Civil Litigation - Defendant - SCJ

This decision fixes costs following a motion in long-running litigation involving the Estate of Sulochana Shanthakumar and the Royal Bank of Canada.

The court awarded partial indemnity costs to RBC and its counsel, rejecting the request for substantial indemnity and the applicant’s claim for costs.

The reasons review the history of the litigation, the conduct of the parties, and the factors under Rule 57.01 of the Rules of Civil Procedure, ultimately awarding $16,500 in costs to be paid by Mr. Mylabathula to RBC.

The plaintiffs requested a case conference to fix a trial date despite failing to complete a mandatory mediation by the court-ordered deadline.

One of the plaintiffs booked a vacation that conflicted with the scheduled mediation date, showing disregard for the court's prior order.

The court refused to dispense with the mediation requirement or hold a trial date as a placeholder, and consequently struck the action from the trial list until mediation is completed and the matter is truly ready for trial.

The defendants (owners) brought a motion under Rule 59.06(2)(c) for directions on carrying a previous judgment into operation.

The dispute centered on whether the owners were required to pay the notice holdback amount twice: once to the successful subcontractor lien claimants under the Construction Lien Act, and again to the general contractor for breach of contract.

The court held that the owners, having properly retained the holdback, were not required to pay twice.

Payments made to the subcontractors from the holdback trust fund are to be set off against the amount owing to the general contractor under the judgment.

The plaintiff, a minority shareholder of a corporation, brought a motion to amend his statement of claim and for leave to commence a derivative action on behalf of the corporation against a real estate brokerage for breach of a joint venture agreement.

The brokerage opposed the motion, arguing the amendments constituted a new cause of action outside the limitation period and that the plaintiff did not meet the requirements for a derivative action.

The court granted the motion, finding that the brokerage had notice of the factual matrix underlying the claims within the limitation period, and that the plaintiff satisfied all statutory requirements to bring a derivative action in good faith.

The applicants and respondents are neighbours who disputed ownership of a patch of land behind the respondents' garage.

The applicants sought an injunction to remove a storage container placed by the respondents, claiming ownership of the land through a self-conveyance.

The respondents cross-applied for a declaration of ownership by adverse possession.

The court traced the historical conveyances and determined that neither party owned the land nor held a right of way over it; rather, it belonged to a third-party neighbour.

Both the application for an injunction and the cross-application for adverse possession were dismissed.

The plaintiffs, Amber Lighting Limited and Alka Bhargava, brought a motion for summary judgment against the defendants, Rosa Petrozza and Vito Petrozza, seeking $123,500 plus interest.

The dispute arose from a mortgage default, with the core issue being whether the defendants were entitled to these additional funds in priority to the plaintiffs' third mortgage.

The court dismissed the motion, finding that a prior default judgment by Gray J. had already determined the amount owing under the second mortgage, including the additional funds.

The plaintiffs' attempt to dispute this was deemed a collateral attack on that judgment, which they had not moved to set aside despite being given the opportunity.

The plaintiff law firm brought a motion to enforce an offer to settle regarding unpaid legal fees and the release of the defendant's matrimonial file.

The firm also sought a declaration of a solicitor's lien and advance payment of its accounts pending assessment.

The court found that the offer to settle had been accepted and ordered the firm to release the file, while directing the defendant to hold funds in trust as security.

The court dismissed the firm's requests for a solicitor's lien and advance payment.

Due to the acrimonious and disproportionate conduct of both counsel, the court declined to award costs to either party.

The plaintiff contractor was hired to renovate a barn for the defendants under a lump sum contract.

The contractor claimed the defendants agreed to a second contract with an increased price for a third floor, and also claimed for various oral extras.

Two unpaid suppliers registered construction liens against the property.

The court found that the defendants only agreed to the original contract and that no third floor was built.

The court assessed the claimed extras, allowing some and dismissing others.

The court also determined the owners' holdback liability to the lien claimants under the Construction Lien Act.

The defendant brought a motion to dismiss the action for delay pursuant to Rule 24.01 of the Rules of Civil Procedure.

The plaintiff opposed the motion and requested an extension of time to restore the action to the trial list.

The court found that the delay was neither intentional nor contumelious, noting that much of the delay was caused by the plaintiff's former counsel withdrawing due to conflicts of interest.

The court also found no prejudice to the defendant, as all witnesses and documents were available.

The defendant's motion was dismissed, the plaintiff's request for an extension was granted, and costs of $20,000 were awarded to the plaintiff.

The court considered whether a civil action should be summarily dismissed under Rule 2.1 of the Rules of Civil Procedure as frivolous and vexatious.

The plaintiff alleged that medical professionals and hospital staff had stolen and sold the plaintiff’s newborn child and made additional unsupported allegations, including accusations of organ trafficking.

The statement of claim contained no prayer for relief and appeared to arise from circumstances involving the lawful apprehension of a child under child protection legislation.

After providing notice under Rule 2.1 and reviewing written submissions, the court concluded the action was frivolous and vexatious on its face.

The action was dismissed with substantial indemnity costs payable to the defendants.

The moving defendants sought leave under s. 215 of the Bankruptcy and Insolvency Act to continue a crossclaim against the trustee in bankruptcy of a bankrupt tenant arising from environmental damage caused by a leaking tank at leased premises.

The court considered whether the proposed crossclaim disclosed a viable claim of gross negligence, given statutory protections limiting a trustee’s liability for post‑appointment environmental damage.

The court held that the evidentiary record disclosed a sufficient factual basis to support a potential claim that the trustee, while retaining possession of the premises and having prior knowledge of environmental risks and inadequate site security, may have failed to take reasonable preventative steps.

The court further held that the discontinuance of the plaintiff’s claim against the trustee did not bar the crossclaim for contribution and indemnity under the Negligence Act.

Leave was granted nunc pro tunc and the crossclaim was declared not dismissed under Rule 23.03(1.1).

The appellants appealed a Master’s decision dismissing their motion to remove opposing counsel due to an alleged conflict of interest arising from a prior limited solicitor‑client interaction.

The appellants also appealed the Master’s costs award.

The court held that the Master committed no palpable and overriding error in finding that any privilege in a legal invoice had been waived and that the earlier retainer was not sufficiently related to the present dispute to justify removal of counsel.

The court further held that the lawyer’s potential role as a witness was speculative and did not justify disqualification.

The appeal and the challenge to the costs award were dismissed.

Following a summary judgment decision dismissing a limitation period defence, the court addressed costs arising from multiple related motions.

The plaintiff sought partial indemnity costs for the successful summary judgment motion and for two additional motions involving the corporate defendant: an unsuccessful motion to set aside noting in default and a successful motion for default judgment.

Applying the principles governing costs under Rule 57.01 of the Rules of Civil Procedure, the court exercised its discretion to award reasonable fixed costs reflecting the work required for each motion.

Costs of $1,000 each were ordered against the corporate defendant for the two ancillary motions, and $9,000 was ordered against the individual defendant for the summary judgment motion.

The defendant brought a motion for security for costs against a corporate plaintiff that admitted it was no longer operating and likely lacked assets in Ontario.

The plaintiff argued that security should not be ordered because the defendant’s counterclaim exceeded the value of the claim and arose from the same facts.

The court held that the existence or size of a counterclaim is not determinative and does not bar security for costs where the statutory grounds under Rule 56.01 are met.

The plaintiff’s principal offered a personal undertaking to cover costs, but the court found insufficient evidence of assets to make the undertaking adequate security.

The court ordered the plaintiff to post $58,000 as security for costs and awarded motion costs to the defendant.

The plaintiff moved for judgment for costs after the defendant accepted a Rule 49 offer to settle shortly before trial.

The court held that an offer providing for payment of $50,000 plus HST "in full and complete satisfaction of the plaintiff’s claim" unambiguously included costs, so rule 49.07(5) did not entitle the plaintiff to additional assessed costs.

The court further held that extrinsic evidence of pre-trial discussions was inadmissible under rule 50.09 and settlement privilege, and declined to dispense with that rule under rule 2.03.

The motion was dismissed.

Following a successful negligent investigation trial, the plaintiffs sought recovery of full expert disbursements and prejudgment interest from the date of the search and arrest.

The court held that while retaining a standard-of-care expert was reasonable, the expert evidence was of little assistance and the recoverable expert fee should therefore be reduced by half.

On prejudgment interest, the court held that the cause of action for negligent investigation was complete only when the criminal proceedings ended in acquittal, and fixed the commencement date accordingly.

The court declined to shorten the prejudgment interest period under s. 130 of the Courts of Justice Act despite delay by prior plaintiffs' counsel.

This was a standalone costs decision following dismissal of a motion to enforce an alleged settlement agreement.

The successful responding party on the underlying motion sought substantial indemnity costs, relying on an offer to settle that required the moving parties to abandon their motion and pay partial indemnity costs.

The court held that, although compromise is not always required for offer-to-settle consequences, the offer here was a pretence rather than a genuine settlement offer and did not warrant elevated costs.

Applying the usual costs criteria, the court awarded $6,800 all inclusive on a partial indemnity basis, payable forthwith.

The defendant, a resident and chief architect of the Ministry of Works and Engineering of Bermuda, brought a motion to dismiss the plaintiffs' conspiracy action against him on the grounds of state immunity and lack of jurisdiction simpliciter.

The plaintiffs, former Bermudian government officials, alleged the defendant conspired with an Ontario architect to plant altered cheques in government files to falsely implicate them in a kickback scheme.

The court found the defendant was not immune from suit due to the commercial activity exception under the State Immunity Act.

However, the court dismissed the action against the moving defendant, concluding that Ontario lacked jurisdiction simpliciter as the plaintiffs failed to establish a real and substantial connection to the province.

The proposed intervenor, an inmate, brought a motion for leave to intervene as an added plaintiff in an action commenced by another inmate against his parole officers.

The proposed intervenor argued that his own separate action against different parole officers involved similar claims of misfeasance in public office and negligence, and that a negative outcome in the plaintiff's case could adversely affect his own.

The court dismissed the motion, finding that the proposed intervenor failed to meet the test under Rule 13.01.

The disputes were purely private, involved different factual matrices and defendants, and the proposed intervenor's involvement would only complicate the proceedings.

The appellant appealed a master's order granting the plaintiff leave to amend her notice of action and statement of claim to add a private clinic as a defendant in a medical malpractice action despite the expiry of the presumptive two‑year limitation period.

The court considered whether pleadings and correspondence from the hospital constituted a triggering event under the discoverability provisions of s. 5 of the Limitations Act, 2002.

The court held that the hospital’s defence and cross‑claim, which alleged that treatment occurred in a private clinic, clearly pointed to another potential defendant and triggered the limitation period.

The plaintiff failed to demonstrate reasonable diligence in identifying the clinic despite available information and prolonged inaction by counsel.

The master erred in law by allowing the amendment while leaving the limitation issue to be determined later.