Roger H. Chown

Following a successful motion by the defendants to set aside a default judgment and writ of execution, the court determined the issue of costs.

Although the defendants were granted an indulgence (which normally results in costs payable to the opposing party), the court awarded costs to the defendants.

The court found that the plaintiff's counsel engaged in conduct that unnecessarily complicated and lengthened the proceedings, including insisting on an overly high legal standard, conducting unnecessary cross-examinations of the defendant and his counsel, and sending misleading correspondence to the enforcement office.

The plaintiff was ordered to pay the defendants' partial indemnity costs fixed at $23,798.36.

The defendants brought a motion to set aside a default judgment obtained by the plaintiff in a construction dispute.

The plaintiff had noted the defendants in default despite receiving an email from the individual defendant requesting notice before being noted in default.

Applying the five-part test from Intact Insurance, the court found that the defendants moved promptly, had a plausible excuse for the default, and that the interests of justice favoured a determination on the merits.

The court set aside the default judgment and ordered the return of monies collected pursuant to a writ of seizure.

The plaintiff's insurance policy for a rental property was cancelled in 2007 due to non-payment.

A fire occurred in 2015, and the insurer denied the claim.

The plaintiff sued for negligence, alleging failure to notify him of the policy cancellation or non-renewal.

The defendant insurer brought a motion for summary judgment.

The court found the plaintiff's credibility questionable and the insurer's evidence reliable, concluding that the plaintiff was aware of the policy termination.

The motion for summary judgment was granted, and the plaintiff's action was dismissed.

This endorsement addresses the costs arising from a two-week trial where the Plaintiff and Third Party were entirely successful.

The court awarded substantial indemnity costs for the trial, citing the Defendants' unreasonable litigation conduct and the Garber Defendants' rejection of a generous Rule 49 offer to settle.

Additionally, costs thrown away due to an adjournment caused by Ms. Garber's ill health were awarded against the Garber Defendants, though reduced from the amount claimed.

The decision also clarifies that the Costs Subcommittee's recommended rates for Rule 57 are outdated and discusses the limited relevance of a litigant's ability to pay costs without sufficient evidence.

During a trial for nuisance, the defendants sought to introduce evidence of the plaintiff's alleged retaliatory conduct (e.g., loud music, smoke) to mitigate punitive damages.

The court ruled this evidence inadmissible, finding no causal connection between the plaintiff's post-nuisance conduct and the defendants' initial actionable conduct (building a dock) or their failure to rectify it.

The court emphasized that for such evidence to be relevant to punitive damages, it must have provoked the defendant's actionable conduct, and any defense based on the plaintiff's conduct influencing the failure to rectify must be pleaded.

The defendant Canadian Hydro Developers (CHD) brought a motion to enforce Minutes of Settlement and sought a declaration on the property valuation date.

The plaintiff, Paul Thompson, opposed, arguing misapprehension of facts and that his former counsel acted without instructions regarding the valuation date.

The court enforced the main settlement but exercised its discretion to set aside counsel's agreement on the June 2014 valuation date, finding it unreasonable and entered into without the plaintiff's instructions, leading to clear injustice.

The valuation date was determined to be the date appraisals are conducted.

The appellants appealed the dismissal of their negligence action on summary judgment motions brought by the respondents.

The plaintiff was assaulted after exiting a chartered bus at a plaza in Barrie, sustaining a serious head injury.

The respondents operated a bar with a transportation and security system designed to prevent violence.

The motions judge found the case suitable for summary judgment and held that the respondents met the applicable standard of care.

The Court of Appeal found that the motions judge failed to properly articulate and apply the standard of care, effectively treating the plaintiff's contributory negligence as a bar to the claim.

The court held that the respondents owed a duty not to place the plaintiff in a position where foreseeable injury could occur, and that a trial was necessary to properly assess the standard of care and causation.

During a civil jury trial for damages arising from a motor vehicle accident, the court ruled on whether questions regarding the plaintiff's future loss of income, future medical treatment, and future mileage expenses should be put to the jury.

The court found that the plaintiff failed to provide sufficient evidentiary foundation, such as vocational, occupational, or economic expert evidence, to support these claims.

Concluding that leaving these questions to the jury would invite speculation, the court ruled that the questions would not be put to the jury.

Following a successful summary judgment motion dismissing the action against four defendants, the defendants sought costs on a partial indemnity basis.

The plaintiffs had commenced the action seeking damages for a severe brain injury sustained in an assault.

The court declined to award costs to the successful defendants, finding this to be a rare case where the plaintiffs' impecuniosity and exceptionally sympathetic circumstances justified a departure from the normal costs rules.

The plaintiff brought a motion to determine the order of examinations for discovery, arguing he had the right to examine the defendant first because he initiated the discovery process.

The defendant argued it had the prima facie right to examine first because it was the first to serve an affidavit of documents and notice of examination under Rule 31.04.

The court found that the defendant had the prima facie right to determine the order of examinations and that the circumstances did not warrant the exercise of the court's discretion to direct a different order.

The motion was dismissed.

The defendants First Student Canada, David Ribble, 1853780 Ontario Inc. o/a Kee to Bala, and Ryan Zaroski sought summary judgment to dismiss the plaintiffs' claim for damages arising from an assault on Ryan Turcotte.

The assault occurred in a parking lot after Turcotte disembarked from a chartered bus service provided by the defendants.

The plaintiffs alleged negligence under the Occupiers’ Liability Act, Liquor Licence Act, and general negligence.

The court found no evidence that the defendants failed in their duty of care regarding premises safety, bus security, or intoxication monitoring.

The court also rejected allegations that the defendants should have diverted the bus, prevented Turcotte or the assailants from leaving, or provided more explicit warnings, concluding that Turcotte was aware of the potential danger.

The motion for summary judgment was granted, dismissing the action against the moving defendants.

On a pre-trial discovery motion arising from a civil action for injuries sustained in a shooting at the defendant's residence, the moving defendant sought answers to refusals, undertakings, a further discovery, and production of videogame consoles and passwords.

The court applied the stricter relevance standard under Rule 31.06 and ordered production of the plaintiff's game consoles, related passwords, and answers to questions about videogame use, finding that the information could be relevant to damages and cross-examination of psychological experts.

The court refused to compel answers about the plaintiff's alcohol and marijuana use at his own home and about an unrelated 2006 stabbing, holding those matters were not relevant to the pleaded issues.

The court also required the plaintiff to answer a question about the gun at the defendant's residence and required the plaintiff's father to answer limited questions about his own use of the consoles, but not about the plaintiff's upbringing or prior issues with gangs, alcohol, or drugs.

The applicant sought a charge against the respondents' property to secure repayment of a $200,000 family loan advanced toward the purchase of a residence containing a granny flat for her use.

The court interpreted the parties' written agreement and promissory note, which expressly required the borrowers to grant reasonable security on request.

Despite the existence of an earlier gift letter to the mortgage lender and the respondents' matrimonial dispute, the court held the applicant was entitled to security over the very property acquired with her contribution.

An order charging the property in favour of the applicant for $200,000 without interest, on demand terms mirroring the 2012 agreement, was granted.

On motions under Rule 21, the court considered insurance coverage issues arising from alleged failures of valves installed in condominium HVAC systems that led to flooding claims.

The court held that the duty to defend could be determined on the pleadings and policy wording, notwithstanding unresolved factual disputes relating to waiver, estoppel, misrepresentation, fortuity, and exclusions.

Reading the underlying claims broadly and drawing reasonable inferences, the court found a mere possibility that the defective valves deteriorated progressively from installation through failure, thereby constituting property damage during both insurers' policy periods.

Continental's motion denying any duty to defend was dismissed, and declarations were granted that the claims potentially fell within both policies, with Continental bound to defend.

In a family law motion concerning spousal support, the moving party sought removal of opposing counsel on the basis of conflict arising from legal advice previously given by a former partner at the same firm to a company partly owned by the parties regarding the responding party's termination of employment.

Applying the MacDonald Estate framework, the court found that confidential information attributable to a solicitor-client relationship had been received and was relevant to the support dispute because the termination was the trigger for the support claim.

The court further held that a reasonably informed member of the public would not be satisfied that the information would not be misused, despite a later-created screening measure.

The motion to remove counsel was allowed.

The appellant appealed the dismissal of its negligence claim against the respondent electrician, alleging the respondent damaged an armoured cable during installation, causing a fire.

The trial judge accepted the respondent's denial of severely abusing or yanking the cable, which rebutted the presumption of negligence suggested by the jointly retained expert.

The Court of Appeal found no error in the trial judge's assessment of the evidence or the adequacy of his reasons, and dismissed the appeal.