Scott E. Hamilton

This motion addressed the conflict between the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) and the Rules of Civil Procedure regarding the disclosure of personal information in litigation.

The plaintiff sought to compel the Town of Oakville to disclose the last known addresses of former municipal employees relevant to the case, which the Town refused, citing MFIPPA.

The court ruled that a litigant may obtain a court order for relevant disclosure without first fully exhausting the MFIPPA statutory appeal process, as the Rules of Civil Procedure, particularly the deemed undertaking rule, provide sufficient privacy safeguards.

This appeal concerned an actionable encroachment on an easement.

The appellants built a swimming pool and amenities over a ten-foot strip of land subject to an easement held by the respondents, which prohibited the erection of any building or structure.

The application judge found an actionable encroachment and ordered removal.

The appellants appealed, arguing the easement was not intended to prohibit such structures, that the 'substantial interference' test was misapplied, and that the easement was abandoned or proprietary estoppel applied.

The Court of Appeal dismissed the appeal, affirming that the express prohibition in the easement constituted an actionable encroachment, and rejected arguments of abandonment or proprietary estoppel.

This endorsement addresses the issue of costs following a successful application by the Town of Oakville and Oakville Hydro Electricity Distribution Inc. (Applicants) for a declaration that the Respondents' pool amenities encroached upon a hydro easement.

The Applicants sought costs on a partial indemnity scale totaling $77,782.87.

The Respondents argued for a reduction to a maximum of $50,000.

The court awarded the Applicants $50,000 in costs, finding a reduction warranted due to the Applicants' partial success on the underlying application (only one of two bases for relief was granted) and their unreasonable refusal to consent to legitimate adjournment requests.

The applicants sought a declaration and injunction compelling the respondents to remove pool amenities encroaching on a hydro easement.

The court found that the easement explicitly prohibited the erection of any building or structure, regardless of whether it caused substantial interference.

The respondents' arguments of proprietary estoppel and lack of substantial interference were rejected.

The application was granted, ordering the removal of the amenities and remediation of the easement.

Following the dismissal of the plaintiff's action as an abuse of process and a vexatious proceeding, the court determined the costs payable to the successful defendants.

The court considered the plaintiff's unreasonable conduct and the time-intensive nature of the motion.

Costs were fixed at $7,500 inclusive of disbursements and HST, payable within 30 days.

The defendants brought a motion to strike the plaintiffs' statement of claim, arguing it disclosed no reasonable cause of action and was an abuse of process due to a prior default judgment.

The court declined to strike the entire action, finding the prior action involved a sublease while the current action involved the purchase and sale of a business.

However, the court struck several claims, including inducing breach of contract against a corporate director without leave to amend, and claims for unjust enrichment and conspiracy with leave to amend.

The moving parties were awarded partial indemnity costs.

Following a summary judgment dismissing the plaintiffs’ claim against a municipal defendant, the court addressed costs.

The defendant municipality sought costs of the entire action on a partial indemnity basis, arguing it had succeeded in having the claim against it dismissed.

The plaintiffs argued that awarding full action costs was premature because the municipality remained involved through a cross-claim.

The court agreed that it was inappropriate to assess all action costs before trial but held that reasonable partial indemnity costs for the summary judgment motion were warranted.

The court reduced the requested preparation and attendance costs and awarded a portion of the claimed disbursements attributable to the motion.

The defendant City of Brampton brought a motion for summary judgment to dismiss the plaintiffs' personal injury claim arising from a slip and fall on an icy municipal sidewalk.

The City argued the claim was statute-barred because the plaintiffs failed to provide written notice within 10 days of the injury, as required by s. 44(10) of the Municipal Act.

The plaintiffs provided notice 18 months later.

The court found that the plaintiffs failed to establish a reasonable excuse for the delay under s. 44(12), as the injured plaintiff knew the cause of his fall and the responsible party on the day of the incident, and his injuries were apparent within months.

The court also found the plaintiffs failed to prove the City was not prejudiced by the delay.

The motion for summary judgment was granted and the claim against the City was dismissed.

Following a discovery motion in which the plaintiffs successfully obtained production of documents previously refused by the municipal defendant, the court determined the appropriate costs award.

The plaintiffs sought more than $15,000 on a scale slightly above partial indemnity, while the defendant argued that no costs should be awarded or that costs should be limited to a much smaller amount.

Applying s. 131 of the Courts of Justice Act and Rules 57.01 and 57.03 of the Rules of Civil Procedure, the court held that the successful party was generally entitled to costs but that the amounts claimed were excessive and that elevated costs were not justified absent reprehensible conduct.

Considering proportionality and the plaintiffs’ lack of complete success, the court fixed partial indemnity costs at $7,500 inclusive of HST and disbursements.

The plaintiffs brought a motion to compel the municipal defendant to answer undertakings and produce documents relating to expert evidence arising from environmental contamination litigation.

The court considered Rules 31.06 and 53.03 of the Rules of Civil Procedure governing disclosure of expert findings, opinions, and materials reviewed by experts.

Because the defendant intended to call its environmental expert at trial, the court held that the expert’s memoranda, email communications, and materials reviewed by the expert were producible to permit the opposing party to test the opinion evidence.

Although the defendant had undertaken not to call a valuation expert, a partial disclosure of a letter from that expert was ordered because it had been reviewed and used as instructions for the testifying expert.

The motion was granted with production orders and compliance deadlines.