S.R. Fairley

The plaintiffs, having succeeded in a 19-day trial and obtained judgment for $614,624 plus $30,000 in punitive damages, sought costs on a partial and substantial indemnity basis totaling $531,272.25.

The defendants argued the costs were excessive, particularly for motions resolved by consent and for alleged over-preparation.

The court, applying principles of reasonableness and the objectives of modern costs rules, reduced the partial indemnity costs for consent motions and the substantial indemnity costs for trial preparation, finding over-preparation.

The court awarded total costs of $353,109.53, including fees and disbursements.

The plaintiffs, V.P.M. Marketing and Media Consulting Inc. and Patricia Mitchell, sued the defendants, Stephen Jenne, Barbara Jenne, and BAMS Marketing Inc., for breach of contract, fiduciary duty, and interference with economic relations, seeking damages and punitive damages.

The defendants counterclaimed for unpaid commissions.

The court found Stephen Jenne to be a dependent contractor who owed and breached fiduciary duties and the duty of good faith to VPM by secretly orchestrating the transfer of VPM's clients to his own company, BAMS Marketing Inc., after the death of VPM's founder.

The court awarded the plaintiffs $614,624 in compensatory damages for lost profits and $30,000 in punitive damages.

The defendants' counterclaim was dismissed due to lack of proof, the application of the Limitations Act, and laches/acquiescence.

Following a trial concerning allegations of negligence by municipal officials relating to the requirement of a building permit for a deck constructed at a multi-unit residential property, the plaintiffs were unsuccessful.

The plaintiffs had originally advanced a claim for malicious prosecution but abandoned it shortly before trial, while continuing to seek aggravated and punitive damages based on allegations of improper and dishonest conduct by municipal officials.

The defendant municipality sought substantial indemnity costs, arguing that the plaintiffs pursued speculative and serious allegations without evidentiary foundation and forced extensive preparation, including for claims later withdrawn.

The court found the plaintiffs advanced excessive and unfounded allegations and had rejected several settlement offers from the defendant.

Substantial indemnity costs were therefore justified, though the court reduced the quantum sought and fixed costs at $70,000 inclusive of HST.

The plaintiffs brought a negligence action against a municipality alleging that building officials negligently provided incorrect advice about whether a building permit was required for construction of a residential deck.

After acting on the advice, the plaintiffs were later ordered to obtain a permit and faced enforcement proceedings under the Ontario Building Code Act.

Although a later Divisional Court decision determined that a permit was ultimately unnecessary, the trial court held that the municipal officials had acted reasonably in responding to a brief verbal inquiry and in subsequently enforcing the Building Code after receiving a complaint.

Applying the Anns/Kamloops framework and authorities including Ingles v. Tukaluk Construction Ltd., the court found the officials met the applicable standard of care in administering the Building Code and municipal policy.

The court also held that the claimed damages, including legal costs from prior proceedings and alleged lost income, were not recoverable in this negligence action.

The claim was dismissed.

Following a successful summary judgment motion dismissing the action, the defendant sought costs of both the motion and the underlying proceeding.

The plaintiff argued that costs should be limited because the defendant delayed bringing the summary judgment motion until shortly before trial despite participating in discovery and other litigation steps for years.

The court rejected this argument, finding the defendant acted reasonably in defending the claim and that evolving jurisprudence after amendments to Rule 20 justified bringing the motion after discoveries were completed.

Substantial indemnity costs were refused because the defendant’s settlement offers did not trigger Rule 49 consequences.

Partial indemnity costs were fixed by the court, including fees and disbursements, payable forthwith.

The defendants brought a motion for summary judgment dismissing claims arising from the premature deterioration of pine roof shingles installed on the plaintiff’s home.

The plaintiff alleged breach of contractual warranty, breach of statutory warranties under the Sale of Goods Act, and negligent misrepresentation relating to representations that the roof would last 50 years.

The court found the plaintiff had discovered the alleged defects and the basis of her claims by November 2005, yet did not commence the action until March 2008.

Applying the two‑year limitation period under the Limitations Act, 2002, the court held the claims were statute‑barred.

The court also concluded there was no evidence the retailer provided a contractual warranty or representation guaranteeing the shingles for 50 years.

Following a commercial lease trial between a tenant applicant and a landlord respondent, the court was required to determine the appropriate costs award.

The tenant sought $185,421.51 in post‑trial costs arising from extensive factual analysis required due to the landlord’s inadequate maintenance records and litigation conduct.

The court held that while the tenant had beaten settlement offers and was largely successful, the circumstances did not justify substantial indemnity costs.

Considering the parties’ conduct, the scale of the litigation, and the principles in Rule 57 of the Rules of Civil Procedure, the court fixed costs on an enhanced partial indemnity basis.

Following a prior partial judgment concerning interpretation of a commercial lease, the court addressed the landlord’s accounting for additional rent allegedly representing property management and maintenance expenses.

The lease did not permit standardized management or administrative fees, and the landlord bore the onus of proving reasonable and proper expenses actually incurred.

The court found the landlord’s records unreliable and insufficient, noting undated documents, inconsistent time sheets, duplicated entries, and indications that records were retrospectively created.

Because the landlord failed to demonstrate that the claimed work was performed or that the charges reflected commercially reasonable costs, most management-related claims were disallowed.

The court concluded the tenant had overpaid additional rent over four years and ordered a refund of $128,712.31, with costs submissions to follow.