Robert J. Smith

This decision addresses the costs arising from a successfully opposed motion for a stay of hearing.

The respondent sought costs on a substantial or partial indemnity basis.

The court considered factors under Rule 57 of the Rules of Civil Procedure, including success, complexity, and proportionality.

Given the non-complex nature of the issues and the hearing in writing, the court awarded the respondent $3,500.00 inclusive of HST and disbursements on a partial indemnity basis.

The Plaintiff sought costs for a successful class action certification motion.

The Defendants argued for no costs or reduced costs due to partial success in opposing certification on some issues, and Mr. Theberge sought substantial indemnity costs for the uncertified fraud claim against him.

The court, applying Rule 57 of the Rules of Civil Procedure and the Good v. Toronto Police Services Board precedent, found the Plaintiff substantially successful and awarded partial indemnity costs, rejecting the Defendants' arguments for reduction based on partial success or an award to Mr. Theberge.

The Trustee in Bankruptcy was successful in obtaining an order annulling the debtor's proposal in bankruptcy and defeating a cross-motion for permission to sue the Trustee for $10 million.

The Trustee sought costs of $82,958.01.

The court awarded the requested amount on a full indemnity basis, noting the factual complexity, unfounded allegations of professional negligence against the Trustee, and the fact that the Trustee would ordinarily recover its full costs.

The costs were ordered to be recoverable as a priority claim under section 136(1)(b) of the Bankruptcy and Insolvency Act against the funds held in the failed proposal.

The Hospital defendants sought costs on a substantial or partial indemnity basis.

The plaintiff argued for partial indemnity, asserting their offer to dismiss the action without costs should not trigger an award of substantial indemnity costs.

The court, considering Rule 57 factors, ordered the plaintiff to pay $9,000 in costs on a partial indemnity basis to the Hospital defendants.

The Plaintiff sought partial indemnity costs following a 15-day civil jury trial where she recovered $168,000 after a 30% finding of contributory negligence.

The Defendants argued for a reduction in costs, citing partial success on liability and future income claims, excessive preparation time, use of two senior counsel, and disbursements for out-of-town counsel and uncalled witnesses.

The court considered Rule 57 factors, including success, amount recovered, complexity, and offers to settle.

The Plaintiff's offer to settle was not exceeded, and the Defendants' offers were not close to the recovery.

The court reduced costs for using two senior counsel and disallowed disbursements for most uncalled witnesses, but allowed half of the out-of-town counsel's travel expenses.

The Defendants were ordered to pay $145,000 in fees plus HST and $85,000 in disbursements inclusive of HST.

The defendant, having been successful on a summary judgment motion, sought costs on a substantial or partial indemnity basis.

The plaintiff, the responding party, argued for a lower partial indemnity amount.

The court considered the factors outlined in Rule 57 of the Rules of Civil Procedure, including the success of the motion, the complexity and importance of the matter, and the principle of proportionality.

While acknowledging the complexity and importance of the issue to the defendant municipality, the court found the time spent by junior counsel to be excessive for what the losing party would reasonably expect to pay.

Costs were ultimately awarded on a partial indemnity basis, significantly reducing the defendant's requested amount.

The plaintiff brought a summary judgment motion seeking an order to compel the defendant municipality to issue adult entertainment establishment licenses, asserting a binding settlement agreement.

The municipality argued the settlement was not enforceable without a council resolution and that the plaintiff had lost its legal non-conforming use rights due to a 5.5-year cessation of operations.

The court dismissed the plaintiff's motion, finding that the settlement agreement was not binding on the Town without formal adoption by a by-law or resolution of council, and that any legal non-conforming use rights under the zoning by-law had been extinguished due to the prolonged discontinuance of operations.

The defendant, Her Majesty the Queen in Right of Canada (TPSGC), brought a motion for summary judgment to dismiss the plaintiff's claim for additional costs, arguing that the limitation period had expired.

The plaintiff, Amor Construction, contended that the novation of the contract did not trigger the limitation period and that TPSGC acted in bad faith by refusing to engage in the contractual dispute resolution process.

The court found that the limitation period began when TPSGC explicitly rejected the claim on November 3, 2015, not upon contract novation in November 2012, given prior assurances and the nature of information requested.

The court also concluded that TPSGC's conduct constituted bad faith in the performance of its contractual obligations.

The defendant's motion for summary judgment was dismissed.

The defendants brought a motion to prohibit the plaintiffs from calling Donald Raymond to give expert opinion evidence based on his 2005 appraisal report for the Quigley Hill property.

The defendants argued that Raymond failed to comply with Rule 53.03, did not qualify as a "participating or other expert" under Westerhof due to file destruction and lack of direct participation in the sale, and that his opinion was irrelevant.

The court found Raymond's appraisal relevant, that he qualified as a participant or non-party expert under Westerhof despite his file being inadvertently destroyed, and that any prejudice to the defendants was minimal and cured.

The court also noted both parties shared blame for not pursuing the "best efforts" undertaking more diligently.

The motion was dismissed.

The Crown sought an order compelling the Defence to file a Notice of Constitutional Question to challenge the constitutionality of the mandatory minimum sentence for sexual interference under s. 151 of the Criminal Code.

The Defence argued that a prior Superior Court decision (R. v. M.(L.), 2016 ONSC 7082) had already declared the provision unconstitutional and of no force or effect under s. 52(1) of the Constitution Act, making a new constitutional question unnecessary.

The court dismissed the Crown's application, holding that a declaration of invalidity by a Superior Court judge with inherent jurisdiction renders the law null and void *in rem*, binding on the Crown until overturned on appeal, and thus the constitutionality of the provision was no longer "in question."

The accused applied for a bail review based on a material change in circumstances, proposing release to a substance abuse treatment centre.

The Justice of the Peace had previously denied bail on secondary and tertiary grounds.

The court found a material change in circumstances, applying the Palmer criteria as adopted by St. Cloud, and determined that the new plan involving 24/7 monitoring and addiction treatment at Harvest House addressed the secondary and tertiary grounds, maintaining public confidence in the administration of justice.

Bail was granted with conditions.

The defendant, Renfrew Power Generation Inc. (RPG), brought a motion to decertify a class action alleging trespass due to shoreline erosion caused by a raised lake level.

The original certification was based on the understanding that a 107.5 Contour Line defined all class members' property boundaries.

New survey evidence, obtained after certification, revealed that many class members' boundaries were not defined by this contour line, but by metes and bounds or other methods, and that RPG acquired flooding rights through various means not uniformly affecting all properties.

The court found that the common issue, as certified, was no longer necessary or a substantial ingredient for each class member's claim, as individual property boundary determinations were required.

The motion to decertify was granted.

The applicants brought a motion opposing the confirmation of an Assessment Officer's decision regarding a solicitor's account.

The respondent law firm had charged block fees for mortgage enforcement and power of sale proceedings without recording the time spent by lawyers and clerks.

The Assessment Officer reduced the account by approximately 21% due to the lack of recorded time.

The applicants argued for a further reduction, claiming the Assessment Officer failed to properly weigh the factors from Cohen v. Kealey & Blaney and should have applied a volume discount.

The Superior Court of Justice found no error in principle in the Assessment Officer's decision and dismissed the motion.

The plaintiff sought to certify a class action against the developer and its president regarding condominium units in the Alta Vista Ridge development.

The claims included breach of contract, breach of the Condominium Act, negligent and fraudulent misrepresentation, and breach of fiduciary duty, primarily concerning the failure to provide a forced air heating system as specified in disclosure statements and, for a subclass, the failure to provide storage units included in purchase agreements.

The court certified the action as a class proceeding, defining the main class and a subclass, finding valid causes of action for most claims.

However, claims for breach of fiduciary duty and personal liability against the president, Joey Theberge, were struck for lack of pleaded material facts.

The court found the class proceeding to be the preferable procedure, promoting access to justice, judicial economy, and behaviour modification.

The plaintiff brought a motion to strike the jury and proceed judge-alone after defence counsel referred to the plaintiff's case as a 'cash grab' during closing submissions.

The plaintiff argued the comment was inflammatory and implied dishonesty.

The defendants opposed the motion and argued the plaintiff also made emotional appeals using analogies.

The court found the 'cash grab' comment was prejudicial but concluded a correcting instruction would be sufficient to cure the prejudice.

The motion to strike the jury was dismissed, and the court declined to give correcting instructions regarding the plaintiff's analogies.

The defendants brought a motion for leave under s. 12 of the Evidence Act to call more than three expert witnesses, specifically seeking to file a report from a second physiatrist.

The plaintiff opposed the motion on the basis that the second physiatrist would provide redundant evidence identical to that of the defendants' first physiatrist.

The court denied leave, finding that calling multiple experts with the same specialty incurs unnecessary expense and is not necessary to assist the trier of fact.

The defendants brought a threshold motion following a jury trial, arguing the plaintiff did not sustain a permanent and serious impairment of an important physical, mental or psychological function from a 2014 motor vehicle accident.

The plaintiff suffered chronic pain that prevented her from pursuing a career as a police officer, leading the jury to award $175,000 for loss of future income and $65,000 for pain and suffering.

The court applied the Meyer v. Bright test and found the plaintiff's chronic pain constituted a permanent, serious impairment of an important function, dismissing the defendants' motion.

The defendants brought a motion in the middle of a jury trial for leave to file a new expert report from a vocational rehabilitation expert.

The plaintiff opposed the motion, arguing it would be highly prejudicial as she had already closed her case and her experts had testified.

The court dismissed the motion, finding that allowing the late report would be unfair and prejudicial, an adjournment was impossible due to the jury, and the defendants had long known the basis of the plaintiff's future income loss claim.

The Attorney General submitted that there be no order as to costs regarding the motion by Ontario to strike the claim.

The plaintiff did not take serious issue with this disposition.

The court ordered no costs on the motion.

This decision addresses the costs of a motion brought by Her Majesty the Queen in the Right of Ontario and Detective Tracy Martel to strike the claim.

The Attorney General submitted that there should be no order as to costs, a position with which the plaintiff, Sheridan Margaret Diaz, did not take serious issue.

The court ultimately made no order for costs on the motion.