Civil Litigation - Defendant - SCJ

This decision concerns the sanction for contempt and the allocation of costs following findings that the defendants failed to comply with a court order (the "Turnover Order") in a complex commercial dispute.

The court awards full indemnity costs to the plaintiffs for the contempt motion, reduced by 25% due to Charter breaches, and substantial indemnity costs to the defendants for a successful Charter-based stay motion.

The court also addresses the principles of set-off and mutuality of debt in the context of competing costs awards.

The plaintiff school board commenced an application in Brampton to appoint an arbitrator for a business dispute arising from a fire.

The defendant objected to the arbitration and brought a motion to transfer the venue of the application to Toronto, arguing the dispute had no connection to Brampton.

The court dismissed the motion, finding that the question of who arbitrates has no natural connection to any venue and that transferring the matter would cause unnecessary delay and waste judicial resources.

The parties attended a case conference to schedule several proceedings, including the plaintiffs' Rule 59.06 motions to set aside previous orders, the defendants' summary judgment motion, and an application to declare the plaintiffs vexatious litigants.

The self-represented plaintiff argued that a proposed constitutional challenge regarding the conduct of opposing counsel and the judiciary should be heard first.

The court rejected this argument, noting the constitutional challenge had not yet been commenced and the other proceedings had been outstanding for years.

The court scheduled the outstanding motions for a combined hearing.

The Attorney General for Ontario brought an application seeking a declaration that the six-month temporary suspension of limitation periods due to the COVID-19 pandemic should not be counted in limitation period calculations going forward.

The application was brought against 'Persons Unknown' with no live dispute or adversarial parties.

The court dismissed the application, holding that it is constitutionally inappropriate for the court to render an abstract legal opinion to endorse the executive branch's view of its regulatory efforts without a real dispute between interested parties.

The applicants sought a declaration that a liver transplant waiting list rule adopted by Trillium Gift of Life Network, which requires a six-month wait for patients whose liver failure is caused by alcohol consumption, is unconstitutional.

The Province moved to dismiss the application against it, arguing that the application challenges the rule of the delegate, not the delegating legislation or any act of the Minister.

The court agreed, holding that under civil procedure rules, a challenge to the constitutionality of delegated legislation must be brought against the rule-making authority, not Her Majesty the Queen.

The application was dismissed against the Province without costs.

The plaintiffs requested a three-month adjournment of a scheduled mini-trial following the discharge of their counsel due to a breakdown in the lawyer-client relationship.

The defendants opposed the adjournment, citing a history of delay and prejudice.

The court balanced the interests of the parties and the administration of justice, noting the lengthy procedural history, the plaintiffs' familiarity with the case, and the prejudice of further delay.

The court dismissed the adjournment request, ordering the mini-trial to proceed as scheduled.

This supplementary endorsement addresses a dispute over compliance with a previous court order for the production of minutes of settlement.

Schindler Elevator Corporation argued that the defendants (WBP) had excessively redacted the minutes beyond what was permitted, specifically regarding references to items in an exhibit.

The court found that WBP's additional redactions were not justified and went beyond the original order.

It was determined that knowing the specific items to which settlement compensation was allocated was crucial for Schindler to prepare for trial and assess potential double-recovery.

The court ordered WBP to produce a further version of the minutes of settlement, removing the impugned redactions while maintaining the confidentiality of specific settlement and allocation amounts.

The plaintiffs and the defendant police officer provided written submissions on costs following the plaintiffs' successful motion for leave to amend their statement of claim.

The defendant argued the plaintiffs' submissions were late, but the court found them timely under the Rules of Civil Procedure as the deadline fell on a weekend.

Although the plaintiffs were successful on the motion, the court expressed concern over the timing of the new, more serious allegations of battery and sexual assault, which the defendant argued were an attempt to circumvent the Limitations Act.

Consequently, the court declined to award costs immediately to the successful plaintiffs, instead fixing costs at $6,500 payable in the cause.

Following an eight-day trial where the Ottawa Convention Centre Corporation (OCCC) succeeded on its claim and treefort Hip Productions Inc.'s counterclaim was dismissed, the court addressed the issue of costs.

OCCC sought substantial indemnity costs of over $400,000.

The court found that while OCCC's pre-litigation offer demonstrated reasonableness, it did not, by itself, warrant substantial indemnity costs.

However, treefort's unsubstantiated allegations of bad faith, fraud, and dishonesty against OCCC and its senior executives were deemed serious enough to fall into the "special and rare" category justifying substantial indemnity costs, limited to the costs of attending at trial.

The court awarded OCCC costs of $320,000, inclusive of disbursements and taxes.

Following a 7-day trial regarding a neighbourhood dispute, the successful defendants/plaintiffs by counterclaim sought costs of $75,972.99 on a substantial indemnity basis.

The court found that their Rule 49 offer to settle was not strictly beaten at trial, and the unsuccessful party's conduct was not so reprehensible as to warrant substantial indemnity costs.

Applying the principles of reasonableness and proportionality under Rule 57, the court fixed costs payable to the successful parties at $47,194.81.

The defendants requested a review under Rule 2.1.01 of the Rules of Civil Procedure to dismiss the plaintiff's action as frivolous, vexatious, or an abuse of process.

The plaintiff, who had commenced multiple similar actions, sued various government entities and a legal clinic over his involuntary committal to a hospital in 2010.

The court found the statement of claim lacked material facts, contained grandiose and legally baseless claims, and was barred by the six-year limitation period under the Limitations Act.

The action was dismissed against all defendants.

Sylvia Hawkins, previously declared a vexatious litigant, sought leave to bring a motion to change a prior custody order.

The court denied her request for an adjournment and leave, finding it another attempt to re-litigate previous decisions regarding custody of Selena Antonia Schlosser.

Anthony Schlosser's cross-motion for child support and to cancel access was dismissed due to improper form under the Family Law Rules.

However, his request for clarification regarding who could pick up the child after access visits was granted, allowing his wife or other family members to do so.

Ms. Hawkins was ordered to pay Mr. Schlosser $1,000 in costs.

On a summary judgment motion by a municipality against a developer's crossclaim arising from a winter slip-and-fall, the court held the matter could be fairly and justly resolved without a trial.

The record established on a balance of probabilities that the plaintiff fell on a private driveway rather than on the municipal sidewalk.

In any event, the municipality had not assumed the subdivision roads by by-law at the material time, so no statutory duty or liability under the Municipal Act had attached.

Contractual, nuisance, implied assumption, and by-law based arguments were rejected, and the crossclaim was dismissed.

The defendants moved to adjourn a commercial trial for at least ninety days after the plaintiffs produced late backup financial documents affecting the quantification of damages and expert evidence.

The court held that fairness in civil procedure must be read through the proportionality, timeliness, and affordability principles emphasized in Hryniak, and that perfect disclosure is not required before trial can proceed.

The defendants had sufficient time to take practical steps, including limited further discovery and expert review, and had not shown that a lengthy adjournment was necessary.

The motion was dismissed, limited additional discovery and trial management directions were ordered, and the plaintiffs received costs of $3,000.

Following dismissal of a motion under s. 47 of the Construction Lien Act seeking to discharge a construction lien as filed out of time, the court determined the appropriate costs award.

The successful lien claimant sought substantial indemnity costs alleging the motion was tactical and should have been abandoned after cross‑examination evidence emerged.

The court held there was no unreasonable conduct or bad faith justifying substantial indemnity and applied the general discretion under the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure.

Considering reasonableness, complexity, the amount in issue, and duplication of lawyer time, the court reduced the claimed partial indemnity fees.

Costs were fixed at $8,000 plus HST and disbursements, payable within 30 days.

The defendant brought a motion to transfer four Toronto actions to Brampton so that they could be tried with two related Brampton actions arising from the same motor vehicle accident.

The motion relied on Rule 13.1.02 of the Rules of Civil Procedure governing transfers of proceedings between courts.

Although the accident occurred in Toronto and several Rule 13.1.02 factors appeared to favour Toronto as the venue, the evidentiary record lacked information regarding the convenience of parties and witnesses and whether judicial resources were available in the proposed receiving region.

The court also noted that the required consultation protocol with the Regional Senior Justices had not been followed.

The motion was therefore dismissed without prejudice to bringing a motion to transfer the Brampton actions to Toronto.

A landlord brought a motion seeking a finding of civil contempt against a tenant corporation and its principal for alleged breaches of multiple court orders arising from a commercial lease dispute.

The court considered whether the orders were clear and unequivocal, whether the respondents deliberately and wilfully disobeyed them, and whether contempt was proven beyond a reasonable doubt.

The court found several deliberate breaches, including denying the landlord access to the premises, entering the premises contrary to a court order, removing non‑perishable items when only perishables were permitted, failing to remove perishable goods as ordered, and failing to pay heating costs required by a consent order.

The court declined to find contempt in certain instances where the evidence created reasonable doubt about deliberate breach.

The respondents were found in contempt of multiple orders and the issue of penalty and costs was adjourned.

The assignee of a mortgagee brought a motion for summary judgment seeking dismissal of a contractor’s lien action and return of funds paid into court as security for the lien.

The moving party argued the lien was invalid because it was registered beyond the 45‑day period following publication of the certificate of substantial performance and because certain change orders and delay claims were not approved by the architect as required by the contract.

The contractor maintained that additional work continued after substantial performance through change orders and that delay costs and a municipal fine were approved by the lender acting as payment certifier.

The court held that genuine issues for trial existed regarding whether change orders and delay costs were properly approved, whether the lender could act as substitute certifier under industry practice or implied contractual terms, and whether the lien was timely preserved.

Summary judgment was therefore inappropriate.

Homeowners brought motions to amend their statement of defence and counterclaim to particularize defective installation of a radiant in‑floor heating system and to obtain summary judgment based on findings from the Licence Appeal Tribunal under the Ontario New Home Warranties Act.

The court held the amendment was not a new cause of action but merely a particularization of negligence already pleaded concerning the concrete foundation and construction defects.

Applying issue estoppel principles, the court found the Tribunal’s determination that the heating system constituted a major structural defect was a final judicial decision between the same parties and resolved the same issue.

Summary judgment was therefore granted on liability for breach of contract relating to the heating system, but damages were left for determination at trial.

The applicants sought to set aside a vesting order that removed a trust company and a deceased partner from title to an island property and vested title solely in the respondent.

They argued the order was made without notice and that the Statute of Frauds barred reliance on an alleged oral agreement transferring the property.

The court held that once a vesting order is registered on title, its attributes as a court order are spent and it cannot be set aside under Rule 38.11.

Treating the application as one for rectification of title under the Land Titles Act, the court found sufficient evidence of part performance supporting an oral agreement transferring the deceased partner’s interest.

The evidence did not establish that the applicants were entitled to rectification of the register.