Civil Litigation - Plaintiff - SCJ

Following dismissal of the plaintiff's motion to set aside the Registrar's dismissal order, the court determined costs of the motion and the entire action.

One defendant was awarded full indemnity costs of $50,000 pursuant to a contractual provision in the Standard Charge Terms of the mortgage, which entitled the mortgagee to solicitor-and-client costs in proceedings taken to realize upon the security.

The other defendant was awarded substantial indemnity costs of $35,000 on account of the plaintiff's unsubstantiated allegations of fraud, dishonesty, criminal conduct, and conspiracy, which impugned the defendant's professional reputation as a lawyer and unduly complicated what was essentially a simple mortgage enforcement action.

The plaintiff's failure to participate in costs submissions was also taken into account.

Total costs of $85,000 were ordered payable within 60 days.

The plaintiff, Nanny & Eldercare Services Inc., brought a motion for default judgment against the defendants, Walsh Business & Tax Management Ltd. and Andrew Walsh, for misappropriation of $318,278.18 in funds intended for Canadian Revenue Agency (CRA) remittances.

The defendants failed to file a statement of defence and were noted in default.

The court found the defendants liable for civil fraud and breach of fiduciary duty based on deemed admissions.

The judgment, totaling $441,863.26, was declared to survive any future bankruptcy under section 178(1) of the Bankruptcy and Insolvency Act due to the fraudulent misappropriation of funds while acting in a fiduciary capacity.

The court also awarded $75,000 in punitive damages and full indemnity costs of $29,363.96 due to the egregious and high-handed conduct of the defendants, including their consistent lies to the court and failure to comply with multiple production orders.

The registrar referred this matter to the court under Rule 2.1.01(7) at the request of Bradley Court Limited, the plaintiff (defendant by counterclaim), after the main action was dismissed.

The court reviewed the counterclaim filed by Christopher Tinkasimire, the self-represented defendant (plaintiff by counterclaim), and found it appeared to be frivolous and vexatious.

The court ordered that Mr. Tinkasimire be given notice in Form 2.1A to make submissions as to why the counterclaim should not be dismissed under Rule 2.1.01(1).

Pending the outcome of this written hearing, the counterclaim was stayed pursuant to section 106 of the Courts of Justice Act, and no further filings would be accepted except for Mr. Tinkasimire's submissions.

The plaintiff, Joseph Grimaldi, sued the defendants for wrongful dismissal after being terminated without cause less than five months into his employment as a senior project manager.

Grimaldi claimed entitlement to a payment based on shares in the defendant company as part of his employment contract.

The court interpreted the employment contract, finding that shares would only transfer after five years of service and annual payments were akin to a bonus based on company value.

The court assessed reasonable notice using Bardal factors, finding no inducement or bad faith dismissal.

It determined a reasonable notice period of five months and two weeks.

Grimaldi's claims for annual payment and shares were dismissed due to the notice period not reaching the accrual date and lack of evidence for company valuation.

The claim against the individual defendant, Vince Volpe, was dismissed due to lack of evidence for personal liability.

The plaintiffs brought a motion to enforce a $200,000 settlement under Rule 49.09, arguing they had accepted a 2016 offer from the defendants in 2020.

The court found that while the 2016 letter contained a valid Rule 49 offer that remained open for acceptance, the plaintiffs' purported acceptance in 2020 introduced new terms regarding mutual releases and costs involving parties not represented by the offeror's counsel.

Consequently, the purported acceptance was a counter-offer, and no agreement on essential terms was reached.

The motion to enforce the settlement was dismissed.

Following an application regarding the continuation of a legal non-conforming use, the applicant sought costs of $60,186.30 on a partial indemnity basis.

The respondent argued for each party to bear their own costs due to divided success, or alternatively $20,000.

The court found there was genuinely divided success as the applicant was successful on the declaration but overreached on the injunction, which the respondent successfully resisted.

Applying Rule 57.01, the court awarded the applicant costs fixed at $38,000 all-inclusive.

The moving party (defendant) sought summary judgment dismissing the responding party's (plaintiff's) action for a 50% interest in a residential property, or alternatively, an order for partition and sale.

The parties are sisters.

The moving party is the sole registered owner, but the responding party resides in the property and claims a beneficial interest based on an alleged written agreement.

The court found the alleged agreement to be invalid and likely forged, relying on expert handwriting evidence and factual inconsistencies.

However, the court concluded a trial was necessary to determine if the responding party had any monetary claim to the property's proceeds based on her financial contributions.

The court ordered the property sold, with 50% of the net proceeds paid to the moving party and the remaining 50% paid into court pending trial.

The plaintiff contractor sued the defendant homeowners for unpaid invoices related to a major home renovation.

The defendants moved for summary judgment, arguing the claim was statute-barred under the Limitations Act, 2002.

The plaintiff argued the limitation period was tolled due to mediation and the defendants' enrollment in the Tarion warranty process.

The court dismissed the motion, finding that the complex factual matrix and the interplay between the Tarion process and the construction contract could not be fairly and justly adjudicated on a summary record without a full trial.

The applicants sought costs of $18,000 on a partial indemnity basis, or alternatively no costs, following an application where they were largely successful in being removed as trustees of a Henson trust but unsuccessful in seeking directions to sell a farm.

The respondent sought partial indemnity costs of $30,555.90 payable by the applicants from their shares of the estate.

The court found there was divided success and ordered that no costs be awarded.

The plaintiff appealed a Master's order requiring it to post security for costs.

The plaintiff argued that because its statement of claim included a request for an oppression remedy under the Business Corporations Act, it should be immune from a security for costs order.

The Superior Court of Justice dismissed the appeal, finding that the Master correctly determined the true essence of the action was a claim for unpaid invoices, not oppression, and therefore the security for costs order was appropriate.

The plaintiff moved to amend her statement of claim to include damages for the destruction of her vehicle and associated punitive and aggravated damages.

The defendants opposed, arguing that a punitive damage claim is not stand-alone, there was no independent actionable wrong for property damage, and it would constitute an abuse of process.

The court dismissed the motion, finding that punitive damages are not available for Family Law Act claims in fatal accidents, the property damage claim was statute-barred, and punitive damages require an independent actionable wrong which was absent in this case.

The plaintiff sued the defendants for personal injuries sustained at a party.

The defendant McKellar's insurer appointed counsel to defend him under a reservation of rights, as the claim exceeded policy limits.

McKellar retained personal counsel for his over-limits exposure.

The insurer-appointed counsel negotiated a settlement within policy limits, which the plaintiff accepted.

McKellar's personal counsel objected to the settlement and brought a motion to be appointed co-counsel, seeking to have his legal fees paid from the settlement proceeds.

The court dismissed the motion, finding no divergence of interest between the insurer and the insured, and granted the plaintiff's motion for judgment in accordance with the settlement.

The plaintiffs brought a motion under Rule 7 for approval of a $6,625,000 settlement in a medical negligence action arising from severe birth injuries to the minor plaintiff.

The court approved the overall settlement amount but found the solicitor's proposed contingency fee of over $1.5 million to be unreasonable given the time expended and the results achieved.

The court reduced the legal fees to $1,000,000 and also reduced the proposed allocation of funds to the parents' Family Law Act claims to ensure the minor plaintiff received adequate funds for his lifelong care needs.

The plaintiffs brought a motion for partial summary judgment seeking a declaration that the defendant law firm, Aylesworth LLP, was vicariously liable for the alleged professional negligence of a solicitor, Welsh.

Welsh had a 'counsel' relationship with Aylesworth but operated his own independent practice in Oakville, through which he provided legal services to the plaintiffs regarding a fraudulent investment scheme.

The court dismissed the motion, finding no genuine issue requiring a trial.

The court held that Aylesworth was not vicariously liable because it did not materially enhance the risk of wrongdoing, had no knowledge or control over Welsh's independent files, and did not hold Welsh out as its agent to the plaintiffs.

The plaintiffs challenged the validity of their grandmother's 2004 will and the transfer of her home into joint tenancy with her daughter, the defendant.

The court found that the deceased had testamentary capacity and intended to gift the house to the defendant, rebutting the presumption of a resulting trust.

However, the gift was conditional on the defendant paying $70,000 to each of the plaintiffs.

The court held that the defendant breached her trust obligations by failing to pay the legacies and instead spending the funds for her own benefit.

The defendant was ordered to pay $140,000 to the plaintiffs.

Following settlement of the substantive estate dispute, the parties disagreed over the language of a release, resulting in a motion to resolve the wording and determine costs.

The court found the dispute over wording insignificant and concluded the motion was unnecessary and could have been avoided through cooperation between counsel.

The revised release ultimately satisfied both parties.

Applying Rule 57.01 of the Rules of Civil Procedure and the principles governing costs, the court held the responding party's lack of responsiveness warranted cost consequences.

Partial indemnity costs were awarded to the moving parties but reduced to reflect the straightforward nature of the motion.

Following earlier rulings on a derivative leave motion in estate litigation, the court addressed outstanding procedural directions and the issue of costs for five related motions.

The plaintiffs sought substantial indemnity costs exceeding $144,000 for work connected primarily to the derivative issues.

Applying Rule 57 of the Rules of Civil Procedure and the proportionality principles discussed in Boucher v. Public Accountants, the court held that the requested amount far exceeded the reasonable expectations of the unsuccessful parties for a one‑day motion.

Substantial indemnity costs were denied.

The court fixed costs payable by the defendants jointly and severally at $55,000 inclusive of taxes and interest.

The respondents brought a motion to strike portions of an affidavit filed by the applicant in an application seeking to quash a municipal by-law under the City of Toronto Act.

The court had previously struck portions of an earlier affidavit for containing irrelevant historical allegations and improper innuendo about prior municipal actions.

On the renewed motion, the respondents argued the revised affidavit continued to include irrelevant references to earlier by-laws and municipal initiatives.

The court held that most of the objectionable material had been sufficiently sanitized and could remain as factual background potentially relevant to the issues, including whether the impugned by-law conferred a prohibited bonus.

However, one paragraph expressing the deponent’s concerns about public funds used in 2000 was struck as irrelevant.

Following a guardianship dispute among siblings concerning an elderly parent rendered incapable after a stroke, the applicant sought substantial indemnity costs exceeding $67,000 after partial success in the underlying application.

The court had previously invalidated competing powers of attorney and appointed certain siblings as guardians while restoring the applicant’s access to the parent but refusing to grant her financial control.

In determining costs under s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court considered divided success, the applicant’s unsuccessful attempt to validate earlier powers of attorney, and evidence showing mismanagement of the parent’s finances though dishonesty was not proven.

The respondents’ allegations of fraud were not found to be reprehensible or unreasonable given the evidentiary record.

Balancing fairness and reasonableness, the court concluded that neither side should recover costs.

Following a property dispute between rural neighbours concerning the scope of a registered right-of-way, the successful applicants sought partial indemnity costs after obtaining a declaration confirming they could access their lands at any point along the right-of-way.

The respondents argued there was divided success because the applicants failed to prove a prescriptive right and contended the case was close.

The court rejected the respondents’ characterization of the dispute and found that both parties, particularly the respondents, had taken intransigent positions that prolonged the litigation.

Although the applicants were entitled to costs, the court found the time spent by counsel excessive given the narrow issues and limited attendances.

Costs were reduced and fixed at a lower amount.