Robert J. Smith

This was a costs decision following a six-week civil trial in which the plaintiff's claims for damages, resulting trust, constructive trust, breach of trust, and breach of fiduciary duty were dismissed.

The court held that the plaintiff had advanced serious, fraud-like allegations of theft, conspiracy, elder abuse, and dishonesty without proving them, warranting costs on a substantial indemnity basis.

The court also relied on the defendants' unaccepted Rule 49 offer of $1.5 million, which the plaintiff failed to beat after recovering nothing at trial.

Although impecuniosity was argued, the court found no exceptional sympathetic circumstances justifying a major reduction and ordered costs of $750,000 plus HST and disbursements of $43,959.26 inclusive of HST.

The plaintiff sought costs on a partial indemnity scale after successfully certifying her action as a class proceeding and defeating the defendant's motion for summary judgment.

The defendant argued that costs should be reduced or not awarded because the plaintiff failed to obtain a reverse summary judgment and the class definition was narrowed.

The court found the plaintiff was substantially successful and awarded costs of $300,000 plus HST and disbursements, slightly reduced from the claimed amount to reflect the lack of success on the reverse summary judgment request.

The plaintiff sought leave to make further submissions on whether he was required to pay the standard 13% HST on a costs award or only the net HST the defendant would pay after receiving credits under the Excise Tax Act.

The court held that it was functus officio, as the original costs decision was final and the issue of HST credits was a new issue, not a clerical error or accidental omission.

The fact that the order had not yet been entered did not permit the court to vary its decision.

The plaintiff father sued his defendant son and several of the son's companies, seeking the return of over $12 million in funds and properties transferred to the son between 2010 and 2015.

The father alleged that the properties were to be held in trust for him and his other children, and claimed breach of fiduciary duty, undue influence, and unjust enrichment.

The court dismissed the action, finding that the son successfully rebutted the presumption of resulting trust.

The court accepted the son's evidence, corroborated by independent witnesses and bank personnel, that the father had a clear donative intent and gifted the funds and properties to the son.

The defendant, Sun Life, brought a motion for summary judgment in a class proceeding regarding the calculation of annual indexing increases on long-term disability benefits.

The plaintiff argued for a reverse summary judgment.

The court found that the interpretation of the policy and the correct methodology to calculate the annual indexing of benefits where 'other income' is deducted raised a genuine issue requiring a trial.

The court dismissed both the defendant's motion for summary judgment and the plaintiff's request for a reverse summary judgment.

The plaintiff brought a motion to certify a class proceeding against Sun Life, alleging it incorrectly calculated long-term disability benefits by wrongfully deducting the inflation component from CPP and PSSA benefits.

Sun Life argued the plaintiff failed to meet the certification criteria.

The court found the pleadings disclosed a reasonable cause of action for breach of contract, though not for punitive damages.

The court amended the class definition to include a temporal limit based on the ultimate limitation period and certified the action, finding a class proceeding to be the preferable procedure.

This motion concerned the entitlement to funds held in court, initially part of a beneficiary's share of an estate, which were subject to a condition (provision of a letter of credit) that was never met.

The beneficiary, now an undischarged bankrupt, purported to assign his interest in these funds to a charitable foundation for his children before his bankruptcy.

The Estate Trustee and Trustee in Bankruptcy sought an order directing the funds to be paid out according to their settlement.

The court addressed the standing of the bankrupt and the foundation, the application of the Law of Assent regarding the transfer of estate assets, and whether the purported assignment was a reviewable transaction under the Bankruptcy and Insolvency Act.

The court found that neither the bankrupt nor the foundation had standing, that the Estate Trustee had never assented to the transfer of the funds to the bankrupt, and that the purported assignment was a reviewable transaction made for nominal consideration to non-arm's length parties with inferred intent to defraud creditors.

The motions brought by the Estate Trustee and Trustee in Bankruptcy were granted, directing the funds to be paid to the bankruptcy estate and the estate creditors.

The plaintiffs, a pharmacist and his holding company, brought a motion for leave to commence a derivative action on behalf of a pharmacy corporation against the defendants, another pharmacist and his wife's holding company.

The plaintiffs also sought a Certificate of Pending Litigation (CPL) against two commercial condominium units, a restraining order, and leave to amend their Statement of Claim.

The court dismissed the motion for a derivative action, finding it was essentially a shareholder dispute and not in the best interests of the corporation.

The requests for a CPL and a restraining order were also dismissed as the plaintiffs failed to establish a triable issue regarding an interest in the land or a strong prima facie case.

Leave to amend the Statement of Claim was partially granted.

The defendants brought a motion to strike the plaintiffs' claims for oppression.

The plaintiffs, former minority shareholders, alleged that the defendants misappropriated corporate assets and sold shares below true value.

The court struck the claims against the Murison Family Trust with leave to amend, as a trust is not a legal entity.

The claims against 2123388 Ontario Inc. and Exia Biomedical Inc. were struck without leave to amend, as 212 lacked the capacity to oppress and the claims against Exia belonged to the corporation and required a derivative action.

The claim against Obotics Inc. was struck with leave to amend, as no material facts of wrongful conduct were pleaded.

The defendant brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss a defamation action brought by the plaintiffs, a home renovation contractor and his wife.

The action arose from a Reddit post by the defendant calling the plaintiffs 'fraudsters' and 'scammers' after a contract dispute.

The court found the expression related to a matter of public interest.

Although the defamation claim had substantial merit, the plaintiffs failed to show they suffered any financial harm, as their YouTube business was thriving and their renovation business had closed before the post.

The court concluded the public interest in protecting the defendant's expression outweighed the public interest in allowing the proceeding to continue, and dismissed the action.

The applicant developer sought declarations that its insurers, Aviva and Northbridge, owed a duty to defend and indemnify it in a class action.

The class action alleged the developer negligently misrepresented that condominium units would include a heating system and storage locker, which were not provided.

The insurers denied coverage on the basis that the developer's failure to provide the items was an intentional business decision, not an 'occurrence' or accident.

The court agreed with the insurers, finding that the negligent misrepresentation claims were entirely derivative of the intentional breach of contract.

The applications for coverage were dismissed.

The defendants, an athlete and a national sports organization, brought a motion to dismiss the plaintiff's action for damages arising from alleged harassment and assault.

The defendants argued the court lacked jurisdiction because the plaintiff had already pursued a complaint under the organization's internal disciplinary code, making the civil action an abuse of process or collateral attack.

The court dismissed the motion, finding that the internal disciplinary process did not have the authority to award compensatory damages for tortious conduct, and therefore did not oust the jurisdiction of the civil courts.

Following the dismissal of the plaintiff's $1.8 million claim regarding pension benefits, the successful defendant sought costs of over $900,000.

The plaintiff argued the costs were excessive and that the defendant's joint offer to settle did not trigger substantial indemnity costs because the co-defendant had settled via a Pierringer Agreement.

The court agreed that substantial indemnity costs were not warranted but awarded partial indemnity costs of $425,000 plus HST and disbursements, finding the time spent reasonable given the complexity and the plaintiff's evasive conduct during discoveries.

Following a successful motion for class action certification regarding PFAS groundwater contamination, the plaintiffs sought costs against the unsuccessful defendant, the National Research Council of Canada (NRC).

A successful co-defendant, Carleton University, sought costs against the plaintiffs.

Applying the factors under Rule 57, the court ordered NRC to pay the plaintiffs $207,500 in costs on a partial indemnity scale.

The plaintiffs were ordered to pay Carleton University $20,000 plus HST in costs.

The applicant union sought judicial review of a Pay Equity Hearings Tribunal decision which found that the respondent employers were not statutorily obligated to negotiate the maintenance of pay equity plans following a health services integration.

The union argued that the Pay Equity Act required mandatory bargaining for pay equity maintenance and that the Tribunal's interpretation violated the freedom of association under section 2(d) of the Charter.

The Divisional Court dismissed the application, holding that the Tribunal reasonably interpreted the Act as placing the responsibility for maintaining pay equity solely on the employer, with the union's role limited to monitoring and filing complaints.

The Court also found that the Tribunal's decision did not disproportionately limit Charter protections.

The applicants sought judicial review of an Ontario Labour Relations Board decision that denied their successor rights application following the merger of two construction companies.

The Board had awarded bargaining rights for formwork to the Carpenters' Union to avoid jurisdictional conflict, as the merged entity intermingled employees.

The Divisional Court applied the reasonableness standard of review and dismissed the application, finding the Board's decision to avoid jurisdictional conflict under section 69(6)(c) of the Labour Relations Act was justified, transparent, and intelligible.

The plaintiffs brought a motion to certify a class proceeding against the National Research Council of Canada (NRC) and Carleton University, alleging that PFAS contaminants from NRC's National Fire Laboratory migrated into the groundwater of adjacent properties.

The court certified the class action against NRC for claims in strict liability, nuisance, negligence, and statutory breaches, finding that the pleadings disclosed causes of action and that a class proceeding was the preferable procedure.

The court dismissed the claim for punitive damages against NRC and refused to certify the common issues against Carleton University due to a lack of evidence connecting its activities to the contamination.

The plaintiff, a former Vice President of Human Resources, sued his former employer for breach of a verbal contract and negligent misrepresentation regarding his pension benefits.

He alleged the employer's former president verbally agreed to pay all costs to transfer his previous pensionable service to the employer's Supplementary Pension Plan, or alternatively, to set up a fund to cover the difference.

He also claimed he relied on an erroneous pension estimate provided by a subordinate when deciding to retire.

The Superior Court of Justice dismissed the action, finding the plaintiff failed to prove the alleged verbal agreement and that it was unreasonable for him, given his expertise and knowledge of the pension plan's restrictions, to rely on the subordinate's inaccurate estimate.

The applicants sought judicial review of a Human Rights Tribunal of Ontario decision that summarily dismissed their complaint regarding a failure to provide sign language interpretation during a private prosecution.

The Divisional Court upheld the dismissal against the private prosecutor and the individual who laid the information, finding they did not provide a 'service' under the Human Rights Code.

The Court also dismissed the application against the Justices of the Peace due to judicial immunity.

However, the Court found the Tribunal's dismissal of the complaint against the Ministry of the Attorney General was unreasonable, as the Tribunal ignored explicit allegations that requests for interpretation were made to the court clerk.

The matter against the Ministry was remitted to the Tribunal.

The applicant estate trustee sought costs following a successful application to pass her accounts.

The respondent beneficiaries had raised over 300 objections, abandoning most at the hearing, and maintained unfounded allegations of theft and fraud against the trustee.

The court found the respondents' conduct reprehensible and ordered them to personally pay the trustee's costs on a substantial indemnity basis, fixed at $325,000.