Sean F. Dunphy

Following a successful summary judgment motion dismissing the plaintiff’s claim and granting judgment on a counterclaim subject to later assessment of damages, the defendants sought costs on a full indemnity basis.

The court reviewed the defendants’ claimed hours and rates in light of the Civil Procedure Rules Committee grid, the indemnity principle, and the factors under Rule 57.01 and s.131 of the Courts of Justice Act.

The court found the time expended and rates claimed to be reasonable and determined that the litigation conduct of the plaintiff reflected tactical litigation intended to harm a competitor.

While recognizing the discretion to award costs against corporate principals, the court declined to pierce the corporate veil due to insufficient evidentiary foundation.

Costs of $58,878.22 inclusive of HST and disbursements were awarded to the defendants.

Following the dismissal of an urgent anti-suit injunction application, the court determined the appropriate costs award.

The court found that the moving parties had manufactured urgency despite having months of advance notice of the foreign proceeding they sought to enjoin, and had delivered voluminous materials on extremely short notice, impairing the responding parties’ ability to respond.

The court concluded the litigation strategy was tactical and inconsistent with the Rules of Civil Procedure and principles of fairness.

As a result, the court awarded substantial indemnity costs to the successful responding parties.

The court fixed the costs award at $27,500 as fair and reasonable in the circumstances.

The plaintiff, an unpaid trade creditor on a townhouse development project, brought an action against the director of the corporate owner for breach of trust under the Construction Lien Act.

The corporate owner had sold all units but failed to pay the plaintiff in full, and the director subsequently declared personal bankruptcy.

The court dismissed the action, finding that the corporate owner was not a 'contractor' under section 8 of the Act, and therefore no trust funds existed.

Consequently, the director could not be held personally liable under section 13, and there was no evidence of dishonesty to prevent the release of claims through his bankruptcy discharge.

The plaintiff brought a motion for summary judgment seeking a declaration that the termination provisions in his employment agreement were unenforceable and that he was entitled to common law reasonable notice.

The agreement limited termination notice to the minimum required by the Employment Standards Act, 2000 (ESA).

The court rejected arguments that the employer had repudiated the agreement or that the termination clause was void for contracting out of ESA minimum standards or for ambiguity.

Applying contractual interpretation principles and the agreement’s severability clause, the court held the termination provision valid and enforceable.

The motion was dismissed and the ESA-based termination provision governed the notice entitlement.

The third party moved to stay a third party claim on the basis of a forum selection clause in a guarantee agreement governed by German law that designated the courts of Hannover, Germany as the competent forum.

The defendants argued the claim should proceed in Ontario alongside the main action concerning breaches of warranty under a share purchase agreement.

Applying the “strong cause” test from Supreme Court of Canada jurisprudence, the court held that forum selection clauses in international commercial contracts are presumptively enforceable unless exceptional circumstances justify departure.

The defendants failed to demonstrate such circumstances, as the possibility that witnesses and related litigation were located in Ontario was reasonably contemplated when the parties agreed to the clause.

The third party claim was stayed in favour of the Hannover courts.

The plaintiff sought an interlocutory injunction restraining a former employee and his new company from soliciting or servicing any past or present customers.

The plaintiff alleged the employee was a fiduciary who breached duties by leaving on short notice and soliciting clients.

The court held the plaintiff failed to establish a strong prima facie case that the employee was a fiduciary or that any continuing breach of fiduciary duty existed.

Evidence of irreparable harm was speculative and limited, and the balance of convenience favoured permitting lawful competition by the former employee’s start‑up business.

The motion for an interlocutory injunction was dismissed with costs.

A wrongful dismissal action proceeded by summary judgment to determine whether the employee failed to mitigate her damages by declining a new employment offer from a successor firm.

The employee, a long‑term administrative staff member, sought clarification and attempted to negotiate aspects of the proposed contract, including salary, probation, vacation restrictions, and other materially different terms.

The employer argued the refusal to accept an equivalent position defeated mitigation.

The court held that the burden to prove failure to mitigate rests with the employer and was not met because the proposed employment contained materially less favourable terms and the employee acted reasonably in seeking clarification and negotiation.

Summary judgment was granted and damages for reasonable notice were awarded.

The plaintiffs, an Ontario-based equity research company and its founder, published a negative research report about the defendants, Indian corporations.

The defendants commenced a defamation action in India and obtained an anti-suit injunction against the plaintiffs.

The plaintiffs subsequently brought an action in Ontario and sought an urgent interlocutory anti-suit injunction to restrain the defendants from proceeding with their Indian action and from pursuing contempt proceedings against a witness in India.

The court dismissed the motion, finding that while there might be a serious issue to be tried regarding the appropriate forum, the plaintiffs failed to establish irreparable harm and the balance of convenience favoured the status quo due to the plaintiffs' delay in seeking relief.

The plaintiff employee moved to Ottawa for family reasons and sought to telecommute to his Toronto-based job.

The employer agreed only on the condition that the plaintiff sign a new fixed-term employment contract.

When the contract was not renewed, the plaintiff sued for wrongful dismissal, arguing the new contract was void for lack of consideration, duress, lack of agreement, and breach of the Employment Standards Act.

The court dismissed the motion for summary judgment and the action, finding the contract was validly formed with consideration and without duress.

While an early termination clause violated the ESA, it was severable, and the fixed-term provision remained valid.

Multiple insurers disputed their duty to defend an insured chemical delivery company arising from two actions following a chlorine gas release at a public pool.

The insured and one insurer sought declarations compelling other insurers to contribute to defence costs.

Applying the pleadings rule from Monenco and related appellate authorities, the court held that the possibility of coverage under the policies triggered the duty to defend and that extrinsic evidence could not be used to prematurely determine factual causation issues.

The court also rejected an argument that defence cost coverage depended on insurer consent.

Principles of equitable contribution required all insurers with potential coverage to share defence costs.

The appellants appealed a decision of the Deputy Mining and Lands Commissioner denying them permission to build a home on their land due to flood control concerns raised by the Nottawasaga Valley Conservation Authority.

The Divisional Court allowed the appeal, finding that the Tribunal erred in law by presuming a general legislative prohibition on development in floodplains and by elevating safety to a stand-alone head of jurisdiction.

The Court held that the proposed development would have no impact on flood control and directed the approval of the development without conditions.

The applicant, a paralegal, sought judicial review of a Law Society appeal panel decision that set aside findings of professional misconduct against him but directed a new hearing rather than staying the proceedings.

The applicant argued the appeal panel breached procedural fairness and provided insufficient reasons for refusing the stay.

The Divisional Court dismissed the application, finding the appeal panel reasonably concluded that the stay request should be addressed by a new hearing panel with the benefit of a full evidentiary record.

The defendants brought a motion to strike the plaintiff's claims based on the 1624 Statute of Monopolies and the 1897 Ontario Monopolies Act.

The plaintiff, a generic pharmaceutical manufacturer, alleged that the defendants unlawfully delayed its entry into the market by obtaining and asserting an invalid patent.

The defendants argued that the Patent Act and NOC Regulations constituted a complete code and that the Monopolies Acts did not apply.

The court dismissed the motion, finding that it was not plain and obvious that the claims could not succeed, as the law regarding the complete code argument was unsettled and the Monopolies Acts could arguably apply to invalid patents.

Following a successful summary judgment dismissing the plaintiff’s personal injury claim arising from a ski accident, the defendant sought costs of the motion and action.

The plaintiff argued that no costs should be awarded due to his impecuniosity.

The court considered the factors under Rule 57.01 of the Rules of Civil Procedure and s. 131 of the Courts of Justice Act.

While acknowledging the plaintiff’s low income, the court held that impecuniosity alone does not justify avoiding the normal costs consequences, particularly where the plaintiff rejected a settlement offer and attempted to leverage litigation costs during negotiations.

Partial indemnity costs of $63,000 were awarded to the defendant, with half payable immediately and the remainder stayed for 24 months.

Following dismissal of a summary judgment motion brought by certain defendants, the court determined the appropriate costs award.

The plaintiff sought partial indemnity costs for successfully resisting the motion and for related procedural steps including a consent amendment to the statement of claim.

The court applied the discretionary criteria under Rule 57.01 of the Rules of Civil Procedure, emphasizing the significance of the motion to both parties and the reasonableness of the plaintiff’s litigation steps.

While the plaintiff largely succeeded, the court adjusted the claimed amount modestly based on reasonable expectations of the losing parties.

Costs were fixed in favour of the plaintiff against the moving defendants and separately against another defendant for an earlier substituted service motion.

The plaintiffs appealed an order staying their action for failure to pay previous costs awards.

Through this appeal, the self-represented plaintiff sought to set aside a $6,450 costs award made by another judge who had dismissed the plaintiffs' motion for leave to appeal a document production order.

The Divisional Court dismissed the appeal, finding that the previous costs order could not be collaterally attacked through an appeal of the stay order, and that the costs were appropriately awarded to the successful party on the leave motion.

The plaintiffs sought leave to amend their existing action to add a municipality as a defendant years after a fatal motor vehicle accident, arguing that the limitation period under the Trustee Act applied exclusively and could be extended based on special circumstances.

The court held that the Trustee Act limitation period operates in addition to, not in place of, the two‑year limitation period under the Limitations Act, 2002.

Because the limitation period under the Limitations Act had expired, s. 21 barred the plaintiffs from adding the municipality as a party to the proceeding.

In any event, the plaintiffs failed to demonstrate lack of prejudice to the proposed defendant or establish special circumstances justifying relief.

The motion to amend was dismissed with costs.

The defendant brought a motion to set aside a default judgment arising from a claim for unpaid gambling credit advanced by a casino.

The motion relied on an exclusive jurisdiction clause in the underlying credit agreement favouring Singapore courts and on a hearsay assertion that the defendant never received the statement of claim served by substituted service.

The court held that a forum selection clause does not render proceedings void and cannot justify setting aside a judgment absent other grounds, particularly where the defendant delayed and produced no evidence of a defence on the merits.

Applying the factors governing motions to set aside default judgment, the court found no credible explanation for the defendant’s delay, no evidence of non‑service, and no arguable defence.

The interests of justice therefore did not favour granting relief.

The plaintiff commenced an action against her former legal and financial advisors alleging negligence and breach of fiduciary duty in connection with advice provided during negotiation of a marriage contract.

The defendants brought summary judgment motions asserting that the action was statute‑barred under the Limitations Act, 2002 and constituted an abuse of process because the plaintiff had a statutory remedy under s. 56(4) of the Family Law Act to set aside the marriage contract against her spouse.

The court held the plaintiff failed to rebut the presumption of discoverability and knew or ought to have known of the material facts giving rise to her claims more than two years before commencing the action.

The court further held that attempting to obtain, through damages against advisors, relief that should have been pursued through family law proceedings constituted an abuse of process.

The municipality sought an injunction requiring the respondents to obtain a licence as either a taxicab broker or a limousine service company under Chapter 545 of the City of Toronto Municipal Code.

The application alleged that the respondents, through their smartphone platform, accepted requests for transportation services and therefore carried on a regulated business.

The court interpreted the by‑law definitions of “taxicab”, “limousine service company”, and the requirement to “accept calls”, concluding that the automated software platform merely relayed digital requests between passengers and drivers.

Because acceptance occurred only when an individual driver chose to accept a trip request, the respondents themselves did not accept calls or requests within the meaning of the by‑law.

Accordingly, the respondents were not operating as a taxicab broker or limousine service company requiring a municipal licence.