Richard S. Nishimura

The moving party sought leave to appeal a costs order made by Hackland J. on February 21, 2023, in the context of an application to pass accounts.

The Divisional Court dismissed the motion for leave to appeal and awarded all-inclusive costs of $2,825 to the respondent.

The plaintiff purchased a property from the defendants and subsequently discovered the wood foundation was rotting.

The defendants brought a motion for summary judgment to dismiss the action.

The court found that the foundation issues were patent defects that were discoverable by the plaintiff's home inspector, but the plaintiff chose to waive the inspection condition.

Furthermore, there was no evidence that the defendants knew of the defect or actively concealed it.

The motion for summary judgment was granted and the action was dismissed.

The defendant brought a motion to transfer the action from Ottawa to Toronto, alleging an apprehension of institutional bias among the judiciary in Ottawa.

The defendant relied on an affidavit referencing a separate action involving a related company, which had resulted in adverse outcomes.

The court dismissed the motion, finding no evidence of bias, no connection to Toronto, and noting that the contract was executed and performed in Ottawa.

The motion was deemed ill-conceived and costs were awarded to the plaintiff.

The moving parties sought costs on a substantial indemnity basis following a successful motion to compel the responding party to attend an examination in aid of execution.

The court disallowed costs claimed for the preparation of costs submissions and for the time of a lawyer who attended cross-examination as a witness.

Applying the factors under Rule 57.01 of the Rules of Civil Procedure, the court awarded the moving parties reasonable costs fixed at $4,500.

The plaintiff, Farley Manufacturing Inc., brought a motion for an order under Rule 32 of the Rules of Civil Procedure to inspect the defendant, Oz Optics Ltd.'s, dome facility by two experts and senior representatives.

Oz Optics objected to one expert's qualification and the presence of plaintiff's representatives.

Farley Manufacturing also sought an order for mediation within 90 days, which Oz Optics opposed, arguing it should occur after expert reports.

The court granted the inspection order, finding it "useful" and "probative" and allowed the plaintiff's chosen experts and representatives to attend.

The court also ordered Oz Optics to pay the travel and accommodation costs for one expert due to Oz Optics' unreasonable conduct in obstructing the inspection.

Mediation was ordered to be held within 90 days.

Following a trial where the applicant successfully defended a will challenge, the parties made written submissions on costs.

The applicant sought substantial indemnity costs against the unsuccessful objectors.

The objectors argued their costs should be paid from the estate because they had reasonable grounds to challenge the will.

The court applied the modern approach to estate litigation costs, finding that the strength of the objectors' case regarding the testator's capacity engaged public policy considerations.

The court ordered the objectors' costs of $50,227.17 and the applicant's full costs to be paid out of the estate.

The applicant, Jon Jessie William Driscoll, sought a Certificate of Appointment of Estate Trustee with a Will, naming him as the sole beneficiary of his mother, Shirley Driscoll's, estate.

Three of Shirley's daughters (the objectors/respondents) challenged the will, alleging lack of testamentary capacity and undue influence.

The court conducted a summary trial, reviewing medical evidence and family testimony.

The court found that Shirley Driscoll possessed testamentary capacity when she executed her will and was not subjected to undue influence.

The decision emphasized that a testator has the right to treat beneficiaries unjustly, and the will reflected Shirley's long-held mindset of primogeniture.

The objections were dismissed, and Jon Driscoll was confirmed as Estate Trustee.

The plaintiff brought a motion to transfer the action to another jurisdiction and for leave to amend the statement of claim after discovery evidence revealed additional entities allegedly involved in selling the plaintiff’s musical compositions.

The defendants argued the amendments were statute‑barred, would cause prejudice, lacked particulars, and were invalid because the underlying oral agreement contravened the Copyright Act.

The court held that amendments should generally be permitted under Rule 26.01 unless non‑compensable prejudice would result.

The court found the alleged cause of action arose after termination of the agreement in 2012, rejected arguments that the oral agreement was invalid under s. 13(4) of the Copyright Act, and concluded the proposed amendments raised triable issues.

Leave to amend was granted with limited exceptions, and the action was ordered transferred to Newmarket or Toronto.

Following an application concerning enforcement of an agreement of purchase and sale for real property, the court determined entitlement and quantum of costs.

The purchaser applicant had succeeded in obtaining an order confirming that the vendor corporation remained obligated to convey title and extending the closing date.

Competing internal factions within the respondent corporation advanced opposing positions, but neither faction was treated as a party for purposes of the costs determination.

Applying Rule 57.01 of the Rules of Civil Procedure and s. 131 of the Courts of Justice Act, the court held that partial indemnity costs were appropriate and rejected a claim for higher or substantial indemnity costs.

Costs were fixed in favour of the applicant purchaser and payable by the respondent corporation.

The applicant purchaser brought an emergency application for specific performance of an agreement of purchase and sale for a commercial property.

The respondent vendor failed to close the transaction on the scheduled date, citing the purchaser's lack of mortgage funds, while the vendor itself had failed to answer requisitions or prepare closing documents due to an internal corporate dispute.

The court found that the vendor's failure to perform its obligations and its implied renunciation of the contract relieved the purchaser of the requirement to tender.

The court ordered specific performance, enforcing an extension of the closing date agreed to by the vendor's ostensible representatives.