SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Lantaigne et al v. Whitten & Lublin et al
BEFORE: Associate Justice Kamal
COUNSEL: See Appendix A
CASE CONFERENCE ENDORSEMENT
Background
1This case conference was scheduled to discuss the Plaintiff’s Rule 59.06 Motion to vary my February 3, 2026 Cost Order and December 11, 2025 and February 3, 2026 Endorsements.
2In advance of the case conference, the Defendants wrote to the Court, taking the view that the issues respecting the Plaintiff’s proposed Rule 59.06 motion can be dealt with substantively at this Case Conference. At first, the Plaintiff, Mr. Lantaigne, disagreed that the final determination of the motion should occur at the June 17, 2026 case conference.
3I advised the parties that I would hear submissions on whether the issues can be determined at a case conference or a motion.
4After some discussion about the process of the motion and the positions of the parties regarding whether this should be dealt with today, all parties agreed that I could determine the Plaintiff’s Rule 59.06 motion at today’s conference.
5The Plaintiff himself sent his motion record to the Office of the Associate Judges for my consideration and to be decided at the case conference.
The Plaintiff’s Request
6Mr. Lantaigne seeks an order under Rule 59.06(1), amending my February 3, 2026 costs endorsement and the resulting costs order.
7In the alternative, Mr. Lantaigine seeks an order under Rule 59.06(2)(a) setting aside or varying the February 3, 2026 costs endorsement and any resulting costs order on the basis of facts arising or discovered after the order was made,
8In the further alternative, Mr. Lantaigine seeks an order under Rule 59.06(2)(d), re-determining the costs of the December 11, 2025 case conference on a corrected record, or alternatively reserving those costs for determination by the Court at or after the September 10, 2026 motions to strike and the plaintiff’s motion for leave to amend.
9In the further alternative, Mr. Lantaigine seeks an order under Rule 59.06(1), Rule 59.06(2)(a), and/or Rule 59.06(2)(d), amending or varying the February 3, 2026 costs endorsement and any resulting costs order so that the findings or statements in paragraphs 37, 39, 40, 41, 45, 49, 56, 57, 58 and 60 of the December 11, 2025 endorsement are given no effect for costs purposes only unless and until the pending motions to strike and the plaintiff’s motion for leave to amend are determined, or as this Honourable Court otherwise directs.
10Finally, in the further alternative, Mr. Lantaigne seeks an order under 59.06(2)(b) suspending or staying enforcement of the February 3, 2026 costs endorsement and any resulting costs order pending determination of this motion or further direction of the Court.
11Mr. Lantaigne repeatedly stated that he does not seek to disturb the portions of the December 11, 2025 endorsement that set aside the notings in default, or scheduled the defendants’ motions to strike.
The Plaintiff’s Position
12Mr. Lantaigne submits that the costs determination should be amended under Rule 59.06(1) because the Court did not adjudicate material costs considerations under Rule 57.01. These include issues of costs causation, urgency, duplication, procedural complexity, the reasonableness of the defendants’ conduct, and the plaintiff’s efforts to narrow the issues. Mr. Lantaigne further submits that relevant factual context was not addressed, including the existence of related proceedings, the status of certain claims as protective and unserved, and steps taken by the plaintiff to coordinate or reduce overlapping issues.
13Mr. Lantaigne also submits that the costs award failed to address whether multiple defence parties and counsel advanced overlapping or duplicative work, and whether it was appropriate to award more than one set of costs where parties were acting in the same or overlapping interests.
14In the alternative, Mr. Lantaigne relies on Rule 59.06(2)(a), submitting that materials served after the costs endorsement, including later motion records and a Fresh as Amended Statement of Claim, demonstrate that issues underlying the costs determination remain live and unresolved and will be addressed at the scheduled hearing on September 10, 2026.
15Mr. Lantaigne states that the costs determination was based on an incomplete or misapprehended record concerning his conduct, alleged duplication of proceedings, the reasonableness of the defendants’ conduct, and the basis for the costs award. He describes communications in November 2025 in which he indicated a willingness to consider setting aside defaults if proper motion materials supported by affidavit evidence were provided, and in which he questioned the need for urgency. He states that, despite this, defence counsel pursued urgent case conference requests and continued to raise uncertainty regarding TerraZero Technologies Inc.’s default status, notwithstanding that he had provided a court‑stamped noting in default.
16In relation to the procedural context leading to the December 11, 2025 case conference, Mr. Lantaigne addresses several matters. The defendants sought to set aside the defaults and to schedule motions to strike. They also asserted that there were multiple related proceedings in other jurisdictions. Mr. Lantaigne states that the defendants’ materials did not include what he describes as relevant context. He identifies some alleged omissions, including a Toronto defamation action that had been commenced against him by Whitten & Lublin Professional Corporation, and a British Columbia proceeding that he commenced. He also says he had taken steps to narrow and coordinate issues.
17In his affidavit, Mr. Lantaigne refers to the findings in the December 11, 2025 endorsement, including statements that he acted tactically or improperly, that the proceedings were duplicative, and that the defendants’ conduct and proposed motions were reasonable. He states that those findings were made without the full context described in his affidavit.
18Mr. Lantaigne also addresses the defendants’ costs submissions, including joint and separate costs outlines, which sought substantial costs on the basis that the defendants were successful on all contested issues. He identifies instances in which multiple defence counsel claimed time in relation to steps concerning the same defaults and motions, including work by Kestenberg Litigation LLP, Durant Barristers on behalf of LawPRO, and other counsel. He states that these materials are relevant to whether work was overlapping or duplicative across defence groups.
19Mr. Lantaigne acknowledges that his original statement of claim was broad and raised case management concerns. He states, however, that he took steps to narrow the claims, including proposing to remove certain claims and filing a Fresh as Amended Statement of Claim that limited the scope of the action.
20He further states that, since the costs endorsement, additional motion materials have been served for hearings scheduled for September 10, 2026, and that issues relating to duplication, jurisdiction, abuse of process, and the merits of the defendants’ motions remain live and contested. He relies on these materials only to show that the issues underlying the costs determination have not yet been finally resolved.
21Mr. Lantaigne states that he does not seek a determination of those issues on this motion, but submits that final costs consequences should not have been imposed on the basis of findings relating to matters that remain unresolved.
22Mr. Lantaigne maintains that the motion is not an appeal, but a request to correct or vary the costs consequences on the basis that the determination was made without adjudicating material particulars and on an incomplete record.
23In oral argument, Mr. Lantainge submitted that he was seeking a reduction of costs to $1000 per Defendant.
The Defendants’ Collective Position
24The Ontario defendants take the position that the motion discloses no basis for relief under Rule 59.06. They submit that Rule 59.06 is narrow in scope and is not a substitute for an appeal, but is confined to limited circumstances such as accidental slip or omission, fraud, or facts arising or discovered after the order was made.
25The defendants argue that Mr. Lantaigne’s materials do not identify any such circumstances. In their submission, the motion attempts to revisit substantive determinations already made by the Court, which is not permitted under Rule 59.06, including under the “slip rule” or the provisions concerning fresh evidence.
26Put simply, the Defendants submit that Mr. Lantaigne is just trying to submit more materials than he previously submitted and that he is not happy with the decision. This is not the appropriate use of Rule 59.06.
27Specifically, they point to paragraph 56 of Mr. Lantainge’s affidavit in which he says, “Had the complete record described above been before the Court at the case conference and in the costs process, I believe the Court may have reached a different conclusion concerning the adverse findings about my conduct, duplication, the reasonableness of the defendants’ conduct, and the resulting cost consequences that followed.” They submit this chararterizes Mr. Lantaigne’s position, and it illustrates that this motion is not an appropriate application of Rule 59.06.
28They further submit that the requirements for relief based on newly discovered evidence are not met, as there is no indication that any such evidence could not have been obtained with reasonable diligence at the time of the original orders.
29The non-Ontario defendants maintain that they continue to challenge the Court’s jurisdiction and that their participation in these submissions is made without attornment.
Law and Analysis
General Principle Regarding Rule 59.06
30Rule 59.06 provides as follows:
AMENDING, SETTING ASIDE OR VARYING ORDER
Amending
59.06 (1) An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.
Setting Aside or Varying
(2) A party who seeks to,
(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;
(b) suspend the operation of an order;
(c) carry an order into operation; or
(d) obtain other relief than that originally awarded,
may make a motion in the proceeding for the relief claimed.
31Rule 59.06 is not a do-over. See Massiah v. Justices of the Peace Review Council, 2018 ONSC 2179 at para. 16.
32Rule 59.06 is not an opportunity to seek a new hearing to make the arguments that were not previously made.
33Rule 59.06 does not itself set out a single comprehensive test.
34Orders under Rule 59.06 are generally discretionary. An order under subrule 59.06(1) is intended to be corrective and administrative, but not a full rehearing. An order under subrule 59.06(2) is discretionary. This is a narrow and exceptional remedy.
35In the present case, Mr. Lantaigne primarily relies on Rule 59.06(1), or in the alternative, 59.06(2)(a), or in the further alternative, subrule 59.06(2)(d), or even under subrule 59.06(2)(b)
Subrule 59.06(1)
36Subrule 59.06(1) deals with correcting an order that contains an accidental error or needs correction on a point that was not adjudicated upon. It applies where the court order contains a typo or perhaps where the judge forgot to rule on a point that was raised at the hearing. It is not a basis to raise new grounds not raised before or to complain about former counsel’s handling of a proceeding. See Massiah v. Justices of the Peace Review Council, 2018 ONSC 2179 at para. 10.
37Subrule 59.06(1) is not intended to create a full rehearing.
38The evidence and materials before me do not satisfy me that the order contains an accidental error or needs correction on a point that was not adjudicated upon. This is not a situation where the order contains a typo. Furthermore, there is no suggestion that I forgot to rule on a point that was raised at the hearing. Rather, Mr. Lantaigne is seeking to introduce new arguments and seeks to have new considerations related to the factors in Rule 57.01. However, subrule 59.01(1) is not a basis to raise new grounds not raised before. The costs endorsements of February 3, 2026 details the full list of factors to be considered under Rule 57.01.
39Mr. Lantaigne provided detailed written submissions dated January 16, 2026.
40Mr. Lantaigne takes the position that the costs award failed to address whether multiple defence parties and counsel advanced overlapping or duplicative work, and whether it was appropriate to award more than one set of costs where parties were acting in the same or overlapping interests.
41However, costs submissions and the Bills of Costs were considered in the previous determination of the costs order. Mr. Lantaigne provided fulsome submissions, and I considered the factors set out in Rule 57.01. Specifically, I noted that the amount is reasonable because in just over a month, there were over 400 emails sent by the parties related to this matter. The barrage of lengthy emails and multiple drafts of motion materials, sent by the Plaintiff and his constantly changing litigation positions generated significant costs on the part of the 6 sets of defence counsel.
42I also note that some of the defendants sought a higher scale of costs. After considering the factors set out in Rule 57.01, I awarded partial indemnity costs to all defendants.
43I see no reason to vary, amend or suspend the costs order pursuant to subrule 59.06(1). For the reasons set out above, I am not prepared to use my discretion to grant the request of the Plaintiff, and I see no administrative error requiring correction.
Subrule 59.06(2)(a)
44Turning now to subrule 59.06(2)(a). Subrule 59.06(2)(a) allows a party to challenge an order obtained by fraud or based on facts arising or discovered after the order was made. Rule 59.06 is not an opportunity to second-guess which arguments to make at a hearing or to seek a new hearing to make the arguments that counsel (or a self-represented litigant) previously chose not to make. That is what the applicant is seeking to do here. See Massiah v. Justices of the Peace Review Council, 2018 ONSC 2179 at para. 11.
45In determining this ground, the test set out in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983 applies. See Holterman v. Fish, 2017 ONCA 769 at paras. 17-19.
46In 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983, the moving party sought to reopen a trial on the basis of fresh evidence. The Supreme Court ruled against the moving party, and cautioned at para. 61 of its decision that the discretion to reopen a trial should be exercised “sparingly and with the greatest care.”
47The test from Sagaz is often reduced to two questions: (1) whether the new evidence, if presented at trial, would probably have changed the result, and (2) whether the evidence could have been obtained before trial by the exercise of reasonable diligence.
48In Holterman v. Fish, 2017 ONCA 769, the Court of Appeal said but more is involved. As the Court stated in Mehedi v. 2057161 Ontario Inc., 2015 ONCA 670, at para. 20, the test “includes considerations of finality, the apparent cogency of the evidence, delay, fairness and prejudice.”
49Applying the Sagaz test to the present case, the new evidence set out in Mr. Lantaigne’s affidavit for the current request would not have changed the result in my costs endorsement. Particularly, nothing in the new evidence mitigates the fact that the legal issues at the December case conference were not complicated, but became complicated because of Mr. Lantaigine’s insistence that the notings in default not be set aside. I noted that in just over a month, there were over 400 emails sent by the parties related to this matter. The lengthy emails and multiple drafts of motion materials, sent by the Plaintiff and his constantly changing litigation positions generated significant costs on the part of the 6 sets of defence counsel.
50More importantly, the second part of the Sagaz test is whether the evidence could have been obtained before the hearing by the exercise of reasonable diligence. Mr. Lantaigne was given the opportunity to make submissions. He did so. Subrule 59.06(2)(a) is not an opportunity to supplement evidence and submissions that were available at the time of the original determination.
51The evidence before me does not satisfy me that it is appropriate to set aside or vary the order on the ground of fraud or of facts arising or discovered after it was made. I am not prepared to use my discretion to set aside or vary the order.
Subrule 59.06(2)(d)
52Subrule 59.06(2)(d) does not permit a party to seek relief that the Court considered and declined to grant. See Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 512 at para. 8.
53Rule 59.06(2)(d) has no application in the present circumstances. Mr. Lantaigne is not asking for “other relief than that originally awarded”. He is asking for the court to grant relief that it considered and declined to grant. See See Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 512 at para. 8.
54Furthermore, Rule 59.06(2)(d) allows a party to move to “obtain other relief than that originally awarded” and is available only to a party who was granted relief on the original motion. See Eastwalsh Homes Ltd. v. Anatal Development Corp., [1990] O.J. No. 2207 (Gen. Div.) at p. 4 (QL) and Verge Insurance Brokers Limited et al. v Richard Sherk et al., 2015 ONSC 4044 at paras. 77 and 78.
55That is not what happened here. Relief was not granted to Mr. Lantaigne in the costs order.
56A motion to reconsider a decision is not an opportunity to reargue the appeal or to “recast or revisit issues that [the party] has already argued”: McDowell v. Barker, [2014] O.J. No. 2363 (C.A.), at paras. 9-11; Hoang v. Mann Engineering Ltd., 2015 ONCA 838, at paras. 13-15.
57Accordingly, it is not appropriate to use my discretion under subrule 59.06(2)(d) as requested by Mr. Lantaigne.
Subrule 59.06(2)(b)
58With respect to Mr. Lantaigne’s request under subrule 59.06(2)(b), in order to justify a stay of proceedings, Mr. Lantaigne must satisfy the court that the following two conditions are met:
(a) The continuation of the proceedings would cause an injustice to the defendant because it would be oppressive or vexatious or would be an abuse of the process of the court in some other way, and
(b) A stay would not cause an injustice to the plaintiff.
See Canadian Express Ltd. v. Blair, 1992 CanLII 7535 (ON CTGD) and Category 5 Imaging Ltd. v. Antoniadis, 2013 ONSC 7989 at para. 8.
59I have considered Martin v. Goldfarb [2001] O.J. No. 1886, which related to the suspending of a costs order made at trial after a successful appeal on the issue of damages pending reconsideration of damages by the trial judge.
60Having found that none of Mr. Lantaigne’s primary arguments apply, I see no reason to suspend the order under subrule 59.06(2)(b).
61I am not satisfied that the continuation of the proceedings would cause an injustice to Mr. Lantaigne because it would be oppressive or vexatious or would be an abuse of the process of the court in some other way. The evidence before me does not establish that the costs order is oppressive or vexatious.
62I am not satisfied that a stay would not cause an injustice. Mr. Lantaigne continues to act unreasonably in this matter. For example, for the present motion, he served multiple versions of unsworn motion records, continued to change his position, and sent an unreasonable amount of correspondence. The Defendants are prejudiced as their legal fees increase. Staying the previous costs order would cause an injustice to the Defendants.
63In my present circumstances, it is not appropriate to suspend the costs order under subrule 59.06(2)(b).
Conclusion
64Mr. Lantaigne’s request to set aside, amend or vary my costs endorsement and order of February 3, 2026 is dismissed.
65At the conclusion of the conference, Ms. Brown raised a concern regarding Mr. Lantaigne’s recent conduct. While Ms. Brown was unavailable for two weeks (known to Mr. Lantaigne), Mr. Lantaigne was repeatedly emailing other members of her firm, including support staff, on matters that were not urgent. I explained that, without justification, such conduct was not appropriate. Mr. Lantaigne acknowledged there was no urgency. After some discussion, Mr. Lantainge agreed such behaviour would cease immediately.
______________________________________
Associate Justice Kamal
Appendix A
Martin Lantaigne, Self-represented Plaintiff 2846869 Ontario Inc. Phone No. : 613-220-6046 E-mail: Martin.lantaigne@gmail.com
Jonathan Tatner and Jennifer Wu, for the Defendant, Daniel Reitzik Phone No. : 647-798-0605 | 437-538-3087 E-mail: cstribopoulos@dolden.com | jtatner@dolden.com
Michael Kestenberg and Aaron Hershtal, for the Defendants, Whitten & Lublin Professional Corporation, David Whitten, Daniel Lublin, and Athan Makrinos Phone No. : 416-716-7820 | 416-399-8651 E-mail: michael@kestenberglitigation.com | aaron@kestenberglitigation.com
Dahlia Shuhaibar, for the Defendant, TerraZero Technologies Inc. Phone No. : 613-501-5350 E-mail: dshuhaibar@ovcounsel.com
Robin Brown, for the Defendant, Nicholas Ayling Phone No. : 613-780-2022 E-mail: rbrown@cavanagh.ca
Jason Yamashita, for the Defendants, Glacier Media Inc. and Dustin Godfrey Phone No. : 604-661-9347 E-mail: jyamashita@farris.com.ca
Andrew Paterson acting as agent for Counsel for the following Defendants: Whitten & Lublin Professional Corporation, David Whitten, Daniel Lublin, Athan Makrinos and Nicholas Ayling Phone No. : 613-290-6427 E-mail: apaterson@durantbarristers.com