Richard A. Wellenreiter

Following a trial under the Simplified Procedure regarding a construction contract dispute, the defendants sought costs on a substantial indemnity basis.

The court found that while the defendants were the more successful parties, their recovery was mitigated by their lack of success on certain counterclaims and their unwavering position that the contract was fixed-price.

The court also found that neither party's offer to settle met the strict requirements of Rule 49.10.

Applying the principle of proportionality, the court awarded the defendants costs fixed at $47,382.86.

The plaintiff contractor sued the defendant homeowners for the unpaid balance of a custom home construction contract.

The defendants counterclaimed for construction deficiencies and intentional infliction of mental distress.

The court found the contract was a 'time and material' contract, not a fixed price contract, but reduced the plaintiff's claim due to a failure to provide proper accounting, awarding $44,299.51 on a quantum meruit basis.

The court also found the plaintiff breached the contract regarding the concrete basement floor and stairs, awarding the defendants $88,333 to remedy the defects.

The claims for delay and mental distress were dismissed.

The court addressed costs for the respondent's motion, where both parties claimed success.

The respondent's offer to settle, which proposed a comprehensive "Voice of the Child Report" including parental interviews and review of court materials, was found to be more favourable than the order obtained.

The applicant's failure to accept this offer made arguing the motion unnecessary.

Consequently, the applicant was ordered to pay the respondent full indemnity costs from the date of the offer to settle, fixed at $2,074.50.

The plaintiff was almost entirely successful on a motion to compel answers to nearly 90 undertakings and refusals in an estate litigation matter.

The plaintiff sought costs on a substantial indemnity basis, relying on two offers to settle.

The defendant argued the motion was unnecessary and that costs should be left to the trial judge.

The court found the motion was straightforward but important, and that the plaintiff's claimed costs were reasonable.

The court fixed the plaintiff's costs at $6,600 for fees plus $343.51 for disbursements, plus HST.

Following the dismissal of the defendant's motion to strike portions of the statement of claim, the court received written submissions on costs.

The plaintiff sought costs on a substantial indemnity basis, relying on the defendant's delay in bringing the motion and offers to settle.

The defendant argued costs should be left to the trial judge.

The court rejected the defendant's arguments, considered the factors under Rule 57 and the delay under Rule 21.02, and fixed costs payable to the plaintiff at $9,000 inclusive.

The defendant in a will challenge action brought a motion to strike portions of the plaintiff's statement of claim.

The defendant argued the plaintiff lacked standing to seek an accounting and disgorgement of funds allegedly misappropriated by the defendant prior to their mother's death, as the plaintiff was not a beneficiary under the impugned will.

The court dismissed the motion, finding it was brought late in the proceedings, would not terminate the action, and that the plaintiff had sufficient appearance of a financial interest under a prior will to give her standing to advance the claims.

Following a successful family law motion regarding parenting access and issues involving an investigation by the Office of the Children's Lawyer, the court determined the appropriate costs award.

The applicant sought substantial indemnity costs, alleging the respondent acted unreasonably by refusing access to the child and frustrating the OCL investigation.

The court found the respondent’s rigid refusal to permit access and her conduct during the clinical investigation constituted unreasonable behaviour warranting substantial indemnity costs.

However, the court reduced the claimed fees to reflect reasonable hourly rates, adjusted travel time, and applied a further reduction due to the respondent’s financial circumstances as a single parent with several children.

Costs were fixed at a reduced amount and ordered payable within 90 days.

A costs decision following a motion to change custody and access arrangements.

The respondent sought to change the primary residence of the child and restrict the third party's unsupervised access.

The applicant opposed the motion and brought a cross-motion.

The parties settled on the basis of recommendations from the Children's Lawyer's investigation.

The court found that success was divided: the respondent was unsuccessful in changing custody and primary residence but successful in reinstating and significantly expanding his access to the child and refuting serious allegations of abuse.

The court awarded costs to the respondent on a divided success basis.

In an uncontested family law trial, the applicant mother sought sole custody, supervised access, child and spousal support, and an equalization payment.

The respondent father's pleadings had been struck for failure to make financial disclosure.

The court granted the mother sole custody and ordered that the father's access be supervised due to his untreated sex addiction and recent involuntary psychiatric hospitalization.

Based on expert evidence, the father's income was imputed at $248,500.

The court ordered ongoing child and spousal support, fixed support arrears at $162,105, and ordered an equalization payment of $57,753.85.

Costs were awarded to the applicant on a substantial indemnity basis.

Following a successful summary judgment motion, the moving parties sought full indemnity costs fixed at $33,000 based on alleged misconduct by the opposing party and a prior settlement offer.

The court held that the opposing party’s conduct did not warrant sanction and that the purported settlement offer did not qualify as a Rule 49 offer and was not a genuine attempt to resolve the litigation.

The court found the claimed costs disproportionate to the amount at stake and the work required.

Applying a reasonable proportionality assessment, the court fixed partial indemnity costs at $9,000.

A law firm sued the parents of a former client seeking payment of approximately $84,000 in legal fees incurred in the client’s family law litigation.

The parents brought a motion for summary judgment arguing they were not contractually bound to pay the fees.

The plaintiff alleged the parents had provided an indemnity based on their conduct and statements during meetings that were tape recorded.

The court held that the evidence, including the retainer agreement, written acknowledgements, and transcripts of the meetings, did not establish that the parents had undertaken an indemnity or guarantee to the law firm.

The court concluded there was no genuine issue requiring a trial and dismissed the action.