Sally Gomery

The plaintiff's motion for leave to appeal was previously dismissed with costs.

The defendant sought partial indemnity costs of $4,424.70 plus disbursements and HST.

The plaintiff argued each party should bear their own costs or, alternatively, costs should be fixed between $3,500 and $4,500.

Applying the principles from Boucher, the court fixed the defendant's costs at $4,915.23 inclusive of disbursements and HST, payable by the plaintiff in any event of the cause.

The plaintiff sought leave to appeal an order that denied her leave to amend her statement of claim and disclosure of Technical Standards and Safety Authority (TSSA) investigation files.

The proposed amendments included additional negligence particulars, references to post-incident charges and convictions, and allegations of patterns of behaviour.

The motion judge had found these amendments irrelevant to proving prior negligence and emphasized that punitive damages must be expressly pleaded.

The court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's order and no conflicting decisions on matters of principle.

The Third Party, Miguel Villeneuve, brought a motion for summary judgment to strike third-party claims by the Laferrière defendants and Calypso Theme Waterpark.

The claims alleged Villeneuve caused the plaintiff's injuries, which directly contradicted findings from a prior criminal conviction of the Laferrière defendants for assaulting the plaintiff.

The court found that these third-party claims constituted a collateral attack on the criminal court's findings and were an abuse of process.

The motion was granted, and the third-party claims were struck.

The defendant was successful on its appeal from a Master's decision regarding the plaintiff's motion for leave to amend her pleading and for documentary discovery.

The defendant sought costs of $25,000 on a partial indemnity basis, payable forthwith.

The court fixed the defendant's costs for both the motion and the appeal at $20,000 on a partial indemnity basis.

Balancing the importance of the appeal's success with the plaintiff's litigation strategy, the court deviated from the general rule that costs are payable within 30 days, ordering instead that the costs be paid within 60 days of the decision at trial.

The defendant appealed a Master's order granting the plaintiff leave to amend her statement of claim and ordering the disclosure of a TSSA investigation file.

The plaintiff's action arose from an injury at the defendant's waterpark.

The proposed amendments included allegations regarding post-incident occurrences and a regulatory proceeding.

The Superior Court allowed the appeal, finding that the Master made a palpable and overriding error.

The post-incident similar fact allegations were neither material nor relevant to the plaintiff's claim in negligence, and there was no basis to order production of the TSSA file relating solely to post-incident events.

This decision addresses costs following two motions where the Bank of Montreal and Surgeson Carson Associates, Inc. (the Receiver) successfully obtained summary judgment dismissing claims by Jean-Luc Cardinal, Linda Cardinal, The Estate of Raymond Cardinal, and Ferme Lanidrac (the Borrowers), and successfully defended the Borrowers' motion to set aside a consent judgment.

The Bank and Receiver sought substantial indemnity costs, citing the complexity, importance, and unfounded allegations of fraud and abuse of process made by the Borrowers.

The Borrowers argued for partial indemnity costs, claiming shared success on a legal test and that the defendants' evidence was excessive.

The court awarded substantial indemnity costs to the Bank ($110,000) and the Receiver ($50,000), finding the Borrowers' conduct in re-litigating settled claims and making serious, unsubstantiated allegations of dishonesty warranted higher costs, despite acknowledging minor success on a legal argument.

The borrowers brought a motion to set aside a consent order terminating a receivership, alleging that the Bank and the court-appointed Receiver made misrepresentations during settlement negotiations.

The Bank and the Receiver brought a motion for summary judgment to dismiss the borrowers' subsequent action for damages.

The court found no evidence of misrepresentation, noting that the borrowers had independent legal advice, received full disclosure, and signed multiple full and final releases.

The court dismissed the motion to set aside the consent order, denied retroactive leave to sue the Receiver, and granted summary judgment dismissing the borrowers' action on the basis of res judicata.

Two physicians sought judicial review and constitutional relief challenging registration requirements under the Medicine Act and requesting mandamus orders compelling the regulatory body to issue certificates of registration.

They also sought Charter-based relief preventing the regulator from investigating professional conduct.

The court held that the applications were premature because the applicants had alternative statutory remedies through the regulator’s processes, including review by the Health Professions Review Board and appeal to the Divisional Court.

The applicants had also failed to provide sworn evidence or comply with procedural requirements for judicial review.

The court further found the requested mandamus and constitutional relief lacked factual and legal foundation and dismissed the applications.

The plaintiff, a member of the university's men's varsity hockey team, brought a proposed class action against the university and its president after the entire team was suspended following sexual assault allegations against two players.

The defendants brought a motion to strike the claims of negligence, breach of fiduciary duty, and misfeasance in public office under Rule 21.01(1)(b).

The court dismissed the motion to strike the negligence claim, finding a recognized duty of care between the university and its students.

However, the court struck the claims for breach of fiduciary duty and misfeasance in public office, as the university had multiple competing interests to balance and there were no facts pleaded to support bad faith or dishonesty.

The defendant physician sought leave to appeal to the Divisional Court from a decision dismissing his motion for summary judgment on the basis that the claim against him was statute‑barred under the Limitations Act, 2002.

The underlying malpractice action concerned a stroke allegedly resulting from negligent emergency room treatment and subsequent consultation with a neurologist.

The motions judge had concluded that the summary judgment motion was premature due to uncertainty surrounding expert evidence relevant to discoverability of the claim.

On the leave motion, the court held that the earlier judge properly understood and applied the principles governing summary judgment and discoverability, including those articulated in Combined Air Mechanical Services Inc. v. Flesch and Hryniak v. Mauldin.

The court found no conflicting legal test and no serious reason to doubt the correctness of the decision, and therefore declined to grant leave to appeal.

The defendants brought a motion under Rules 21.01(3)(d) and 25.11 of the Rules of Civil Procedure to dismiss an action brought by a physician and university faculty member challenging internal academic decisions concerning sexual harassment findings and denial of academic promotion.

The plaintiff sought declarations overturning internal university decisions and substantial damages based on various tort and Charter claims.

The court held that the action constituted an abuse of process because it attempted to re‑litigate matters that were properly the subject of university procedures and judicial review of academic decisions.

The court further found that the statement of claim disclosed no reasonable cause of action, including because university officers were acting within their institutional roles, complainants in quasi‑judicial proceedings enjoy absolute privilege, and universities are generally not subject to Charter claims absent implementation of government policy.

The entire statement of claim was struck without leave to amend.

Following a successful motion dismissing a statement of claim as an abuse of process, the defendants sought substantial indemnity costs exceeding $177,000.

The plaintiffs argued that costs should be limited to $20,000 on a partial indemnity basis and contended that certain work related to alternate arguments on the motion should not be compensated.

The court held that substantial indemnity costs were appropriate due to unfounded allegations of serious misconduct against the defendants and the finding that the proceeding constituted an abuse of process.

While accepting the accuracy of the defendants’ bill of costs and the complexity and importance of the litigation, the court found the amount claimed excessive.

Costs were therefore fixed at a fair and reasonable level significantly below the amount requested.

The defendant neurologist brought a motion for summary judgment seeking dismissal of a medical negligence claim as statute‑barred under the Limitations Act, 2002.

The plaintiffs alleged negligence arising from emergency room treatment preceding a stroke, asserting that the neurologist consulted during the visit may have contributed to the failure to diagnose and treat.

The defendant argued the claim was commenced more than two years after the plaintiffs knew or ought to have known the material facts supporting the claim.

The court held that discoverability was complex in the circumstances due to conflicting expert opinions and uncertainty regarding the neurologist’s role, and concluded that a genuine issue requiring a trial existed.

The motion for summary judgment was therefore premature.

Following approval of a class action settlement fund of $2.25 million for approximately 4,000 class members alleging illness from a resort norovirus outbreak, class counsel sought approval of an additional fee of $395,500 beyond an initial $600,000 fee.

The defendant opposed the motion, arguing the low take‑up rate—only 352 claims totalling approximately $333,000—made the total counsel fee disproportionate and unfair.

The court held that the value of a settlement for purposes of counsel fees may properly be measured by the total funds made available to the class rather than the amount actually claimed.

Considering the litigation risks undertaken, the benefits made available to class members, and policy reasons supporting incentives for class counsel, the court concluded the fee request was fair and reasonable.

The additional counsel fee was approved.