Scott A. Smith

The applicant was injured in a motor vehicle accident and sought statutory accident benefits.

The respondent denied the claims on the basis that the applicant's injuries fell within the Minor Injury Guideline (MIG).

The applicant argued that pre-existing lower back and psychological conditions prevented her from achieving maximal recovery within the MIG limits.

The Tribunal found insufficient evidence of any pre-existing conditions that would warrant removal from the MIG.

Consequently, the applicant's injuries were deemed minor, and her claims for additional medical benefits and examination costs were dismissed.

Following the settlement and abandonment of an application for judicial review regarding the Crown's duty to consult, the interveners and the respondent Ontario Power Authority sought costs against the applicants.

The Divisional Court dismissed the requests for costs.

The court held that interveners typically do not receive costs and that imposing costs on First Nations in disputes concerning constitutional rights and reconciliation would inappropriately deter such claims.

The court also denied costs to the Ontario Power Authority, noting it played a secondary role and the Crown itself did not seek costs.

This was a costs ruling following a discovery motion in which the defendants were successful.

The plaintiff conceded the defendants' entitlement to costs and did not object to the amount claimed.

The court awarded the defendants their requested costs of $9,212.36, consisting of fees and disbursements found to be fair and reasonable.

This was a costs decision following a successful bifurcation motion by the defendants in a large misfeasance in public office action.

The plaintiff conceded entitlement, hourly rates, and disbursements, but argued that time spent preparing an affidavit was excessive for a procedural motion.

The court declined to second-guess successful counsel's preparation time, finding the affidavit materially helpful and the hours not grossly excessive.

Applying proportionality and reasonableness principles, the court allowed the defendants' bill of costs in full.

On a defence motion in a municipal misfeasance in public office action arising from a federal environmental assessment of a highway project, the court granted leave to conduct discovery of the plaintiff by both written interrogatories and oral examination under Rule 31.02.

The court held that the plaintiff's particulars were largely a regurgitation of the pleadings and that, given the breadth of allegations against numerous individual defendants, written interrogatories would efficiently clarify the specific bad faith and illegality allegations made against each defendant.

The court rejected the plaintiff's fairness objections and accepted that a combined process could reduce duplication, narrow oral discovery, and move the long-delayed action toward trial.

Costs were left for written submissions.

The plaintiff municipality moved to bifurcate a tort action alleging misfeasance in public office arising from a federal environmental assessment order affecting a highway project.

The court held that Rule 6.1.01 permits bifurcation only with the consent of the parties and therefore ousted jurisdiction to order separate liability and damages hearings over objection.

In any event, applying pre-rule bifurcation principles and the Air Canada factors, the court found the liability and damages issues were intertwined because proof of misfeasance required proof of resulting harm.

The motion was dismissed.

Following a successful motion by the interveners for a Kelly v. Canada order in an Aboriginal rights judicial review application, the parties could not agree on costs.

The interveners sought costs in the cause fixed at $13,500, arguing the applicants used hardball tactics by threatening substantial indemnity costs.

The court declined to fix costs, noting that threats of substantial indemnity costs are often empty and did not deter the interveners' counsel.

The court ordered costs in the cause, as the appropriate procedure for Aboriginal rights claims remains a work in progress.

The interveners in a judicial review application concerning the Crown's duty to consult brought a motion for a Kelly v. Canada Order to add 28 Indian Bands as parties.

The applicants opposed the motion, arguing it was offensive to Aboriginal custom and unnecessary as they were the true rights holders.

The court granted the motion, finding that adding the bands as party respondents was necessary to ensure all potential rights holders were before the court and to avoid the risk of multiple proceedings and inconsistent results.

The interveners, H20 Power Limited Partnership and Resolute FP Canada Inc., were granted leave to intervene on restrictive terms.

Both the interveners and the applicants sought costs against each other for the motion.

The court found that success was divided, as neither party achieved their primary position.

Applying the general rule that interveners are not awarded costs and costs are not awarded against them, the court made no order as to costs.

H20 Power Limited Partnership and Resolute FP Canada Inc. brought a motion for leave to intervene as added parties in an application for judicial review concerning the Crown's duty to consult and accommodate the Anishinaabe Nation regarding hydroelectric contracts.

The applicants opposed full intervention, arguing it should be limited to the issue of relief.

The court found that the proposed interveners had a direct interest in the contracts and could provide a useful contribution regarding the operation of the generating stations.

Leave to intervene was granted, subject to conditions limiting their evidence and argument to avoid duplication and delay.

Following dismissal of a motion seeking declarations and partial summary judgment based on res judicata, issue estoppel, and abuse of process in a civil action alleging misfeasance in public office, the court determined costs.

The moving party had sought numerous orders asserting that findings from a prior Federal Court decision conclusively established elements of liability against federal officials involved in an environmental review of a highway project.

The court held the motion was overly complex, repeatedly amended, and entirely unsuccessful.

Applying Rule 57.01 of the Rules of Civil Procedure and principles from appellate authorities, the court concluded that the defendants’ claimed costs were modest given the scale and duration of the proceedings.

Costs of $309,844.95 were awarded to the defendants.

The applicant, a minor whose mother was killed in a motor vehicle accident, sought statutory accident benefits from the insurer.

The parties engaged in settlement discussions and purportedly reached an agreement.

The applicant brought a motion to enforce the settlement, seeking an order for the insurer to pay a lump sum.

The insurer argued there was no binding settlement due to a lack of consensus ad idem regarding the scope of the release.

The arbitrator found he had jurisdiction to determine the existence of a settlement but concluded that no binding agreement was reached due to mutual mistake regarding the scope of the claims and the temporal scope of the settlement.

The motion to enforce the settlement was dismissed.