Richard A. Lococo

Following dismissal of an action for delay against several defendants, the court addressed the issue of costs.

The moving defendants sought partial indemnity costs exceeding $200,000.

The plaintiff did not dispute entitlement to costs but argued for nominal costs based on impecuniosity.

The court accepted that financial hardship may be considered but emphasized that impecuniosity cannot shield a litigant from the costs consequences of unreasonable conduct or prolonged delay.

Balancing the plaintiff’s financial circumstances against the lengthy litigation history, the court reduced the claimed costs and fixed costs at $50,000 for each group of defendants.

Following a jury trial arising from a motor vehicle accident, the action was dismissed after statutory deductions eliminated the plaintiffs’ damages awards.

The defendant sought costs, arguing the trial result was more favourable than her pre‑trial settlement offer.

The plaintiffs opposed costs or sought reductions, relying on a minor damages award to one plaintiff, alleged failures to admit facts, hardship, and challenges to the defendant’s bill of costs.

The court held that the defendant, as the successful party, was entitled to partial indemnity costs throughout and rejected the plaintiffs’ arguments for offset or substantial reduction.

Certain disbursements were disallowed or reduced, and the total costs were fixed at $100,000 inclusive.

The plaintiff drywall contractor brought a construction lien action against the defendant owner/developer for the unpaid balance of a contract for a residential condominium project.

The defendant claimed set-off for allegedly incomplete and deficient work, and argued the lien was registered out of time.

The court interpreted the contract in favour of the plaintiff regarding the scope of work for corridor ceilings, balcony ceilings, and bathtub walls.

The court found only minor deficiencies, allowing a $3,000 set-off against the plaintiff's claim.

The court also held that the construction lien was registered within the 45-day statutory period and was valid.

Judgment was granted to the plaintiff for $140,946.44.

Following the dismissal of a defendant’s motion seeking an interim stay of an action and a stay of a production order pending a summary judgment motion, the successful plaintiff sought costs payable immediately and on a substantial indemnity basis.

The defendant argued the issue of costs should be reserved to the judge hearing the summary judgment motion, or alternatively fixed on a partial indemnity basis.

The court reaffirmed that the successful party on a motion generally has a reasonable expectation of costs and that substantial indemnity costs are reserved for exceptional circumstances involving egregious or unreasonable conduct.

Finding no such conduct and rejecting the request to defer the issue, the court ordered costs on a partial indemnity basis.

Costs were fixed at $10,000 inclusive of disbursements and tax, payable within 30 days.

Following dismissal of an appeal from an arbitration award in a personal injury action, the successful plaintiffs sought costs on a full indemnity basis, alleging egregious conduct by the municipal defendant, including rejection of a mediation settlement and pursuit of an appeal with little prospect of success.

The defendant argued that costs should be awarded on the ordinary partial indemnity scale and disputed the quantum claimed.

The court held that while the defendant’s conduct and delay could be considered when determining the amount of costs, it did not justify full or substantial indemnity costs.

The court emphasized that costs must reflect a fair and reasonable contribution by the unsuccessful party rather than the exact amount spent by the successful litigant.

Certain claimed amounts relating to earlier Court of Appeal motions were excluded.

The defendant brought a motion to stay the action or temporarily suspend a prior production order pending a summary judgment motion.

The defendant argued that compliance with the order would require disclosure of competitively sensitive information regarding its digital printing business to the plaintiff.

The court applied the two‑part test for a stay of proceedings, requiring proof that continuation of the proceeding would cause injustice to the defendant and that a stay would not cause injustice to the plaintiff.

The court held that the defendant failed to establish either branch of the test, noting the earlier production order had not been appealed and that the information could likely be obtained through cross‑examination on the summary judgment record.

The motion to stay the proceedings or suspend the production order was dismissed.

The defendant municipality appealed an arbitration award arising from a personal injury claim after the injured party was hurt while tobogganing on municipal reservoir property.

The arbitrator found the municipality fully liable under s. 3 of the Occupiers’ Liability Act, rejecting arguments that the plaintiffs willingly assumed the risk under s. 4, that the property constituted a utility right‑of‑way, or that the plaintiffs were contributorily negligent.

The municipality argued the arbitrator committed errors of law in applying the duty of care, in rejecting contributory negligence, and in awarding damages under the Family Law Act.

The court held that the challenged findings involved questions of fact or mixed fact and law, which were not reviewable on a limited statutory appeal restricted to questions of law.

Even if reviewable, the arbitrator’s conclusions were reasonable and consistent with applicable legal principles.

Following a motion for interim injunctive relief in a civil action alleging conspiracy and tortious conduct related to protest activities, the court addressed the issue of costs.

The moving party had obtained a limited interim injunction restraining certain conduct but was denied broader relief, including a proposed order against unidentified persons and further examination of the defendant.

The defendant argued that success on several issues and his status as a public interest protester justified either a costs award in his favour or no costs order.

The court held that the moving party was the successful party overall because it obtained injunctive relief restraining unacceptable conduct.

However, because the moving party sought overly broad relief that was largely denied, the claimed costs were reduced and fixed at a lower amount.

The parties separated in 2009 after a brief marriage and having one child.

They agreed to equal time-sharing of the child.

The court determined the dates of cohabitation and separation, and calculated the applicant's income for support purposes.

The court imputed an annual income of $40,000 to the respondent, finding she was intentionally unemployed.

The court ordered the applicant to pay spousal support of $5,000 per month for a fixed term based on a needs-based analysis, and child support of $1,615 per month based on a set-off of the parties' table amounts under the shared custody provisions of the Child Support Guidelines.

Retroactive support was ordered effective January 1, 2010.

Following the dismissal of a defendant’s motion to strike portions of a claim alleging bad faith and punitive damages, the court determined the appropriate costs award.

The successful party sought partial indemnity costs totalling $7,994.

The defendant argued that no costs should be awarded or that costs should be payable in the cause, citing the reasonableness of bringing the motion and the plaintiff’s unsuccessful alternative argument for nunc pro tunc amendments to the pleadings.

The court held that the successful party on a contested motion generally has a reasonable expectation of receiving costs and that the defendant had not established grounds to depart from that principle.

However, the court reduced the claimed amount to reflect time spent on the unsuccessful alternative argument and fixed costs at $4,000 inclusive of disbursements and tax.

The defendants, Aviva Canada Inc. and Pilot Insurance Company, brought summary judgment motions to dismiss two actions by the plaintiff arising from a motor vehicle accident.

The insurer denied coverage, alleging the plaintiff failed to notify them of a material change in risk (using a personal vehicle for a driving school) and made false statements about his claim.

The court dismissed the motions, finding that the statutory condition regarding change in risk did not apply to uninsured coverage.

Furthermore, the court held that genuine issues requiring a trial existed regarding whether the failure to notify was intentional and whether the plaintiff willfully made false statements, as these issues required credibility assessments best suited for a trial judge.

Following dismissal of a motion seeking to have the respondent held in contempt of a prior court order concerning possession and transport of a killer whale, the court was required to determine costs.

Both parties sought substantial or full indemnity costs exceeding $250,000, with the moving party also claiming significant U.S. legal fees incurred in related foreign litigation.

The court reaffirmed that the successful party on a contempt motion is presumptively entitled to costs but retains discretion to depart from that result where warranted.

The court declined to award costs against the successful responding party or deny it costs, finding the moving party had failed to meet the high burden of proving contempt beyond a reasonable doubt but had nonetheless brought the motion reasonably.

Costs were awarded to the respondent on a partial indemnity basis in the amount of $100,000 inclusive of disbursements and tax.

Following a seven‑day trial involving enforcement of a vendor‑take‑back mortgage, promissory note, and guarantees relating to the sale of a gasoline station, the successful lender sought costs on a full indemnity basis relying on contractual provisions and alternatively substantial indemnity costs after an offer to settle.

The defendants conceded that costs should be awarded but disputed the scale and quantum.

The court held that although the plaintiff was largely successful, the defendants achieved limited success on an issue that reduced the principal judgment by $80,000.

The court further held that the plaintiff’s offer to settle was an “escalating offer” that did not trigger Rule 49.10 cost consequences.

Partial indemnity costs were awarded and fixed globally in an amount reflecting the mixed success of the parties.

Following dismissal of a wrongful dismissal action after a four-and-a-half-day trial, the court determined the appropriate costs award.

The successful defendant sought partial indemnity costs exceeding $62,000, while the unsuccessful plaintiff argued that the amount should not exceed $40,000.

Applying the factors in Rule 57.01(1) of the Rules of Civil Procedure, including the principles of indemnity and the reasonable expectations of an unsuccessful party, the court reduced the amount claimed.

The court also permitted recovery of modest travel expenses for out-of-town counsel.

Costs were fixed at $50,000 inclusive of disbursements and tax.

Following a successful motion for security for costs, the defendant sought an award of costs for the motion on a partial indemnity basis.

The plaintiff did not dispute entitlement but argued the defendant achieved only partial success, claimed excessive costs, and requested that any award be in the cause rather than payable immediately.

The court held the moving party was substantially successful and rejected arguments that the award should be reduced for limited success.

While the amount claimed exceeded what would normally be expected for such a motion, the court accepted that additional work caused by late filings, expedited cross-examinations, and the complexity of the underlying action justified a higher award, subject to reduction for duplication of effort.

Costs were fixed and ordered payable within 30 days pursuant to the Rules of Civil Procedure.

The plaintiff sold a gasoline station to the defendants and took back a VTB mortgage and a promissory note.

The defendants stopped making payments, alleging the plaintiff misrepresented the station's financial performance and failed to complete a drive-through as undertaken.

The court found no misrepresentation, as the financial information provided was not materially inaccurate and the defendants waived their due diligence conditions.

However, the court found the plaintiff breached its undertaking to complete the drive-through and awarded the defendants an $80,000 offset against the amounts owing under the VTB mortgage.

The plaintiff was granted judgment for the balance owing and possession of the property.

An employee with 33 years of service brought a wrongful dismissal action after being laid off and subsequently refusing the employer’s offer to return to work.

The court accepted that the layoff constituted constructive dismissal and that the reasonable notice period would have been 24 months.

However, applying Evans v. Teamsters Local Union No. 31, the court held that a reasonable person would have accepted the employer’s prompt offer of reinstatement because the workplace would not have been hostile or humiliating.

The employee therefore failed to mitigate damages by refusing to return.

The claim for damages in lieu of notice and moral damages was dismissed.

The defendant insurer brought a motion for security for costs against a corporate plaintiff in bankruptcy alleging a conspiracy by insurers to destroy its accident-benefits clinic business.

The court considered the framework under Rule 56.01 of the Rules of Civil Procedure, including whether the plaintiff established impecuniosity, whether the claim had a good chance of success, and whether delay justified refusing the order.

The court found the plaintiff failed to demonstrate genuine efforts to obtain funding from creditors or shareholders and therefore did not establish impecuniosity.

The plaintiff also failed to demonstrate a good chance of success on the evidence presented, and the defendant had not delayed unreasonably in bringing the motion.

Security for costs was ordered in staged amounts.

Following a summary judgment motion in a franchise dispute, the court addressed costs after the moving party was largely unsuccessful except for striking a jury notice.

The plaintiffs sought substantial indemnity costs, arguing the motion had little chance of success, while the defendant argued costs should be reserved or limited because the motion was reasonably brought.

The court held that although the motion was not unreasonable, the unsuccessful party should ordinarily pay the successful party’s costs of the motion.

Applying the Rules of Civil Procedure and considering duplication of effort and partial success on the jury issue, the court fixed partial indemnity costs at $50,000 inclusive of disbursements and tax.

The defendant franchisor brought a motion for summary judgment dismissing the franchisees’ action on the basis of a mutual release signed following the failure of the franchised restaurant, and alternatively sought partial summary judgment dismissing a statutory rescission claim under the Arthur Wishart Act (Franchise Disclosure), 2000.

The plaintiffs argued the release was unenforceable due to unconscionability and statutory invalidity, and that disclosure deficiencies entitled them to rescind within the two‑year period applicable where no compliant disclosure document is provided.

The court held that genuine issues requiring a trial existed regarding the enforceability of the mutual release, including potential unconscionability, lack of legal advice, and imbalance of bargaining power.

The court also found that determining whether the disclosure requirements were satisfied under the statute required a full evidentiary record and could not be resolved on summary judgment.

However, the court struck the plaintiffs’ jury notice based on the contractual waiver and the equitable nature of certain relief sought.