SCJ 2012

The court determined costs following a successful motion arising from a dispute over the interpretation and enforcement of a formal Offer to Settle.

The moving party achieved complete success on the motion and sought costs against the opposing party, who had contested whether acceptance of the offer resolved the entire action.

Applying the factors in Rule 57.01 of the Rules of Civil Procedure and relevant appellate authority, the court found the opposing party’s litigation conduct unreasonable and in bad faith, including prolonging proceedings and dissipating assets contrary to a prior order.

The court awarded the successful party $15,000 for the motion and assessed the opposing party’s allowable legal expenses under the wording of the accepted offer.

After calculating permitted legal expenses and applying a set-off between the competing amounts, the court determined the net deduction applicable to the judgment.

Following a family law motion in which the moving party sought leave to add a third party, conduct questioning, and amend the application to advance constructive and equitable trust claims, the court addressed the issue of costs.

The responding party was generally successful in resisting the motion.

The court found no factors warranting elevated or substantial indemnity costs.

Costs were therefore fixed on a standard basis.

The moving party was ordered to pay a lump sum costs award to the successful party.

Following a prior motion and cross‑motion concerning discovery sequencing, leave to conduct discoveries, and a site inspection under the Construction Lien Act and the Rules of Civil Procedure, the court addressed the issue of costs.

The plaintiff argued it was entirely successful and sought substantial indemnity costs based on alleged obstructive conduct by the defendant.

The defendant asserted its cross‑motion was successful and that the plaintiff’s conduct necessitated the motion.

The court accepted the plaintiff’s position that the defendant’s submissions attempted to re‑litigate issues already determined.

Costs were awarded to the plaintiff on a partial indemnity basis.

Following a successful motion striking a punitive damages claim in a proposed securities class proceeding, the defendants sought partial indemnity costs of approximately $43,000.

The plaintiff argued that no costs should be awarded because the motion raised a novel point of law concerning the availability of punitive damages under Part XXIII.1 of the Securities Act.

The court accepted that the issue was legally novel and reasonably contested, noting that existing case law did not clearly resolve the question.

Exercising its discretion, the court held that fairness justified departing from the usual costs rule.

No order as to costs was made.

The defendants sought costs relating to four motions in a proposed class action that were ultimately never argued, including motions to strike portions of the statement of claim, for a pre-certification notice, for a sealing order, and for inspection of documents referred to in the pleadings.

The plaintiffs amended their pleadings multiple times and eventually produced certain documents, resulting in the withdrawal or abandonment of the motions.

The court held that the defendants had been put to unnecessary expense due to the manner in which the plaintiffs prosecuted the action.

Exercising its discretion under Rule 57.01(1) of the Rules of Civil Procedure, the court concluded that the defendants were practically the successful party in respect of the abandoned or unargued motions.

Costs of $14,000 all-inclusive were awarded to the defendants, payable in any event of the certification motion.

The applicant brought a motion seeking a contempt finding and enforcement remedies after the respondent failed to comply with prior court orders requiring financial disclosure, payment of $40,000 for interim disbursements, and payment of costs of $8,770.84.

The court found the respondent had provided no satisfactory explanation for failing to comply and had not appealed the prior orders.

Rather than immediately finding contempt or dismissing the respondent’s case, the court imposed conditional participation at trial.

The respondent’s participation in trial, except on custody and access issues, was made conditional on full compliance with the prior orders within 30 days.

Failing compliance, the respondent’s pleadings would be struck except with respect to custody and access, and the applicant was awarded additional costs of $5,000.

Following a successful Rule 21 motion striking the plaintiff’s action arising from a motor vehicle collision with a cow on a roadway, the municipal defendants sought costs.

The plaintiff had alleged that the cow’s owner failed to confine the animal and that the municipalities failed to ensure proper confinement on private land.

After reviewing written submissions and the factors under Rule 57.01(1) of the Rules of Civil Procedure, the court determined a reasonable and fair cost award.

Emphasizing that cost awards should reflect what is fair and reasonable for the unsuccessful party to pay, the court ordered a modest all‑inclusive amount.

Following dismissal of the plaintiff’s action after trial, the defendant sought costs relying on a pre‑trial offer to settle served under Rule 49 of the Rules of Civil Procedure.

The offer proposed payment between $25,000 and $10,000 depending on the timing of acceptance, but it was not accepted.

The court rejected the plaintiff’s argument that the offer was merely a nuisance offer and found it constituted a genuine attempt to compromise the dispute.

Applying the principles governing Rule 49 offers where the result at trial is more favourable to the offeror, the court awarded partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

The defendant, Coventry Connections Inc., brought a motion under Rule 51.05 of the Rules of Civil Procedure for leave to withdraw an admission in its statement of defence that the co-defendant taxi driver was its employee.

The plaintiff opposed the motion.

Applying the three-part test from Antipas v. Coroneos, the Master found that the admission was inadvertent and that its withdrawal would not result in any non-compensable prejudice to the plaintiff.

The motion was granted, allowing the defendant to amend its pleading to reflect the discovery evidence that the driver was an independent owner and operator.

The moving municipal defendants brought a Rule 21 motion to strike a negligence claim arising from a motor vehicle collision with a cow on a public roadway.

The plaintiff alleged that the municipalities failed to ensure that the cow’s owner properly secured the animal on private property.

The court held that the pleaded duty of care had never been recognized in law and that there was insufficient proximity between the plaintiff and the municipalities to ground such a duty.

The court further found strong policy reasons against imposing municipal liability for monitoring privately owned animals or fencing.

The claim and a related cross‑claim against the municipalities were dismissed.

The defendant brought a motion to set aside a noting in default and for leave to file a defence in an action for statutory accident benefits.

The defendant argued the plaintiff's claim was premature because mediation at the Financial Services Commission of Ontario (FSCO) had not occurred.

The court found the mediation was deemed failed due to the expiration of the 60-day prescribed time limit, meaning the plaintiff's claim was not premature.

The court dismissed the motion to set aside the noting in default because the defendant provided no explanation for its delay in responding to the statement of claim and no evidence of an intent to defend.

Following a complex motion regarding insurance coverage for asbestos claims where the plaintiff was unsuccessful, the successful defendant insurers sought their costs.

The plaintiff argued for a reduction based on divided success on factual issues and refusal to admit facts.

The court rejected the plaintiff's arguments, finding the defendants were the clear winners and their refusal to admit facts was not unreasonable.

The court awarded partial indemnity costs to the defendants, making some reductions to specific bills for duplication of effort among multiple counsel, totaling approximately $546,887.

The applicants brought a motion regarding the respondent's compliance with a prior court order to produce financial records of a condominium corporation.

The respondent's director provided some documents at the hearing and advised that audited statements were being prepared.

The court found that while the contempt order was not fully purged, the blatant disregard had dissipated and the respondent was on the road to compliance.

The motion was adjourned sine die to allow auditors to complete their work, and the respondent's director was ordered to pay $1,000 in costs for the appearance.

Following dismissal of a motion for interim injunctive relief, the court addressed costs.

The respondents sought partial indemnity costs and the applicant did not challenge the amounts claimed or the reasonableness of the time spent and hourly rates.

The applicant argued that costs should be in the cause, determined by the judge hearing the ultimate application, or that no costs should be ordered.

Applying Rule 57.03 of the Rules of Civil Procedure, the court held that costs of the motion should be fixed absent a more just order and found no basis to defer or decline a costs award.

Partial indemnity costs were awarded to each respondent.

The appellant appealed a conviction for operating a motor vehicle with a blood alcohol concentration over 80 mg, arguing that the trial judge erred in dismissing a s. 11(b) Charter application and in finding that breath samples were taken as soon as practicable.

The Superior Court reviewed the delay analysis under the framework in R. v. Morin and found no error in the trial judge’s characterization of certain periods of delay as neutral rather than institutional.

The court held that the findings of minimal prejudice to the accused and the balancing of societal interests against the delay were reasonable and supported by the evidence.

The court also upheld the trial judge’s conclusion that the breath samples were taken within a reasonably prompt timeframe under the circumstances.

The conviction was therefore affirmed.

The accused was found guilty by a jury of second degree murder, aggravated assault, and committing aggravated assault with a weapon following a home invasion where the victim was killed with a shotgun.

The court considered the jury's recommendations for parole ineligibility, the aggravating factor of a prior first degree murder conviction two weeks prior, and the violent nature of the execution-style killing.

The accused was sentenced to life imprisonment without parole for 25 years for second degree murder, with concurrent sentences for the assault charges.

Following the dismissal of a proposed class action certification motion and the dismissal of claims against one defendant for failure to disclose a reasonable cause of action, the court determined the appropriate costs awards.

The defendants sought substantial partial indemnity costs for successfully resisting certification and for obtaining dismissal of the claim against the diocesan defendant.

The plaintiffs and the Class Proceedings Fund argued for reductions based on public interest, access to justice concerns, and alleged unnecessary litigation steps.

The court rejected arguments for a public interest or access-to-justice discount and confirmed that the ordinary rule that costs follow the event applies in class proceedings.

The Grenville defendants were awarded their full claimed costs, while the diocesan defendant’s claim was reduced as excessive.

The applicant sought a determination under the Repair and Storage Liens Act regarding whether the respondent had a right to a lien for storage fees on his boat.

The applicant claimed he was allowed to store the boat for free, while the respondent claimed unpaid storage fees.

The court found that the applicant stored his boat at the respondent's commercial premises and owed reasonable storage fees.

The court held the respondent was entitled to a storage lien, lifted the interlocutory injunction prohibiting the sale of the boat, and ordered the applicant to pay $8,672.00 in outstanding fees plus costs.

The applicant insurer sought a declaration that it had no duty to defend its insureds—a minor and his parents—in a civil action arising from a pellet gun shooting.

The minor had been driving a car while his friends shot pellet guns, injuring the plaintiff, and was convicted of possession of a weapon for a dangerous purpose.

The parents were sued for negligent supervision.

The court held that the minor's actions fell within the policy's intentional or criminal act exclusion, relieving the insurer of the duty to defend him.

However, the court found that the negligence claims against the parents were separate and not derivative of the intentional tort, meaning the exclusion clause did not apply to them and the insurer retained a duty to defend the parents.

The defendants brought a motion to strike the plaintiff's statement of claim, which alleged unpaid overtime and defamation.

The court found that the employment-related claims were barred by sections 97(1) and (3) of the Employment Standards Act, as the plaintiff had already pursued and resolved these claims through the Ministry of Labour.

Furthermore, the defamation claim was barred by absolute privilege, as the alleged defamatory statements were made during the course of the quasi-judicial Employment Standards Act proceeding.

The court ruled that both legal claims must fail and awarded costs to the defendants.