Sean Gordon Steven Carter

Following a consent judgment resolving an action for unpaid nursing home fees, the plaintiff sought costs on a substantial indemnity basis against the deceased's son personally and the estate.

The son had successfully maintained he was not the estate trustee.

The court found mixed success on the summary judgment motion and awarded no costs for it.

For the main action, the court awarded the plaintiff partial indemnity costs against the estate only, finding no reprehensible conduct by the son to warrant substantial indemnity costs or personal liability.

This decision addresses the costs of a dismissed motion brought by the plaintiff, United Mennonite Home for the Aged, to amend its pleadings to name Dan Gordon in his personal capacity.

The defendant, Dan Gordon, was entirely successful in opposing the motion and sought partial indemnity costs.

The court awarded partial indemnity costs to the defendant, reducing the claimed amount by $1,000 due to the defendant's conduct unnecessarily lengthening the proceeding.

The court affirmed that success is a presumptive factor in costs awards and that a charitable organization's limited ability to pay is irrelevant when they initiated the motion.

Following a trial where the plaintiff was awarded damages for unpaid wages against the corporate defendant but her claims against the individual defendants were dismissed, the court determined costs.

The plaintiff sought substantial indemnity costs due to the defendants' failure to admit facts.

The court rejected this, awarding partial indemnity costs of $59,000 plus HST and disbursements against the corporate defendant.

The court declined to award costs to the successful self-represented individual defendants, noting their failure to provide evidence of opportunity costs and the interwoven nature of the claims.

The plaintiff, Suzanne Seepersaud-Singh, brought an action against Pet Social Inc. and its individual directors for unpaid wages, overtime, and vacation pay, claiming she was an employee or, alternatively, had a constructive trust interest as an owner.

She also sought aggravated and punitive damages.

The court found the plaintiff was an employee and manager of Pet Social Inc. from October 2011 to November 2015 and was entitled to unpaid wages, including vacation pay and overtime.

However, the court dismissed her claims of ownership, unjust enrichment (as it was an alternative to unpaid wages), and her request to pierce the corporate veil to hold the directors personally liable, finding no fraud or improper purpose akin to fraud.

Claims for aggravated and punitive damages were also dismissed as she was not terminated in the usual sense.

Following a new trial where the plaintiff was successful in the main action and the third-party claim was dismissed, the court determined the quantum of costs.

The court awarded the plaintiff $25,000 in costs, noting the defendant's unreasonable failure to accept a pre-trial offer to settle.

The successful third party was awarded $15,081.60 in costs.

The court considered the defendant's status as a non-profit organization and its partial success in an earlier appeal when reducing the overall costs claimed.

The Ontario Football Conference (OFC) sued the Brampton Minor Football Association (BMFA) for unpaid fees incurred by a football club called the Bears.

The BMFA denied liability, arguing the Bears was a separate entity, and brought a third-party claim against its former president, Ian Smith, alleging he exceeded his authority in guaranteeing the debt.

The court held that the BMFA was liable for the debt based on the indoor management rule, as the OFC dealt in good faith with Smith and was entitled to assume he had authority.

The court dismissed the third-party claim against Smith, finding no evidence he agreed to be personally liable or breached his fiduciary duties, despite a perceived conflict of interest.

The applicants, former members of the respondent church, sought to declare the termination of their membership null and void, arguing the church failed to follow its by-laws and denied them natural justice by not holding an oral hearing.

The court found that the church's decision-making body was properly constituted and had sufficiently investigated the applicants' disruptive conduct.

The court held that natural justice in this context did not require an oral hearing, and the applicants were given an adequate opportunity to respond to the case against them.

The application was dismissed with costs awarded to the respondent.

This case involves two consolidated applications concerning the estate of Veronica Bishop.

Carolyn Mae Reeves sought interpretation of the will regarding executor appointments and asset vesting, and an accounting from Anne Marie Veronica Inglis, a de facto executor.

Margaret Bishop, the deceased's daughter, sought dependant's relief, an accounting, and the removal of Anne Marie as executor.

The court determined that Anne Marie and Carolyn are the current executors.

It clarified that non-residence assets vested at the deceased's death, while residence proceeds vested upon sale.

The court ordered Anne Marie to provide a formal accounting.

Margaret was found to be a dependant and awarded $725,000 from her trust, inclusive of her share of the residue and dependant's support, subject to Anne Marie's proven expenses.

The decision on Anne Marie's removal as executor was adjourned pending the accounting.

On competing motions in an estate-related application, the court considered whether a late response to a Request to Admit should be accepted and whether email negotiations created an enforceable settlement.

Applying the test for withdrawal of deemed admissions, the court held there were triable issues, a reasonable explanation for the delay, and no non-compensable prejudice.

Applying the summary judgment and settlement formation frameworks, the court found that although the parties had agreement on repayment amounts and timing, they had not agreed on the essential term of security for performance.

The alleged settlement was therefore not binding, and enforcement was moot.

The applicant, a not-for-profit corporation, sought declarations validating the election of its board of directors and the subsequent removal of two former directors.

The respondent former directors challenged their removal, arguing that the board's temporary retirement at the annual general meeting left the corporation without members to re-elect them, and that they were denied procedural fairness.

The court rejected the respondents' literal interpretation of the by-laws to avoid commercial absurdity, finding the board was properly elected.

The court also held that the respondents received adequate notice and were not denied natural justice.

The applicant's application was granted.

The appellant appealed a Small Claims Court judgment ordering it to pay $25,000 in unpaid fees to the respondent.

The appellant argued it was denied procedural fairness because the Deputy Judge failed to read its lengthy written closing submissions before rendering the decision, and that the reasons provided were insufficient.

The Divisional Court agreed on both grounds, finding a clear denial of procedural fairness and that the brief reasons provided were incapable of meaningful appellate review.

The appeal was allowed and a new trial was ordered.

The plaintiff brought a motion to enforce a settlement agreement reached with LawPRO, the professional liability insurer for the self-represented defendant lawyer.

The defendant objected to the settlement, arguing he was entitled to costs for defending the action.

The court found that the LawPRO insurance policy clearly provided the insurer with the contractual right to settle the claim without the insured's consent.

The plaintiff's motion to enforce the settlement was granted, and the defendant's motion to dismiss the action with costs was dismissed.

Genstar Development Partnership appealed a Superior Court decision dismissing its application for specific performance to enforce a repurchase option contained in an Agreement of Purchase and Sale dated August 21, 1998, between Imasco Enterprises Inc. and the Roman Catholic Episcopal Corporation of the Diocese of Hamilton.

The repurchase option allowed the vendor to repurchase property if not developed as a church within 10 years.

The application judge found that Genstar had not established it was a successor to Imasco or an equitable assignee of the repurchase option, and that Genstar's tenders were deficient.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error of fact and upholding the application judge's discretionary decisions regarding the admission of supplementary evidence and conversion to an action.

The applicant, Genstar Development Partnership, sought to repurchase a property from the respondent, The Roman Catholic Episcopal Corporation of the Diocese of Hamilton, based on a right defined in an Agreement of Purchase and Sale.

Genstar claimed to be a successor or equitable assignee of the original vendor (Imasco) and sought specific performance.

The court dismissed the application, finding that Genstar failed to prove its status as a successor due to an incomplete evidentiary record.

As an assignee, Genstar failed to provide the statutory notice required by the Conveyancing and Law of Property Act.

Furthermore, the court found no anticipatory breach by the respondent and determined that Genstar's tenders were deficient due to an incorrect purchase price.

The plaintiff brought a motion to exclude the defendants from her examination for discovery, alleging she would be intimidated by their presence due to a history of domestic abuse by her former spouse, one of the defendants.

The court found the plaintiff's uncontradicted evidence of assault supported her claim of intimidation regarding her former spouse and his brother, who lived in the same residence during the abuse.

The motion was granted in part, excluding the former spouse and his brother, but dismissing the request to exclude a third defendant due to a lack of specific evidence.

The defendants brought a motion to strike paragraph 7 of the plaintiffs' Fresh as Amended Statement of Claim, arguing it improperly pleaded evidence and admissions contrary to Rules 25.06 and 25.11 of the Rules of Civil Procedure.

The Master dismissed the motion, finding that while the paragraph contained elements of evidence, it was material to the overall allegations of negligence, breach of contract, and bad faith, and served as necessary particularization, especially given the allegations of bad faith.

The Master emphasized that the mere inclusion of evidence in a single paragraph of a five-page pleading does not automatically constitute an abuse of process or warrant intervention, particularly when no prejudice to the defendants is demonstrated.

The decision also highlighted the importance of proportionality in litigation, noting that the motion would not materially advance the dispute towards its final resolution.

Costs were awarded to the plaintiffs.

In a construction lien reference, the defendants moved for judgment enforcing a consent to judgment executed by the plaintiff after the plaintiff failed to post agreed security for costs.

The plaintiff had repeatedly breached court orders, including deadlines for undertakings, document production, and service of trial evidence.

The court exercised discretion to enforce the consent to judgment and considered the plaintiff’s repeated non-compliance and apparent inability or unwillingness to prosecute the action.

The motion judge held that these breaches undermined the plaintiff’s bona fide intention to proceed to trial.

Judgment was granted dismissing the plaintiff’s claim, discharging the lien, and discontinuing the defendants’ counterclaim.