Robert W. Dowhan

The defendants brought a motion for security for costs against the corporate plaintiffs in an action alleging bad faith and negligence by the insurers.

The court found that the defendants met their initial burden under Rule 56.01(1)(d) as the plaintiffs were corporations with insufficient assets in Ontario.

The burden shifted to the plaintiffs, who failed to prove impecuniosity due to incomplete financial disclosure and undisclosed real estate purchases.

The plaintiffs also failed to demonstrate a good chance of success on the merits of their bad faith claim.

The court ordered the plaintiffs to post security for costs in installments totaling $65,000.

Following the dismissal of the plaintiff's action for well contamination, the court determined costs.

The plaintiff conceded liability for the defendant's partial indemnity costs but disputed liability for the third parties' costs.

Applying the principles from Guarantee Co. of North America, the court found it fair to order the plaintiff to pay the successful third parties' costs, as the main issue litigated was between the plaintiff and the third party who applied the biosolids.

The court fixed total costs at $70,000, apportioned among the defendant and two third parties, noting that the costs claimed were disproportionate to the modest nature of the case and criticizing the parties' failure to make reasonable settlement offers.

Following a partial summary judgment in favour of the plaintiff finding an implied warranty of fitness in a contract, the plaintiff sought partial indemnity costs.

The defendant argued the claimed costs were excessive and should be reduced but did not provide its own bill of costs or detailed outline.

The court found the plaintiff had justified the claimed costs and that the amount was fair, reasonable, and within the expectations of the unsuccessful party.

The court therefore awarded the full amount of costs sought.

The plaintiff moved for summary judgment arising from flood damage allegedly caused by the failure of a flex hose connection installed by a plumbing contractor.

The motion raised two issues: whether the contractor’s contract contained an implied warranty that supplied materials would be of good quality and reasonably fit for their intended purpose, and whether that warranty had been breached.

The court held that contracts for work and materials generally include an implied warranty of fitness unless excluded by the circumstances, and found that such a warranty existed in the contract between the parties.

However, competing expert theories and unresolved factual disputes about the cause of the failure created genuine issues requiring a trial.

Partial summary judgment was granted only on the existence of the implied warranty, with the breach and negligence claims to proceed to trial.

The defendants and an added party sought leave to appeal to the Divisional Court from an order permitting the plaintiff to add additional defendants to an action despite the expiry of the limitation period.

The moving parties argued the order conflicted with other jurisprudence and raised issues of general importance concerning the effect of limitation periods on motions to add parties.

The court held that the decision under appeal properly followed binding Divisional Court authority holding that the relevant date for limitation purposes is the service of the motion to add a party, not the date the motion is argued.

Finding no conflicting authority, no reason to doubt the correctness of the order, and no issue of general importance, the court refused leave to appeal.

Four employees commenced wrongful dismissal actions after being terminated without reasonable notice or payment in lieu.

The actions were settled, but the parties were unable to agree on costs, leaving the court to determine responsibility and quantum.

Applying Rule 57.01 of the Rules of Civil Procedure and the principles articulated in leading appellate authority on costs, the court assessed factors including indemnity, proportionality, hourly rates, hours spent, complexity, conduct of the parties, and reasonable expectations regarding costs liability.

The court found the employees were the successful parties and entitled to partial indemnity costs.

The defendant’s conduct did not justify elevated costs, but also did not warrant depriving the employees of their presumptive entitlement.

The court awarded each employee $8,000 in partial indemnity costs inclusive of disbursements and HST.

A condominium corporation brought an application under ss. 117, 119 and 134 of the Condominium Act, 1998 alleging that occupants of a unit engaged in aggressive, threatening, and disruptive conduct toward other residents, contractors, and condominium staff.

Evidence included affidavits from unit holders and correspondence describing confrontational and verbally abusive behaviour by an occupant of the unit.

The respondents argued mediation was required under s. 132 of the Act, but the court held mediation was not mandatory where statutory breaches were alleged.

The court found the evidence, including admissions in the respondents’ own materials, demonstrated confrontational and abusive behaviour inconsistent with the condominium’s declaration and rules.

The court granted orders requiring the occupant to keep the peace, cease abusive conduct, avoid certain individuals, and requiring the unit owner to ensure compliance with condominium rules.