S. Dale Denis

Following the dismissal of the plaintiffs' action on summary judgment, the successful defendants sought costs on a full or substantial indemnity basis, arguing the plaintiffs' claim lacked merit and their summary judgment motion was unreasonable.

The court rejected the request for elevated costs, finding that the plaintiffs' litigation conduct was not reprehensible and that pursuing a weak case does not warrant elevated costs.

The court awarded the defendants costs on a partial indemnity scale, fixing the amount at $290,000 inclusive of fees, disbursements, and HST.

The plaintiffs purchased a helicopter and alleged they entered into a joint venture agreement with the defendants for its operation, based on four documents including a Letter of Intent.

The defendants brought a motion for summary judgment to dismiss the breach of contract claim, arguing the documents were merely an 'agreement to agree'.

The court granted the motion, finding that the documents lacked essential terms and that an Aircraft Management Agreement signed by the parties contained an 'entire agreement' clause that explicitly cancelled all prior representations and agreements.

The claim was dismissed in its entirety.

The applicants (Builder) brought a motion under s. 25(7) of the Building Code Act to stay an Order to Comply (OTC) issued by the Chief Building Official (CBO) of the Town of Midland, pending the outcome of a related Licence Appeal Tribunal (LAT) appeal initiated by the respondent homeowners.

The OTC required the removal and replacement of stucco on a newly built house.

The CBO supported the stay, while the homeowners opposed it.

The court found that the RJR-MacDonald test for a stay did not apply because the court was merely deciding not to exercise its jurisdiction until a later time.

Applying the test for a temporary stay pending another proceeding, the court found substantial overlap of issues, shared factual background, and that a stay would prevent duplication of resources.

The motion for a stay was granted, and the OTC appeal was adjourned pending the LAT appeal outcome.

Following the dismissal of two related civil actions, the successful defendants sought a costs order requiring the plaintiffs’ counsel personally to pay a portion of the trial costs associated with calling 22 witnesses.

The defendants argued that the evidence of those witnesses was inadmissible under the parol evidence rule and that counsel’s decision to call them wasted approximately ten days of trial time.

The court considered Rule 57.07 of the Rules of Civil Procedure and the court’s inherent jurisdiction to award costs against a solicitor.

The judge held that such orders should be made only in rare circumstances and typically require conduct approaching recklessness, abuse of process, or bad faith.

The court concluded that counsel’s decision to lead the evidence was not reckless or abusive and declined to order costs against counsel personally.

In long‑running commercial litigation concerning an alleged oral agreement granting the plaintiffs a 50% interest in a casino development project, the parties brought pre‑trial motions addressing potential conflicts of interest involving defence counsel and issue estoppel relating to alleged spoliation of evidence.

The plaintiffs clarified that their spoliation allegations were directed only at the defendants and not at defence counsel, and that they would not seek to call defence counsel as witnesses.

The court treated these statements as binding admissions and issued declarations preventing the plaintiffs from alleging misconduct, spoliation, or false statements by defence counsel at trial.

Remaining issues, including whether issue estoppel barred certain spoliation arguments, were left for determination by the trial judge.