Sean F. Dunphy

This costs endorsement followed a motion where success was divided.

The court had previously allowed in part and dismissed in part a motion for judgment brought by the defendant/plaintiff by counterclaim.

Specifically, the motion to dismiss the "main action" was allowed, but the counterclaim was dismissed against TCB Realty Ltd., and the motion for judgment was dismissed against the individual defendants by counterclaim.

Given this divided success, where each side had substantive claims entirely dismissed against them and achieved vindication on material parts of their positions, the court determined it was not appropriate to award costs to either side.

The defendants successfully defended a summary judgment motion in a simplified procedure action where the plaintiffs claimed approximately $50,000.

The court dismissed the action and requested written submissions on costs.

The defendants sought costs on a partial and substantial indemnity basis, citing an unaccepted settlement offer and the plaintiffs' pursuit of the corporate director personally.

The plaintiffs argued for reduced costs due to the defendants' late production of documents and unnecessary examinations.

The court awarded the defendants $22,500 in costs, applying a hybrid scale that credited the settlement offer but made downward adjustments for both parties' cost-inefficient conduct.

Following a trial where the defendant was successful, the court received submissions on costs.

The defendant sought partial indemnity costs of $44,390.72.

The plaintiff argued the amount was disproportionate given the amount at issue was approximately $53,000.

Balancing the principles of indemnity, proportionality, and the reasonable expectations of the unsuccessful party, the court fixed costs payable to the defendant at $24,000 all inclusive.

Following a summary judgment ruling enforcing a settlement agreement, the parties disputed the calculation of property taxes and the applicable interest rate on the outstanding amount.

The court held that 'property tax' includes water and garbage charges.

The court further held that the original mortgage contract interest rate of 6.45% applies to the outstanding settlement amount, rather than the Courts of Justice Act rates, as the settlement compromised claims under the mortgage but did not intend to provide an interest-free period upon default.

The plaintiff bank brought a motion for partial summary judgment seeking a declaration that losses it sustained due to an employee's participation in a Ponzi scheme constituted a 'direct financial loss' under its fidelity bond.

The bank had settled multiple third-party claims after victims transferred funds to the bank based on fraudulent representations by the bank's employee.

The court held that the bank received the funds subject to a constructive trust, and suffered a direct financial loss when those funds were credited to unrestricted accounts controlled by the fraudster.

The court found this narrow issue of policy interpretation appropriate for partial summary judgment and granted the declaration.

The respondents sought costs after the applicants abandoned the remaining nuisance claim in a neighbour dispute.

The court had previously ruled in favour of the respondents on an adverse possession issue, which the applicants unsuccessfully appealed.

The applicants abandoned the nuisance claim for economic reasons and argued each party should bear their own costs.

The court declined to award costs to the respondents, finding that the applicants' claims were not frivolous and that a costs award would only aggravate the ongoing dispute between the neighbours.

Following a decision on the merits in two related applications, the successful applicant sought costs.

The respondent requested a reconsideration of the costs award and argued for no costs or a nominal amount.

The court declined to reconsider the entitlement to costs, noting that costs are always in play and should be addressed during the hearing.

The court considered the applicant's non-compliant offers to settle and the excessive time spent on examinations by both parties.

The court awarded the applicant partial indemnity costs of $62,510.85, inclusive of disbursements and HST, after making a reduction for unnecessary examination time.

The plaintiff insurance broker sued the defendant insurer for $91,042 based on an erroneous preliminary profit share calculation provided by the defendant.

The actual accrued profit share was $2,402.

The plaintiff argued the erroneous calculation constituted a separate contract or a contract of insurance under the Insurance Act.

The court dismissed the action, finding the letter was not a stand-alone contract, did not constitute insurance, and the erroneous schedule did not bind the defendant to pay the mistakenly calculated amount.

A case conference endorsement determining the scheduling and order of three pending motions in two related wrongful dismissal actions arising from mass lay-offs following the bankruptcy of several meat packing companies.

The court directed that the defendants' jurisdiction motion (the 'Weber' motion) and limitations motion be heard together first, prior to the plaintiffs' motion for class certification.

The moving party defendants, an expert witness and his appraisal company, sought summary judgment to dismiss a professional negligence claim brought by their former clients, the plaintiffs.

The plaintiffs alleged the expert breached his duties during a prior trial, resulting in an unfavourable valuation of their shares.

The court granted summary judgment dismissing the negligence claim, holding that the absolute immunity afforded to witnesses extends to a party's own expert witness.

However, the court declined to grant summary judgment on the moving parties' counterclaim for unpaid invoices, finding that the plaintiffs' allegations of breach of contract and negligence raised triable issues that could serve as a defence to the claim for fees.

The plaintiff in a defamation action brought a preliminary motion prior to the hearing of the defendants' anti-SLAPP motion under s. 137.1 of the Courts of Justice Act.

The plaintiff sought to record oral arguments, compel answers to cross-examination refusals, amend the statement of claim to add a corporate plaintiff, and file late affidavit evidence.

The court dismissed the motion in its entirety, finding that the proposed amendments would frustrate the purpose of the anti-SLAPP legislation and that there was no reasonable explanation for the late filing of evidence.

The moving party (defendant) brought a motion under s. 137.1 of the Courts of Justice Act to dismiss the responding party's (plaintiff's) defamation action.

The action arose from an email sent by the moving party to a restricted listserv of plaintiff-side personal injury lawyers, which criticized the responding party's conduct as a medical expert in preparing executive summary reports for insurance companies.

The responding party also challenged the constitutionality of s. 137.1 under ss. 7 and 15(1) of the Charter.

The court found that the email related to a matter of public interest.

The court held that the responding party failed to show there were grounds to believe the moving party had no valid defence, as the defences of substantial justification and qualified privilege were reasonably likely to succeed.

Furthermore, the public interest in protecting the expression outweighed the public interest in permitting the proceeding to continue.

The court also dismissed the Charter challenges, finding that reputation is not a free-standing right under s. 7 and that potential defamation plaintiffs do not constitute an analogous group under s. 15(1).

The motion was granted and the action was dismissed.

The applicant mortgagee and respondent condominium corporation disputed priority over the proceeds of a condominium unit sold under power of sale.

The corporation claimed a priority lien for common expenses, which included court-ordered costs against the unit owner under s. 134(5) of the Condominium Act.

The court held that the default giving rise to the lien occurred when the costs were due under the court order, not when the corporation demanded them or added them to its ledger.

Because the corporation registered its lien more than three months after this default, the lien expired under s. 85(2).

The mortgagee was granted priority over the sale proceeds.

The parties appeared for a case conference to determine the procedure for a mini-trial directed by a previous endorsement.

The court ordered specific guidelines for the examination and cross-examination of witnesses, including out-of-court examination with translation for an elderly witness, viva voce testimony from a transaction lawyer, and the proper production of a family doctor's expert report.

A two-day hearing was scheduled.

The plaintiff's house was severely damaged by fire shortly after he entered into a settlement agreement with his mortgagee.

The mortgagee had previously placed fire insurance on the property and charged the premiums to the plaintiff.

Following the fire, the mortgagee refused to process an insurance claim, arguing it suffered no direct loss until it took possession and realized on its security.

The defendants brought summary judgment motions to dismiss the plaintiff's claim for damages.

The court dismissed the mortgagee's motion, finding it had a duty of good faith to process the claim and the plaintiff had standing to enforce this obligation.

The court granted the mortgagee's counterclaim for possession and enforcement of the settlement agreement, directing a process to resolve the outstanding insurance and valuation issues.

The defendant sought costs after being partially successful on a motion to strike the plaintiffs' claim.

The court found that while the defendant succeeded in obtaining a stay and requiring the plaintiffs to add her to an existing action, she had over-reached by seeking a complete dismissal of the claim.

Because the defendant's unsuccessful arguments consumed significant time and posed an existential threat to the plaintiffs' case, the court concluded that success was truly divided.

Consequently, the court ordered each party to bear their own costs of the motion.

The defendants, having successfully moved to dismiss the plaintiff's action under Rule 21, sought costs of over $35,000 on a partial indemnity basis.

The plaintiff argued the amount was excessive for a straightforward motion and pointed to his own costs outline of approximately $6,600.

The court found that while the Department of Justice lawyers were entitled to costs, the hours claimed were disproportionate to the narrow legal question involved.

The court awarded the defendants $15,000 in all-inclusive partial indemnity costs, balancing the moving party's burden with the reasonable expectations of the unsuccessful party.

The defendants brought a motion under s. 137.1 of the Courts of Justice Act to dismiss the plaintiff's defamation action arising from a blog post made during a federal election.

The blog post criticized a political candidate's association with the plaintiff corporation.

The court found the expression related to a matter of public interest.

The plaintiff failed to establish that its claim had substantial merit, that the defendants had no valid defence, or that the harm suffered outweighed the public interest in protecting the expression.

The action was dismissed with full indemnity costs awarded to the defendants.

A case conference was held regarding an application by a purchaser for the return of a $430,000 deposit from a failed real estate auction, and a related action by the auctioneer for its commission.

The court ordered a consent interpleader allowing the auctioneer's counsel to pay the deposit into court.

The court also set a timetable for a cross-application by the auctioneer and stayed the related action pending the outcome of the applications.

The plaintiffs brought a motion for summary judgment claiming the return of alleged overpayments and late penalties for delays in a commercial office renovation project.

The court dismissed the motion and the action, finding that the corporate plaintiff and individual defendant were improperly added as parties.

The court held that the delay penalty clause did not apply to the specific items claimed, and the delays were not the sole fault of the defendant.

The claim for overpayment was also dismissed as the plaintiff failed to establish that any payments were made under a mistake of fact or law.