Civil Litigation - Defendant - SCJ

Following a seven-day trial in which the plaintiff obtained judgment for a trust interest of $560,000 and successfully defended a counterclaim, the court determined the costs of the action.

The court held that neither side established entitlement to enhanced costs consequences under Rule 49 because the offers to settle were inconsistent with the theory advanced at trial or were not more favourable than the result obtained.

The plaintiff was entitled to costs as the successful party on both the claim and counterclaim, but only on a partial indemnity basis.

After reviewing the bills of costs and the reasonable expectations of the unsuccessful party, the court fixed costs at $120,000 inclusive of disbursements and HST.

A second mortgagee sought leave to issue a Writ of Possession and an order that the Residential Tenancies Act, 2006 does not apply to the mortgaged property pursuant to section 5(i) of that Act.

The mortgaged property had multiple occupants sharing kitchen and bathroom facilities.

The court found that the evidence was insufficient to determine whether section 5(i) applied and that notice must be given to the owner and tenants before such a determination could be made, as it would affect their rights under the RTA.

The motion was adjourned pending service on the owner and tenants and further submissions.

Following a 14-day trial where the plaintiff's motor vehicle accident claim was dismissed, the successful defendant sought costs.

The plaintiff argued that his impecuniosity, relying on social assistance, should insulate him from an adverse costs award.

The court rejected this argument, noting the plaintiff had access to after-the-event insurance and that impecuniosity rarely prevents a costs award.

The court awarded the defendant partial indemnity costs, reducing the claimed fees and disbursements to an amount reasonable for an unsuccessful litigant to pay, fixing total costs at $158,000.

Following the dismissal of the plaintiff's action under Rule 21, the defendants sought their costs on a substantial indemnity basis.

The plaintiff had made sweeping, unproven allegations of fraud, theft, and professional misconduct against the defendants.

The court found that these unfounded allegations warranted elevated costs to sanction the plaintiff's reprehensible conduct.

Additionally, two defendants had made offers to settle that the plaintiff failed to accept, further justifying substantial indemnity costs.

The court ordered the plaintiff to pay the defendants' costs totaling $58,474.91.

The midwife and physician defendants moved to vary a previous order requiring the plaintiffs to undergo independent medical examinations involving genetic testing.

The variation sought to change the designated laboratory from GeneDX to Blueprint Genetics and extend the deadline, as GeneDX no longer performed testing for legal cases.

The plaintiffs agreed to the change but requested a condition that the laboratory's reports comply with Rules 33.06 and 53.03(2.1) of the Rules of Civil Procedure.

The court granted the motion to vary the laboratory and deadline, but declined to impose the requested condition, finding that the rules apply to examining health practitioners and experts intended to be called at trial, not to the laboratory conducting the tests.

The applicants' home was destroyed by a flood and deemed a total loss.

Their homeowners' insurance policy with the respondent included a guaranteed rebuilding cost (GRC) endorsement.

The applicants sought a declaration that the GRC coverage included the increased costs of rebuilding in compliance with conservation authority regulations and building codes.

The respondent argued that such costs were excluded by a clause limiting coverage for increased costs due to the operation of any law.

The court held that the GRC endorsement covered the compliance costs and that the exclusion clause, which was restricted to 'any law', did not apply to rules, regulations, or by-laws.

The court also found that applying the exclusion as interpreted by the respondent would virtually nullify the GRC coverage.

The plaintiff moved for summary judgment against the individual guarantors of a commercial mortgage granted by the corporate defendant.

The guarantors argued the corporate defendant was not in default because the plaintiff had executed a postponement of debt agreement in favour of the Business Development Bank of Canada (BDC).

The court found that the clear terms of the postponement agreement meant no amounts were presently owing to the plaintiff until the BDC loan is repaid in 2043.

As the corporate borrower was not in default, the guarantees could not be enforced.

The court granted a 'boomerang' summary judgment dismissing the plaintiff's claim against the guarantors.

The plaintiff, a former employee of Sun Life, sued his former manager for fraudulent misrepresentation, breach of contract, and intentional interference with contractual relations after his employment was terminated.

The defendant manager moved to strike the statement of claim for disclosing no reasonable cause of action.

The court granted the motion, finding that the plaintiff failed to plead that the manager's actions exhibited an identity or interest separate from the employer, which is required to establish personal liability.

The statement of claim was struck in its entirety without leave to amend.

The plaintiffs brought a Rule 21 motion seeking a declaration that Rouge Valley Health System was estopped from denying liability for various statutory and common law causes of action, based on an Order from the Information and Privacy Commissioner (PHIPA Order HO-013).

The court dismissed the motion, exercising its discretion under the doctrines of issue estoppel and abuse of process.

It found that applying issue estoppel would be procedurally and substantively unfair given the magnitude of the class action ($400 million) against a public institution, and the informal, discretionary nature of the administrative tribunal's proceedings, which focused on its privacy law mandate rather than complex civil law.

The court also noted that such an application would be inimical to the due administration of justice by discouraging settlements with the Commissioner.

The plaintiff brought a motion to find the defendants, Marcel and Jean-Georges Bisson, in civil contempt for deliberately refusing to sign Full and Final Releases as ordered by a previous judgment.

Applying the three-part test from Carey v. Laiken, the court found beyond a reasonable doubt that the order was clear, the defendants had actual knowledge of it, and they intentionally failed to comply.

The defendants were found in contempt, fined $20,000, and the releases were deemed signed by court order.

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

The applicant condominium corporation sought an order to evict a tenant and her disabled son due to ongoing noise complaints and nuisance, or alternatively an order for compliance with condominium rules.

The unit owner brought a separate application to vacate a lien for legal costs registered against the unit.

The court found the tenant had breached the rules but held that eviction was too draconian a remedy.

The court ordered the tenant to comply with the rules and the owner to take reasonable steps to ensure compliance.

The court upheld the lien and awarded partial costs to the condominium corporation, noting both parties had adopted overly confrontational positions.

Following a trial where the plaintiff was awarded $225,000 in damages arising from an asset purchase agreement, the court determined the issue of costs.

The plaintiff sought $172,362 in costs on a substantial indemnity basis, relying on a Rule 49 offer to settle.

The court found the offer did not comply with Rule 49 as it was made only three days before trial.

The court awarded the plaintiff partial indemnity costs, fixing the amount at $80,000 after finding the hours claimed by the plaintiff's counsel were excessive compared to defence counsel.

A commercial tenant sought declarations that a landlord’s distraint against its goods for alleged rent arrears was unlawful and that the landlord had forfeited the lease.

The landlord had changed the locks to the premises while simultaneously posting a distress notice demanding payment of a substantially inflated sum that included amounts not payable under the lease.

The court held that a landlord must choose between the mutually exclusive remedies of forfeiture and distress and that the landlord’s conduct effectively excluded the tenant from the premises.

By locking the tenant out and conditioning re-entry on payment of improper charges, the landlord forfeited the lease and the subsequent distress was unlawful.

Declarations were granted and a trial of damages was directed.

The defendant mortgagee brought a motion to strike the plaintiffs’ trial record, set aside a registrar’s order that had reinstated the action, and reinstate a dismissal for delay under Rule 48.14 of the Rules of Civil Procedure.

The action concerned a mortgage dispute following default, enforcement proceedings, and a power of sale that generated surplus proceeds.

The court found that the statement of claim had largely been struck in earlier proceedings and had never been properly amended, meaning pleadings had not closed and the action could not be set down for trial.

The registrar’s dismissal for delay was therefore properly issued, and the subsequent setting aside of that dismissal without notice to the defendant was improper.

The court reinstated the dismissal, struck the trial record, removed the matter from the trial list, and awarded the defendant full indemnity costs pursuant to the mortgage terms.

The plaintiff moved to set aside a registrar’s order dismissing the action as abandoned.

The dismissal occurred after a notice of intent to defend was served but not filed, and the plaintiff had not received notice from the court that the action would be dismissed.

Applying the principles governing restoration of dismissed actions, the court found the delay negligible and the motion brought promptly, with no demonstrated prejudice to the defendants.

The court reinstated the action but imposed terms validating service on one defendant and providing time for that defendant to bring a motion to strike or to defend.

Issues raised about duplicative proceedings and cause of action estoppel were left to be determined on a future motion.

The defendant brought a motion for summary judgment seeking dismissal of a defamation action arising from statements that the plaintiff had quit his employment.

The plaintiff had previously litigated wrongful dismissal and defamation claims in British Columbia concerning the same employment termination, where the court held that describing the plaintiff as having quit was not defamatory.

The Ontario action alleged two further communications repeating that characterization to a prospective employer and to Service Canada.

The court held that the essential issue had already been conclusively determined and that the doctrine of issue estoppel barred relitigation.

As the earlier decision determined that the statement was not defamatory, any repetition of it could not found a new claim.

Following a trial determining beneficial ownership of a former matrimonial home, the successful applicant sought costs on a substantial indemnity basis exceeding $35,000.

The respondent argued that no costs should be awarded due to alleged unfairness, financial disparity, litigation conduct, and the nature of the applicant’s settlement offer.

The court rejected most of the respondent’s submissions and confirmed the applicant’s entitlement to costs as the largely successful party.

However, because the applicant did not fully achieve the terms of his settlement offer, the court limited recovery to partial indemnity costs.

After adjusting hourly rates and reducing excessive preparation time, the court fixed costs at $19,000 plus disbursements and taxes.

The defendant brought a motion for summary judgment dismissing a negligence action arising from injuries sustained when a sign fell and knocked the plaintiff from a ladder while he was assisting in removing it from a building.

The plaintiff alleged the defendant breached its duty under the Nova Scotia Occupiers Liability Act to ensure that he was reasonably safe while on the premises.

The court held that the evidentiary record was incomplete and that the motion was premature, emphasizing the need for production and discovery to permit a full appreciation of the issues.

Applying the principles from Combined Air Mechanical Services Inc. v. Flesch, the court declined to determine the claim summarily.

The motion was dismissed without prejudice to being renewed after discovery.

A casino operator sought summary judgment against an Ontario resident for unpaid gambling credit advanced through casino markers.

The defendant argued Ontario was not the appropriate forum and claimed he did not remember signing the credit documents due to intoxication.

The court held Ontario had jurisdiction because the defendant resided and held assets in Ontario and had attorned to the jurisdiction through his pleadings.

Applying Rule 20 of the Rules of Civil Procedure, the court found no genuine issue requiring a trial, noting the documentary evidence, dishonoured cheques, and post‑transaction communications acknowledging the debt.

Summary judgment was granted for the outstanding balance plus contractual interest.

A mortgagee sought costs following motions in a mortgage enforcement action where it obtained summary judgment against the mortgagors.

The mortgagors had unsuccessfully alleged that the property was sold for less than fair market value and were only notionally successful on a venue motion with no practical effect after summary judgment was granted.

The mortgage required the mortgagors to indemnify the mortgagee for enforcement costs on a full indemnity basis.

The court found the mortgagee’s costs outline reasonable and awarded fees and disbursements on a full indemnity scale.