Civil Litigation - Plaintiff - SCJ

This endorsement addresses the costs of a dismissed summary judgment motion in a medical malpractice action.

The plaintiffs, having successfully resisted the defendant's motion for summary judgment based on a limitation defence, were entitled to costs on a partial indemnity basis.

The court significantly reduced the plaintiffs' claimed costs of $49,295.22 to $12,000.00, finding the hours billed excessive and disallowing certain disbursements, including the cost of an expert medical report deemed necessary for the main action rather than the specific motion, and unverified copying and computer search fees.

The proposed intervenors, who are 40% shareholders of the respondent corporation, brought a motion for leave to intervene in applications concerning the management and interests of a residential property.

They alleged that a settlement reached by the respondent's representative was done without their required consent under a unanimous shareholders agreement.

The applicants objected based on the indoor management rule.

The court granted the motion to intervene, finding that the proposed intervenors had an interest in the proceeding and could be prejudiced by the outcome.

The plaintiffs and the defendant were 50:50 co-owners of a social media marketing business.

Following a breakdown in their relationship, the defendant locked the plaintiffs out of the business's social media accounts, and the plaintiffs created a copycat account.

The plaintiffs brought a motion for interlocutory mandatory and restrictive injunctions, and the defendant brought a cross-motion for similar relief.

The court ordered the defendant to provide the plaintiffs with the account information and passwords, but otherwise dismissed both the motion and cross-motion, finding that neither party had clean hands and damages would be an adequate remedy.

The defendants brought a motion to enforce an alleged settlement of a professional negligence action.

The plaintiff had offered to settle on a dismissal without costs basis.

The defendants' counsel accepted the offer 'provided that' the plaintiff execute a standard LawPRO release, which contained a confidentiality clause.

The plaintiff refused to sign the release and withdrew the offer.

The court dismissed the motion, finding that the requirement to sign the specific release with a confidentiality clause was an essential term and constituted a counteroffer, meaning no settlement was reached.

The plaintiffs appealed an Associate Judge's order dismissing their motion to strike the defendants' statement of defence for alleged failure to answer undertakings as required by consent orders.

The plaintiffs also sought leave to appeal the $20,000 costs award.

The Superior Court of Justice dismissed the appeal, finding that the Associate Judge made no palpable and overriding errors of fact or errors of law in concluding that the defendants had made reasonable efforts to comply with the undertakings.

Leave to appeal the costs order was also denied as there was no error in principle.

The plaintiff brought a motion to compel the Attorney General of Canada to produce remaining documents from Schedule B of its supplementary affidavit of documents, challenging the AG's claims of solicitor-client and litigation privilege.

The plaintiff also sought an order that the AG's representative reattend discovery at his own expense.

The court reviewed the descriptions of the documents, including those claimed as privileged due to 'family coding' (attachments to privileged documents), and inspected several documents directly.

The court found the claims of privilege were valid and dismissed the motion for production.

The court also declined to order the representative to pay for his reattendance, as there was no finding of misconduct.

Costs of $5,000 were awarded to the AG.

The plaintiffs brought a motion for leave to discontinue a proposed securities class action against the defendant.

Due to increased litigation risks and the lack of an engaged representative plaintiff or class counsel willing to proceed, the plaintiffs sought to abandon the class proceeding.

The court granted the discontinuance under s. 29 of the Class Proceedings Act, 1992, finding no improper purpose and no prejudice to the defendant, who consented and received $130,000 in wasted costs.

The court also approved the form and manner of notice to putative class members.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' derivative claims under section 61 of the Family Law Act.

The primary plaintiff's claim had previously been dismissed following a settlement.

The court held that derivative claims cannot continue once the primary claim is dismissed, applying the doctrine of res judicata.

In the alternative, the court found the action should be dismissed for delay, as the plaintiffs had failed to appoint new counsel or move the action forward.

The motion for summary judgment was granted and the action was dismissed without costs.

The plaintiff appealed a Master's order requiring him to post $20,000 in security for costs.

The plaintiff argued the Master erred in finding he was not ordinarily resident in Ontario and in concluding the order was just.

The Superior Court of Justice dismissed the appeal, finding ample evidence supported the Master's factual conclusion regarding residency, including the plaintiff's limited time in Ontario, lack of assets, and intention to return to Malaysia.

The court also held the Master made no error of law, having properly balanced the plaintiff's access to justice against the defendants' need for protection from an uncollectible costs award.

The plaintiff successfully defeated the defendants' summary judgment motion in a condominium construction defect case.

The plaintiff had previously served an offer to settle the motion on terms more favourable than the outcome.

The court awarded the plaintiff substantial indemnity costs of $42,812.79, finding the time spent reasonable given the complexity and volume of materials.

The court ordered these costs to be set off against $26,879.89 the plaintiff owed the defendants from previous motions, resulting in a net payment of $15,932.90 to the plaintiff.

The plaintiff bank brought a motion for summary judgment against the defendant guarantor for a corporate debt.

The defendant denied signing the guarantee and alternatively pleaded undue influence by her husband.

The court dismissed the motion, finding the bank failed to provide a proper evidential foundation.

The bank relied on affidavits from an employee with no personal knowledge, appending hearsay documents without establishing their admissibility.

The court held there were genuine issues for trial regarding the authenticity of the guarantee and whether the bank took reasonable steps to rebut the presumption of undue influence.

The moving defendants in a solicitor negligence action brought a motion to remove the plaintiff's lawyer from the record and for production of his litigation files.

The defendants argued the lawyer was likely to be a material witness regarding the plaintiff's efforts to mitigate damages on an appeal.

The court granted the motion to remove the lawyer, finding he was likely to be called as a witness and his role as advocate could not be reconciled with his role as a witness.

The motion for production of the litigation files was dismissed as premature and overbroad.

The moving defendants brought a motion to discharge a certificate of pending litigation (CPL) obtained ex parte by the plaintiffs.

The defendants argued the plaintiffs failed to make full and fair disclosure of material facts as required by Rule 39.01(6).

The court reviewed the record and found that the plaintiffs had complied with their disclosure obligations, noting that the alleged misrepresentations were actually triable issues regarding the interpretation of agreements and personal liability.

The motion to discharge the CPL was dismissed.

The defendants were successful on a motion declaring the plaintiff's construction lien expired and sought substantial indemnity costs of $5,930.74.

The court rejected the request for elevated costs, finding no reprehensible conduct by the plaintiff.

The court also noted the defendants improperly brought the initial motion without notice and failed to disclose a relevant consent timetable order.

The court fixed costs at $1,695.00, as suggested by the plaintiff, finding it fair and reasonable.

The defendants brought a motion seeking a declaration that the plaintiff's construction lien had expired, an order discharging the lien, and the return of cash security.

The plaintiff opposed, arguing that a consent timetable order extended the mandatory two-year period under section 37 of the Construction Lien Act (CLA) for setting the action down for trial.

The court found that sections 37 and 46 of the CLA are mandatory and cannot be extended by party agreement or consent order, citing binding appellate authority.

The court also found no evidence of an agreement to extend the time limit.

Consequently, the lien was declared expired, discharged, and the cash security ordered returned, while the action continued as an ordinary breach of contract claim.

The self-represented defendant sought to re-open the issue of costs after his initial written submissions failed to reach the judge.

He claimed costs for time spent attending the seven-day trial and for preparation.

Applying the principles from Fong v. Chan, the court held that a self-represented litigant cannot recover costs for time that any litigant would have to devote to the case, such as attending trial.

The court awarded the defendant $1,330 in costs on a partial indemnity basis for preparation time, travel time, and filing fees.

The plaintiffs were successful in a Rule 26 motion to amend their pleadings and sought costs.

The defendants argued the costs should be reduced due to efforts expended on an anticipated summary judgment motion based on the prior pleadings, which they claimed were costs thrown away.

The court declined to discount the costs on this basis, noting the summary judgment motion might not have succeeded and some preparation might still be useful.

The court fixed the plaintiffs' costs at $14,212.82 on a partial recovery basis.

The defendants brought a motion under r. 21.01(1)(a) of the Rules of Civil Procedure seeking to dismiss the action on the basis that it was statute-barred under the Limitations Act, 2002.

The plaintiff alleged breach of trust under the Construction Lien Act relating to unpaid amounts for labour, materials, and equipment provided on a construction project.

Although the plaintiff had commenced an earlier action for breach of contract concerning the same project, the court held that it was not plain and obvious from the pleadings that the limitation period had expired.

The court found that unresolved factual issues—such as the status of holdback funds and the timing of payments—could affect the limitation analysis.

Accordingly, the motion to strike the claim as statute-barred was dismissed.

The court determined the costs consequences following multiple contested discovery and procedural motions in a commercial dispute.

The defendants sought costs after successfully opposing aspects of the plaintiff’s motion to vary a discovery timetable and after succeeding on their own motion requiring the plaintiff to amend pleadings, deliver a proper affidavit of documents, and answer undertakings.

The court found the defendants substantially successful and ordered the plaintiff to pay costs.

Although the defendants requested substantial indemnity costs based on alleged misconduct, the court held that the plaintiff’s positions were not egregious and awarded costs only on a partial indemnity scale.

Costs were fixed at $15,000 for one group of defendants and $20,000 for another, inclusive of taxes and disbursements.

The defendants sought relief from a non-disclosure agreement and production of documents and financial statements to support a pleaded defence in a debt action.

The responding party and non-parties resisted production on relevance grounds and requested confidentiality protection if disclosure were ordered.

The court held the pleaded defence raised issues making the requested materials relevant and ordered production.

Applying the Sierra Club framework, the court granted a sealing order over the NDA documents and financial statements, limited to preserve openness and subject to reconsideration by the trial judge.