Robert J. Smith

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 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 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 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 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 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.

This endorsement addresses the issue of costs following the successful motions by the defendants, Jim Egalite, Jonathan Collings, and Stephane Langlois, to dismiss the plaintiffs' actions against them.

The court found the defendants' requested partial indemnity costs to be very reasonable, considering their complete success and the absence of a legal basis for the claims.

The plaintiffs were ordered to pay specific amounts to each successful defendant.

The court awarded substantial indemnity costs to the successful applicants following a motion for an interlocutory injunction.

The award was based on the respondents' unreasonable, reprehensible, and bad faith conduct, which involved a conspiracy to circumvent a unanimous shareholders' agreement through a sham default and share seizure.

This conduct, including high-handed actions such as changing locks and involving police, justified the higher scale of costs.

Costs were fixed at $30,000, to be shared jointly and severally by the respondent shareholders and secured creditors.

The plaintiffs (taxicab drivers and their union) sought an interlocutory injunction against Uber drivers to enforce a City by-law, which was denied.

This endorsement addresses the costs of that unsuccessful injunction motion.

The court awarded partial indemnity costs of $60,000 plus HST and disbursements to the successful Uber drivers, payable forthwith, considering the complexity and importance of the matter, the intense work required to respond to an injunction, and the applicants' sophistication.

The applicant mother brought a motion to relocate with her three-year-old daughter from Ottawa to the Greater Toronto Area (GTA).

The mother sought to move for new employment, to marry her boyfriend, and to access her family support network, as she had no family support in Ottawa.

The respondent father opposed the move, arguing it was not in the child's best interests and would reduce his contact.

The court applied the two-stage test from *Gordon v. Goertz*, finding a material change in circumstances.

Considering the mother's role as the child's primary caregiver, the father's history of frequently cancelled access visits due to work commitments, the mother's legitimate reasons for moving, and the minimal disruption to the child due to her young age (not yet in kindergarten), the court granted the mother's motion to relocate.

This costs endorsement followed a motion where the applicants sought orders regarding the exhumation of ashes, appointment as estate trustee, and reimbursement of funeral expenses, while also seeking inspection of a hockey card collection.

The respondent successfully opposed the exhumation and estate trustee appointment but was ordered to repay funeral expenses and allow inspection/division of hockey cards.

The court considered Rule 57 factors, including divided success and an offer to settle made by the respondent that exceeded the outcome.

The applicants were ordered to pay costs to the respondent, which were to be offset against the funeral expense reimbursement.

Maxrelco Inc. sought substantial indemnity costs for successfully opposing a summary judgment motion brought by Lumipro Inc. and for its own cross-motion to amend the plaintiff's name to correct a misnomer.

Lumipro Inc. argued the costs claimed were excessive, that its summary judgment motion was reasonably brought, and that no costs should be awarded for the misnomer amendment.

The court, applying Rule 57 of the Rules of Civil Procedure, found that substantial indemnity was not warranted because the summary judgment motion raised an arguable issue and the need for the misnomer amendment was due to the plaintiff's initial error.

The court fixed costs on a partial indemnity basis for the summary judgment motion, ordering Lumipro Inc. to pay Maxrelco Inc. $12,000 plus HST and disbursements.

The applicants sought a mandatory interlocutory injunction to reverse actions taken by the respondents and a secured creditor, including the seizure of shares, removal of directors, and termination of employment, alleging an invalid notice of default and oppression.

The court granted the injunction, finding the applicants established a prima facie case that the default notice was invalid, the shareholders' resolutions were null and void, and that the respondents conspired with the secured creditor to circumvent a unanimous shareholder agreement.

The court also found irreparable harm and that the balance of convenience favored maintaining the status quo, reinstating the applicants to their positions and setting aside the impugned acts.