Samuel I. Nash

The moving party brought a motion under s. 21(5) of the Courts of Justice Act to review case management directions that struck his 267-page appeal factum and required him to obtain trial transcripts for a Small Claims Court appeal.

The Divisional Court dismissed the motion, finding the case management judge's directions reasonable and necessary given the moving party's flagrant breach of the Rules respecting transcripts and factums.

The court extended the deadline for the moving party to order transcripts but warned that failure to comply could result in the dismissal of his appeal.

The plaintiffs commenced an action for the repayment of loans totaling $193,500.

After obtaining a partial judgment for $170,000, which the defendant eventually paid to avoid a sheriff's sale of his property, the plaintiffs moved to discontinue the balance of the action and sought costs on a substantial indemnity basis.

The self-represented defendant opposed the costs request, making baseless allegations of misconduct against the plaintiffs' counsel.

The court found the defendant's conduct throughout the proceedings to be evasive, inflammatory, and responsible for unnecessary delays and costs.

The court awarded the plaintiffs costs of the proceeding on a substantial indemnity basis in the amount of $32,000.

The appellant and respondent, former common law spouses, co-owned a cottage property.

The respondent sought an order for the sale of the property under the Partition Act.

The application judge ordered the sale, including a term requiring any purchaser to grant a right-of-way to neighbouring property owners, reflecting the original purchase agreement.

The appellant appealed the inclusion of this term and the award of full indemnity costs.

The Divisional Court dismissed the appeal regarding the sale term, finding no error in the application judge's conclusion that omitting the term would create uncertainty and reduce the sale price.

However, the court allowed the appeal on costs, varying the award from full to substantial indemnity because the application judge erroneously relied on an undertaking that did not apply to the proceeding.

The respondents sought and obtained an order for adverse possession of a 1.6-acre triangular parcel of land abutting a farm property owned by the appellant.

The application judge found that all elements of adverse possession were satisfied based on evidence that the Slak family had occupied and improved the land from 1979 onwards, establishing actual possession, intention to exclude the true owner, and effective exclusion.

The appellant appealed on multiple grounds, challenging the sufficiency of evidence, the adequacy of reasons, and the demarcation of the boundary.

The Court of Appeal upheld the decision, finding that the evidence supported all findings, the reasons were adequate for appellate review, and the boundary demarcation using a line of trees was appropriate to the facts.

This costs decision follows an application under the Partition Act for the sale of two jointly owned properties.

The applicant, Tara-Lee Daniel, sought and was granted an order for the sale of the properties, with the only contested issue at the hearing being the terms of sale for a cottage property.

The court awarded Daniel full indemnity costs and awarded the intervening neighbours partial costs, finding the respondents' opposition to be without merit and their conduct to have unnecessarily increased costs.

The court considered an application by Tara-Lee Daniel for the partition and sale of two properties co-owned with Michael Angelo Rizzo, following the end of their relationship.

The main issue was whether the sale order for the Trent Lakes property should require any purchaser to cooperate in granting a right-of-way to neighbouring properties, as set out in a prior agreement (Schedule "C").

The court found that including this term was fair and necessary to avoid uncertainty and facilitate the sale, and granted the order for sale with the requested provision.

The court rendered a costs and interest decision following a trial where the plaintiff's (BBD) claim for lien was discharged and its action dismissed, while the defendants (TRN) were awarded damages on their counterclaim.

The court addressed the defendants' costs claim, their offer to settle under Rule 49, and prejudgment interest.

The court found the mandatory aspects of Rule 49.10 inapplicable due to the Construction Act's broad discretion on costs.

It also criticized the defendants' conduct regarding costs outlines and the landlord's (264) conduct regarding document production.

Ultimately, the court awarded TRN $25,000 in partial indemnity costs from BBD, and no costs between BBD and 264, along with prejudgment interest on the damages awarded to TRN.

This is a costs endorsement following a motion where the defendants sought to compel the plaintiff to answer undertakings and reattend discovery.

The court found the defendants were largely successful on the underlying motion, obtaining an order for the plaintiff to answer undertakings and refusals in six of eight categories.

However, the court significantly reduced the defendants' requested costs from $19,249.65 to $5,000.00 due to the parties' failure, particularly the defendants', to engage in mandatory discovery planning under Rule 29.1.03 of the Rules of Civil Procedure.

The court emphasized that the motion was avoidable had proper discovery planning occurred, highlighting the importance of this rule for efficient litigation.

The plaintiff contractor brought an action to enforce a construction lien of $14,091.10 for the renovation of a roastery café.

The defendant owner counterclaimed for $386,047.87, alleging overcharging, delay, deficiencies, and flood damage.

The court found the contract was a cost-plus contract, not a fixed-price contract.

The contractor failed to meet its heavy evidentiary burden to prove its actual costs, resulting in an overpayment finding of $182,825.55 in favour of the owner.

The court dismissed the owner's claims for delay and deficiencies but found the contractor partially liable for flood damage in the amount of $1,300.

The contractor's lien was discharged, its action dismissed, and the owner was awarded $184,125.55 on its counterclaim.

The applicant, John Walker, sought an order under the Partition Act for the sale of a jointly owned property.

The respondents, Bethany Walker and Matthew Colling, opposed the sale, arguing it would cause them hardship amounting to oppression and requested a stay until an estate trustee was appointed and a Henson trust established.

The court found the respondents failed to demonstrate oppression, noting their inconsistent financial disclosures, the property's deteriorating condition, and the applicant's need for the sale proceeds for his care.

The court granted the order for sale, requiring the respondents to vacate and setting terms for the sale process.

This decision addresses two applications concerning the estates of Anna Wojtaszynski and Bruno Wojtaszynski.

Daniela Lis, as Anna's Estate Trustee, sought a passing of accounts for two periods.

Mary Korol, a beneficiary and Bruno's Estate Trustee, objected to several disbursements and Daniela's compensation.

The court ordered the payment of a debt from Anna's Estate to Bruno's Estate.

It disallowed certain legal fees and an early distribution to one beneficiary (Liliane Brown) from Anna's Estate, citing the "even-hand rule." The court found that GICs received by Mary Korol were a gift, not an advance on inheritance, and the claim was time-barred.

Daniela's trustee compensation was reduced, not due to misconduct, but because some administrative work was performed by legal and accounting professionals.

The court noted that both parties contributed to the protracted litigation due to animosity and distrust, ordering them to bear their own costs for Bruno's Estate application.

This costs endorsement followed the dismissal of an interlocutory motion brought by the respondent (Greg) seeking to transfer the applicant's (Suzanne's) shares in the family farm corporation.

The court found the respondent's conduct, including non-compliance with court orders, financial disclosure failures, and litigation tactics, amounted to bad faith and litigation bullying.

Consequently, the court awarded full indemnity costs of $24,113.64 to the applicant, emphasizing that such egregious conduct warranted sanction.

This decision addresses costs and other amounts payable following a long-standing property dispute.

The plaintiff, Dino Lepre, sought costs for a dismissed contempt motion brought by the defendant, Laurie Ann Hynds, and for a partition application.

The court fixed Mr. Lepre's costs for the contempt motion and awarded him costs for the partition application, noting his success on key issues and reasonable settlement efforts.

The court also determined the amounts payable by Ms. Hynds to Mr. Lepre for property taxes and severance costs, with a credit for land transferred to Mr. Lepre.

The moving party defendants brought a motion for leave to appeal an order and a subsequent costs order.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $3,500 to the responding party plaintiff.

This endorsement clarifies previous orders regarding costs and an injunction.

A dispute arose concerning the liability of the Estate of Maria De Fatima Sardinha for costs of a prior motion.

The court found that the Estate had consistently advised it was not opposing the motion, and therefore, it should not be liable for costs.

The court also clarified that the injunction against all defendants, including the Estate, remains in effect until trial or further order, and that the costs order (excluding the Estate and Michael Freeborn) is joint and several, with Angie Sardinha-Farias's liability capped at $40,000 and the total award at $100,000.

The moving party sought leave to appeal an order of Justice Chozik dated June 3, 2021.

The Divisional Court dismissed the motion for leave to appeal.

No costs were ordered because the responding parties failed to upload a costs outline to CaseLines as directed by the Court.

The applicant, a beneficiary of a trust, brought a motion to compel the respondent trustee to produce 65 documents over which the trustee claimed solicitor-client and/or litigation privilege.

The court found that a trustee generally cannot claim solicitor-client privilege against a beneficiary for documents related to trust administration, unless the parties are in an adversarial relationship on a separate and distinct matter.

Litigation privilege was not established as the dominant purpose for creating the documents was not litigation.

The court ordered the production of most documents, with redactions for content unrelated to trust administration where an adversarial relationship existed.

The defendant, Laurie Ann Hynds, brought a motion seeking a declaration that the plaintiff, Dino Lepre, was in contempt of a 1999 court order (the "Lofchik Order") and an order allowing her to unilaterally sell jointly owned property (the "Powassan bush lot").

Lepre opposed this relief and brought a counter-motion for partition or sale of the property under the Partition Act.

The court dismissed Hynds' motion, finding the Lofchik Order unenforceable due to a 19-year delay and mutual non-compliance by all parties.

The court also found it would be unjust to grant Hynds sole control over the sale given Lepre's efforts in maintaining the property.

Lepre's counter-motion for partition or sale was allowed to proceed as an application.

The plaintiff commenced a Small Claims Court action for breach of contract and later issued a Superior Court claim for defamation.

The plaintiff brought a motion to transfer the Small Claims action to the Superior Court to be consolidated, which the defendants consented to.

The parties could not agree on costs.

The defendants sought costs thrown away for work done in the Small Claims action.

The court found the work was not wasted and deferred the issue of costs to the trial judge.

The plaintiff sought costs following the defendant's unsuccessful motion for a stay of proceedings.

The plaintiff requested $29,073.51, including substantial indemnity costs based on an Offer to Settle.

The defendant argued the costs were excessive and proposed $10,000.00, also seeking a credit for prior interlocutory motions.

The court found the plaintiff was entitled to costs on a partial indemnity scale, rejecting the substantial indemnity claim because the Offer to Settle did not represent a substantive compromise.

The court also declined to award costs for prior procedural motions due to insufficient information regarding success.

Ultimately, the court awarded the plaintiff $12,847.38, inclusive of fees, HST, and disbursements, deeming this amount fair and reasonable in the circumstances.