Richard A. Lococo

The Town of Pelham, as the successful applicant in a prior application, sought costs against Fonthill Gardens Inc. The respondent argued for no costs, claiming the Town's success was incomplete as the judgment did not fully clear title for a third-party sale.

The court awarded costs to the Town on a partial indemnity basis, but with a downward adjustment to $14,000, acknowledging the Town's less than complete success on the application's practical outcome.

This trial of an issue concerned the determination of the date of separation for the purpose of property division and spousal support in a divorce application.

The applicant contended a separation date of July 2014, following a significant marital conflict, while the respondent argued for an earlier date in June 2000, when the applicant moved into separate quarters within the matrimonial home.

The court applied the "indicia of separation" framework, considering objective factors such as living arrangements, sexual relations, shared activities, financial contributions, and tax filings.

Despite the parties living under the same roof for an extended period, the court found that the matrimonial consortium was not destroyed until July 2014, when the applicant unequivocally decided to end the marriage by retaining legal counsel.

The court fixed the date of separation as July 31, 2014.

The plaintiffs, Wilfred Davey and Bill Monture, sought partial indemnity costs after successfully amending their statement of claim in a putative class action.

The defendants challenged the quantum of costs.

The court, applying principles of costs assessment, fixed the plaintiffs' partial indemnity costs at $15,500, including disbursements.

The decision addressed and adjusted for HST, an estimated appearance fee, and a modest reduction for costs thrown away related to the defendants' original statement of defence, while deferring the issue of costs for the certification factum.

The applicant sought comprehensive access to his personal information from his employer, Magna International Inc. and Venest Industries Inc., based on his employment contract and company policies.

The respondents moved to dismiss the application, arguing it disclosed no reasonable cause of action and that the court lacked jurisdiction over matters related to PIPEDA.

The court granted the respondents' motion in part, striking the applicant's broad prayer for relief as not supported by company policies, but granted leave to amend the application to seek more specific disclosure.

The court affirmed it lacked jurisdiction over disputes arising under PIPEDA.

The plaintiff, Isobel Kozey, brought a motion for leave to amend her personal injury claim to add Broadleaf Landscaping & Snow Removal Inc. and Triovest Realty Advisors Inc. as defendants, following a trip-and-fall incident.

Broadleaf opposed the motion, arguing the claim against it was statute-barred due to the expiry of the limitation period.

The court granted the motion, finding that the plaintiff provided a reasonable explanation for the delayed discovery of Broadleaf's identity, establishing a triable issue regarding discoverability.

The court also dismissed Broadleaf's arguments of non-compensable prejudice and found it unnecessary to rule on the misnomer principle.

Honey Bee (Hong Kong) Limited sued VitaSound Audio Inc. and its principals for repayment of a US$500,000 loan and personal guarantees, plus default interest.

VitaSound counterclaimed, alleging Honey Bee breached an investment agreement by failing to supply audio devices and sought equitable set-off for an alleged delivery shortfall.

The court found no enforceable oral amendment to the investment agreement, which required written modifications.

It concluded that VitaSound, not Honey Bee, breached the investment agreement by declining to accept specified PAE-300 units.

Consequently, Honey Bee did not breach its obligations by ceasing supply after VitaSound's default on the loan.

The court dismissed VitaSound's counterclaim and found that equitable set-off was not applicable due to the lack of a clear connection between the claims and VitaSound's prior default.

Judgment was issued in favour of Honey Bee for the loan principal and default interest.

The plaintiffs, Wilfred Davey and Bill Monture, brought a motion for leave to amend their Statement of Claim in a putative class action alleging misuse of funds intended for development projects on Aboriginal land.

The proposed amendments included correcting party names, deleting breach of contract, adding oppression, and recasting/expanding other causes of action such as breach of fiduciary duty, breach of trust, and negligent/fraudulent misrepresentation.

The court granted leave to amend, finding that it was not plain and obvious that the proposed claims for breach of fiduciary duty, breach of trust, negligent/fraudulent misrepresentation, and oppression (under the OBCA) had no reasonable chance of success.

The court also clarified that the proposed class members, as beneficiaries of a trust, could qualify as beneficial owners of shares for the purpose of bringing an oppression claim, distinguishing it from a derivative action.

The defendant, Brian Radford, brought a summary judgment motion seeking to dismiss a solicitor's negligence action initiated by Anna Gionet.

Radford argued that Gionet's claim was statute-barred under the Limitations Act, 2002, asserting that the two-year limitation period had expired before the action was commenced in January 2014.

Gionet contended that she did not discover her claim until September 2013 and, alternatively, that the limitation period should have been tolled due to her mental and psychological incapacity following her husband's death.

The court dismissed the summary judgment motion, finding that there was a genuine issue requiring a trial to determine the actual discovery date of the claim and whether the limitation period was tolled.

The court determined questions of law in a special case arising from a motor vehicle accident.

The primary issue was whether Dmytro Lavrov's vehicle was insured by Manitoba Public Insurance (MPI) at the time of the accident, considering MPI's inter-jurisdictional undertaking and notice requirements for policy suspension.

The court found that MPI was precluded from denying coverage based on Dmytro Lavrov's failure to register his vehicle in Ontario and MPI's failure to provide proper notice of policy suspension under Manitoba law, or equivalent Ontario law.

The third-party claim for contribution and indemnity was not conclusively statute-barred, but the limitation defence otherwise remained outstanding for future determination.

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.

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 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 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.

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.

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.