a full indemnity basis, citing the plaintiff's conduct and previous abandoned motions.

The court awarded costs to the defendants on a partial indemnity basis, noting that while costs were justified under Rule 37.09(3), the plaintiff's self-represented status and health issues mitigated against an extraordinary costs sanction.

Costs were fixed at $3,500 for one defendant and $2,500 for the other.

Following a trial where the plaintiff was awarded damages for conspiracy and breach of fiduciary duty, the court determined costs.

The plaintiff sought over $124,000, claiming substantial indemnity costs based on an offer to settle.

The court found the judgment was not as favourable as the offer because the offer included the defendant surrendering his shares, which the court declined to order at trial.

The court also disallowed a $13,740 disbursement for a valuation report related to the unsuccessful share claim.

Costs were fixed at $80,000 payable by the primary defendant, with the co-defendant jointly and severally liable for $35,000.

Following the dismissal of the applicant's unjust enrichment claim, the respondent sought costs on a full indemnity basis.

Before costs were decided, the applicant made an assignment in bankruptcy.

The respondent argued that the costs should be characterized as spousal support so they would survive bankruptcy and be enforceable by the Family Responsibility Office.

The court rejected this argument, noting that spousal support was never an issue in the proceedings and retroactively characterizing the claims would be an inappropriate end run around the Bankruptcy and Insolvency Act.

The court declined to fix costs, without prejudice to the respondent renewing her request if she obtains a declaration lifting the bankruptcy stay.

This endorsement addresses the costs of a summary judgment motion brought by the defendant in a wrongful dismissal action, which was dismissed.

The plaintiff, as the successful party on the motion, sought substantial indemnity costs, arguing the defendant acted unreasonably in bringing the motion after the action was set down for trial without leave.

The court found no justification for substantial indemnity costs, noting the motion raised challenging issues consistent with the "culture shift" favouring proportionate dispute resolution.

The court fixed the plaintiff's costs at $5,400 on a partial indemnity basis, inclusive of disbursements and tax, payable within 30 days, dismissing the defendant's request to defer costs to trial.

This action arose from a shareholder dispute following the departure of a senior officer and shareholder, Richard Tisi, and an employee, Ian MacArthur, from The Prim8 Group Inc. Prim8 sued Tisi and MacArthur for breach of fiduciary duty, breach of good faith and loyalty, conversion, inducing breach of contract, conspiracy, and intentional interference with economic relations, alleging wrongful removal of assets and impediment of access to client websites.

Tisi counterclaimed for loan repayment, dividends, financial statements, compensation, and ownership of the Content Management System (CMS).

The court found Tisi liable for breach of fiduciary duty, conversion of Prim8 assets (including the CMS), and inducing MacArthur's breach of employment contract.

Both Tisi and MacArthur were found jointly and severally liable for breach of contract (duty of good faith and loyalty) and unlawful conduct conspiracy related to MacArthur's departure.

Prim8's claims for intentional interference with economic relations and punitive damages were dismissed.

On the counterclaim, Tisi was awarded repayment of $2,500 in loans, but his other claims, including ownership of the CMS and claims against Kirwin and Wright, were dismissed.

The applicant and respondent were in a volatile, on-again/off-again relationship for several years.

After they separated, the applicant claimed the respondent was unjustly enriched by his financial and other contributions, seeking a monetary award of $55,200 based on a 'joint family venture' and a 'value surviving' calculation.

The respondent denied the claim and sought repayment of funds advanced for stock market investments and credit card debt.

The court dismissed the applicant's unjust enrichment claim, finding no joint family venture and that his contributions were largely for rent and groceries.

The court ordered the applicant to pay the respondent $3,700 as a return of investment capital and $3,122 for credit card debt.

The plaintiffs, having previously succeeded in a damages claim for breach of a commercial lease, sought pre-judgment and post-judgment interest at the contractual lease rate of 18% per annum and costs on a substantial indemnity basis.

The defendants argued for the lower statutory interest rate, citing historical low market rates and potential windfall for the plaintiffs.

The court, relying on the Supreme Court of Canada's decision in *Bank of America Canada v. Mutual Trust Co.*, upheld the contractual interest rate, finding no special circumstances to override the parties' agreement.

The court also awarded costs to the plaintiffs as requested, fixed at $106,581, including disbursements and tax, based on their formal offer to settle.

The appellant appealed a decision of the Financial Services Tribunal revoking his mortgage broker licence.

The Tribunal found him unsuitable to remain licensed after he registered mortgages based on forged signatures without verifying the identity or consent of the client's wife.

The Divisional Court upheld the Tribunal's findings on misconduct but found the Tribunal failed to adequately consider lesser penalties than revocation, especially given the appellant's lack of prior disciplinary record.

The appeal was allowed in part, and the matter was remitted to the Tribunal to reconsider the penalty.

The tenant brought a motion to vary or set aside an order of a single judge that dismissed his appeal of a Landlord and Tenant Board eviction order and vacated the stay of eviction.

The tenant argued the motion judge erred by failing to consider evidence explaining his non-compliance with an interim consent order and by finding no merit to his appeal despite the Board refusing to hear his evidence on premises deficiencies.

The Divisional Court dismissed the motion, finding no error of law or palpable and overriding error of fact.

The court noted the tenant's counsel did not attempt to present the non-compliance evidence before the motion judge, and the Board had the authority to refuse evidence of deficiencies once the tenant breached the interim consent order.

The applicant physician sought judicial review of a decision by the Health Professions Appeal and Review Board.

The Board had directed the Inquiry, Complaints and Reports Committee (ICRC) to reconsider whether the applicant breached s. 7 of the Advertising Regulation regarding steering.

The Divisional Court found that the Board unreasonably focused on only one of the ICRC's reasons for deferring consideration of s. 7, ignoring the ICRC's valid conclusion that a caution for other advertising breaches was a sufficient disposition.

The application for judicial review was allowed and the Board's direction was set aside.

The defendant Constantine Glinos brought a motion for summary judgment on his cross-claim against Chicago Title Insurance Company.

Glinos, a lawyer, sought indemnity for legal costs incurred defending a professional negligence claim brought by purchasers (Small and Kondic) related to a real estate transaction.

The purchasers had also sued Chicago Title under a title insurance policy.

Glinos argued that Chicago Title's indemnity obligation to lawyers, established through an agreement with the Law Society of Upper Canada, applied because the purchasers' claims "arose under the title insurance policy" based on the pleadings rule from Stewart Title Guarantee Co. v. Zeppieri.

Chicago Title denied liability, arguing Glinos's alleged material misrepresentation in the application invalidated the policy and that the claim was for professional malpractice, not under the policy.

The court granted summary judgment to Glinos, finding that the purchasers' claims, as pleaded, arose under the title insurance policy, triggering Chicago Title's indemnity obligation for Glinos's defence costs.

The court also found no material misrepresentation that would invalidate the policy.

This endorsement addresses the costs arising from the successful motions by several defendants to dismiss the plaintiff's action for delay.

The successful defendants sought full or substantial indemnity costs, alleging the plaintiff's action was frivolous or vexatious, or that there was a Mary Carter agreement.

The court found no sufficient justification to depart from the usual order of partial indemnity costs, as there were no findings on the merits of the action, nor evidence of frivolous conduct or collusion.

The court awarded partial indemnity costs to the successful defendants, specifying amounts for the motion to dismiss and the remainder of the action.

The plaintiffs purchased a commercial property containing a hotel and restaurant and leased it back to the defendants for five years.

Upon the lease's expiry, the plaintiffs took possession and discovered significant disrepair, including moisture damage.

The plaintiffs sued for breach of the lease's repair and maintenance obligations.

The court found that the defendants failed to maintain the premises to the standard of a 'careful owner' and that the deterioration exceeded reasonable wear and tear.

The plaintiffs were awarded $1,734,107 in damages for remediation costs.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing her complaint of discrimination, harassment, and reprisal against her former employer, a law firm where she articled.

The applicant alleged she was terminated due to her disability after the firm discovered she had failed her first year of law school and requested her official transcript.

The Divisional Court found the HRTO's decision to be reasonable, upholding findings that the request for the transcript was not discriminatory, disability was not a factor in her dismissal, and there was no harassment or reprisal.

The application for judicial review was dismissed with costs.