Roberto Ghignone

The court considered costs following the resolution of four building permit appeals brought by Rothmar Holdings Inc. against the City of Cornwall.

After the City issued permits for all properties before the hearing, the parties argued only costs.

Rothmar sought substantial indemnity costs, alleging bad faith by the City, while the City sought partial indemnity costs or no costs.

The court declined to award costs to either party, finding it inappropriate to investigate the merits, apply costs factors, or determine relative success in the absence of findings on the substantive issues.

The court also declined to award costs of a preliminary evidentiary motion.

The plaintiffs initiated an action against the defendants for breach of contract, negligence, breach of fiduciary duty, and negligent or fraudulent misrepresentation concerning investment rental properties and their management.

The defendants brought a motion for summary judgment, arguing the claim was time-barred under the Limitations Act, 2002.

The court found the action amenable to summary judgment and determined that the plaintiffs had sufficient knowledge of their loss and its cause by December 12, 2017, at the latest, when they terminated their property management agreement.

As the Statement of Claim was issued on March 16, 2020, beyond the two-year limitation period, the court granted summary judgment to the defendants and dismissed the action as time-barred.

The applicant brought a preliminary evidentiary motion to strike or exclude the expert opinion evidence of the respondents' expert, arguing the expert lacked independence and impartiality.

The applicant alleged the expert's firm had a reputational stake and a direct client relationship with the respondent municipality, and employed a former municipal building inspector whose work was reviewed in the expert's report.

The court applied the White Burgess framework and found the threshold requirement for independence and impartiality was met, as the relationship was analogous to a mere employment relationship and did not establish a realistic concern that the expert was unable or unwilling to fulfill his duty to the court.

The motion was dismissed.

EBC Inc. brought an application seeking declarations and payment from the City of Ottawa for unpaid holdback funds, a contract credit, and interest on allegedly late payments and arbitration awards related to a design-build contract for the Ottawa Art Gallery expansion and Arts Court redevelopment.

The court dismissed the claims for holdback funds, finding the application statute-barred by the Limitations Act, 2002, and that EBC failed to use the proper dispute resolution process.

The claim for the contract credit was also dismissed, as the court found the Amendment Agreement was a valid Change Order and the City's deduction was lawful.

The court granted a partial claim for interest, finding interest was payable on a Phase 1 arbitration award as per the contract, but dismissed interest claims related to settlements or invoices paid promptly after completion.

The plaintiff brought a medical malpractice action against two physicians and a hospital, alleging she suffered permanent injuries following a vaginal myomectomy.

The defendants moved for summary judgment, relying on expert evidence that the physicians met the standard of care and that the surgery did not cause the alleged injuries.

The self-represented plaintiff failed to produce any expert evidence to support her claims despite multiple extensions.

The court granted the defendants' motions for summary judgment and dismissed the action, finding that the absence of expert evidence in a medical malpractice claim is fatal.

The plaintiffs sought leave to bring a motion for an interlocutory injunction against their neighbours regarding a disputed boat ramp and dock, after having already set the action down for trial.

The court denied leave, finding no substantial or unexpected change in circumstances since the action was set down, as the complained-of conduct was already detailed in the statement of claim.

In obiter, the court noted that even if leave had been granted, the injunction would have been dismissed under the RJR MacDonald test because the plaintiffs failed to demonstrate irreparable harm and the balance of convenience favoured maintaining the status quo.

The respondents were successful in defending an application for a declaration of a public highway.

The Township and the individual respondents, who were separately represented, sought costs.

The Township claimed partial indemnity costs, while the individual respondents sought full indemnity costs.

The court found that separate representation was justified but declined to award substantial indemnity costs as there was no Rule 49 offer or discreditable conduct.

Costs were fixed at $19,000 for the Township and $17,000 for the individual respondents, payable by the applicant.

The applicant sought a declaration that an 1890 municipal by-law established a public road across the respondents' properties to provide access to his landlocked parcel.

The court reviewed historical township minutes and found that while a road was contemplated and partially constructed, its exact location could not be determined with certainty.

The original survey was lost, and there was no modern record or visual evidence of the road's existence.

The application was dismissed due to the lack of certainty regarding the road's location.

The defendant hospital requested the summary dismissal of the plaintiff's action under Rule 2.1.01 of the Rules of Civil Procedure, arguing it was frivolous, vexatious, or an abuse of process.

The plaintiff, who had a previous action stayed, alleged breaches of privacy regarding his medical chart.

The court found that while the pleading might have deficiencies or be partially duplicative of the stayed action, it was not so clearly unmeritorious as to warrant summary dismissal.

The defendant's request was dismissed without costs.

This is a costs decision following a motion where the applicant's request for injunctive relief was denied, though an order for preservation of evidence was made.

The respondent sought substantial indemnity costs.

The court awarded substantial indemnity costs to the respondent, finding the applicant's attempt to bring the initial motion ex parte inappropriate and unjustified, especially given prior negotiations between counsel.

The relief sought by the applicant was deemed overly broad and an unwarranted intrusion into the respondent's operations.

The applicant's procedure was characterized as ill-conceived and unjustified, leading to significant legal expenses for both parties.

A litigation guardian, acting as attorney for personal care and property, brought a motion for a mandatory injunction seeking unrestricted access to a patient and non-interference with video cameras installed in the patient's hospital room.

The court dismissed the motion for injunctive relief, finding that the three-part test for interlocutory injunctions was not met, particularly regarding irreparable harm and the balance of convenience.

However, the court granted an order for the maintenance, control, preservation, and disclosure of video records under Rule 45 of the Rules of Civil Procedure, recognizing the need to preserve evidence in the ongoing dispute concerning the patient's care.

The defendants brought a motion for summary judgment to dismiss the plaintiff's medical negligence action on the basis that it was statute-barred.

The plaintiff had a kidney removed in 2000 due to a misdiagnosis of cancer, which she was informed of shortly after the surgery.

She commenced the action in 2015.

The court found that the plaintiff knew the material facts necessary to make a claim by the end of 2001, as she was aware of the misdiagnosis, the unnecessary surgery, and had been encouraged by family to sue.

The court held that the claim was discovered well outside the two-year limitation period and dismissed the action.

This decision addresses the issue of costs following the dismissal of the applicants' appeal under the Building Code Act.

The respondent, Morrisburg Dock Expansion Inc., sought substantial indemnity costs, while the applicants argued for a significantly lower amount, claiming public interest litigant status and citing issues with their former counsel's conduct.

The court found the applicants did not meet the high threshold for public interest litigants and that their conduct, through counsel, had unnecessarily lengthened the proceedings.

Considering the principles of indemnity, settlement encouragement, and sanctioning inappropriate behavior, the court awarded the respondent $121,692.23 in costs, payable within three months, acknowledging the amount was significant but justified by the respondent's success and the applicants' conduct.

The defendants, Kingston General Hospital and Paladin Security Group Ltd., moved for summary judgment to dismiss an action alleging excessive force by security staff.

The plaintiff, an adult male with schizophrenia, sustained an elbow fracture while being restrained by security staff at the hospital.

The court reviewed contemporaneous security notes and discovery evidence, finding that the security staff acted in accordance with their training and that the force used was reasonable given the plaintiff's aggressive and non-compliant behaviour.

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

The moving party sought to vary a consent order arising from a mediated wrongful dismissal settlement, arguing the order incorrectly named a corporate entity that did not exist at the time of settlement.

The court considered whether the settlement and resulting consent order contained a mistake regarding the proper corporate defendant.

Applying the objective test for consensus ad idem and Rule 59.06, the court concluded a reasonable bystander would find the settlement was intended to be with a different corporate entity carrying on business under a similar name.

The court amended the style of cause to substitute the correct corporate defendant and vacated enforcement measures taken against the incorrectly named company.

The defendants brought summary judgment motions seeking dismissal of a personal injury claim arising from a teeth whitening procedure performed by a dental hygienist.

The court held that allegations concerning negligent performance of the procedure required expert evidence regarding the applicable standard of care.

Because the plaintiff failed to provide admissible expert evidence meeting the requirements of Rule 53.03, the claims for negligent performance and breach of contract were dismissed.

However, the court found a genuine issue requiring a trial on whether the plaintiff gave informed consent, as the parties presented conflicting evidence regarding disclosure of the risk of burns.

The court also held that expert evidence was not required to determine whether the material risk of burns had been disclosed, and that the issue of potential vicarious liability of the dentists for any breach of disclosure duty remained for trial.

Following a successful motion dismissing all claims against one defendant in a civil action alleging negligence, fraud, and conspiracy, the court addressed the issue of costs.

The unsuccessful plaintiff argued that no costs should be awarded due to financial hardship.

Applying s. 131 of the Courts of Justice Act and relevant cost considerations, the court found that the defendant had been completely successful and was entitled to costs.

The court also considered the seriousness of the allegations and the lack of merit in the plaintiff’s claim.

A lump sum costs award of $10,000 was ordered payable forthwith.