Stephen Cavanagh

This is a costs endorsement following a six-day trial where the defendants were entirely successful.

The court applied the usual rules for costs awards, including partial indemnity basis (60% of actual costs), proportionality, and recovery of disbursements.

The defendants claimed $131,126.00 plus HST and disbursements.

The plaintiffs argued for a maximum of $50,000.

The court awarded the defendants $65,000.00 plus HST and most disbursements, disallowing certain unexplained travel expenses.

Costs were made payable by the plaintiff Ben Kutner to the defendants within 30 days.

The appellant appealed the dismissal of its defamation action following a Rule 21 motion.

The motion judge had held that the appellant's notices did not comply with s. 5(1) of the Libel and Slander Act because they failed to sufficiently specify the matters complained of.

The Court of Appeal allowed the appeal, finding that the notices clearly specified the statements and inferences from the internet broadcast and newspaper article, and were sufficiently specific to allow the respondents to know the essence of the complaint and decide how to respond.

The plaintiffs brought a motion to amend their statement of claim to add allegations that the defendants’ litigation conduct, including alleged delay in producing privileged documents, constituted a breach of fiduciary duty and warranted punitive damages.

The court applied Rule 26.01 of the Rules of Civil Procedure and the test for allowing amendments, including whether the proposed claims were tenable at law.

The court held that no fiduciary duty exists between opposing parties during the conduct of litigation in the adversarial system and that litigation conduct alone cannot constitute an independent actionable wrong supporting punitive damages.

Alleged delay in document production is addressed through costs, not substantive claims.

The proposed amendments were therefore not legally tenable and were refused, though certain limited trial questions concerning knowledge of competing intellectual property claims were permitted.

The defendants brought a Rule 21 motion seeking determination of questions of law in a defamation action arising from a television broadcast and newspaper article alleging the plaintiff union supported a terrorist organization.

The defendants argued the plaintiff failed to provide sufficient notice under s. 5(1) of the Libel and Slander Act and also challenged the legal capacity of an unincorporated trade union to sue in defamation.

The court held that the written notices provided by the plaintiff did not sufficiently specify the matter complained of as required by the statute, despite the plaintiff later identifying specific impugned words in the statement of claim.

Because proper notice is a mandatory precondition to bringing a libel action, the failure constituted a complete bar to the proceeding.

The court further commented that the legal capacity of trade unions to sue in defamation remains unsettled but declined to determine that issue on a Rule 21 motion.

The plaintiff appealed a Master's order limiting the cross-examination of the defendant's counsel on his affidavit filed in an undertakings and refusals motion.

The plaintiff argued that by filing the affidavit, the defendant's counsel gave evidence on substantive issues, thereby implicitly waiving solicitor-client and litigation privilege.

The Superior Court of Justice dismissed the appeal, finding that the Master applied the correct legal test and made no palpable and overriding error in concluding that the affidavit did not constitute a waiver of privilege.

The appellants appealed a decision of the Licence Appeal Tribunal regarding the interpretation of s. 28(1) of Regulation 470 to the Funeral Directors and Establishments Act, which requires a funeral establishment's corporate name to be 'clearly disclosed to the public' on business signs.

The Tribunal had found that a large discrepancy in font size between the business name and the corporate name meant the corporate name was not clearly disclosed.

The Divisional Court allowed the appeal, holding that the Tribunal erred in law by focusing on relative font size rather than whether the corporate name was readable from the vantage point from which the sign was intended to be read.

The matter was remitted to the Complaints Committee for reconsideration.

The applicant was injured in a motor vehicle accident and received weekly income benefits before returning to full-time work as a campus police officer.

She continued to miss occasional days of work due to ongoing symptoms and claimed income benefits for those days, as well as for a three-week period following a physiotherapy program.

The arbitrator found that while the applicant was substantially unable to perform the essential tasks of her employment on the occasional days missed, the deduction of 80 percent of her post-accident income under section 15 of the Schedule reduced the payable benefit to zero.

The arbitrator also found the applicant was not disabled during the three-week period in December 1997 and dismissed the claim for a special award, concluding the insurer had not acted unreasonably.