Stephen Michael Werbowyj

Following a trial in a construction lien and breach of contract action with a divided result, the court determined the costs and prejudgment interest.

The plaintiff was marginally successful but had its costs significantly reduced due to the divided result, an exaggerated lien claim, and a reasonable offer to settle by the defendant.

The plaintiff was awarded $15,000 in partial indemnity costs, including a portion of its expert's fees.

Prejudgment interest was awarded at 3% per annum from the date the primary invoice was due.

The plaintiff contractor brought a construction lien action for unpaid invoices and extras related to a balcony repair project.

The defendant owner counterclaimed for delay costs and defective workmanship, including undersized balconies and damaged railings.

The court dismissed both parties' delay claims due to a lack of expert evidence and failure to comply with contractual notice provisions.

The court awarded the plaintiff its unpaid invoice, holdback interest, and extras for slab replacement, while granting the defendant partial backcharges for the undersized balconies and damaged railings.

Ultimately, the plaintiff was awarded a net judgment of $44,999.19 and a valid lien.

A condominium corporation sought an urgent order for tenants to remove their dangerous dogs after one attacked a resident and her dog.

Despite prior court orders to remove the dogs and muzzle them, the tenants brought them back.

The court found the tenants in breach of multiple orders and determined they were unsuited for communal living, ordering the termination of their tenancy and their eviction from the unit.

The plaintiff in a wrongful dismissal action requested a case conference to schedule examinations for discovery and mediation, citing unresponsiveness from the defendant's counsel.

The court found the request premature and inappropriate, as the plaintiff had not yet delivered a sworn Affidavit of Documents or a Notice of Examination for Discovery.

The court declined to schedule the discoveries, directed the parties to utilize the Rules of Civil Procedure, and awarded $250 in costs to the defendant for the unnecessary case conference.

The defendant, Mario Ignacio Rossi Diaz-Munoz, brought a motion to set aside an ex parte order that authorized the registration of a certificate of pending litigation (CPL) on his condominium unit.

The plaintiff, Lina Mao, had obtained the CPL claiming a constructive trust over the unit.

The court found that the ex parte motion should have been brought on notice and, crucially, that the plaintiff failed to make full and fair disclosure of material facts, including a signed residential tenancy agreement, emails confirming a landlord-tenant relationship, and the true nature of the N12 notice to end tenancy.

Due to this gross lack of disclosure and misrepresentation, the motion was granted, and the certificate of pending litigation was discharged.

This costs endorsement follows an application where the applicant successfully challenged the deceased's will due to lack of testamentary capacity but failed on a claim of undue influence against one of the respondents.

The court determined that success was divided, with approximately two-thirds of the litigation pertaining to testamentary capacity and one-third to undue influence.

The applicant was awarded $30,000 from the Estate for her successful claim, while the respondents were awarded $34,750 from the Estate for their successful defense of the undue influence claim.

The court also considered the respondents' conduct, noting undue delays and the introduction of extensive, low-probative medical records.

The applicant sought a declaration of invalidity for the testator's 2007 will on grounds of lack of testamentary capacity and undue influence.

The court found suspicious circumstances regarding the 2007 will, shifting the burden of proof to the respondents.

It was determined that the testator lacked testamentary capacity when executing the 2007 will, leading to its invalidation.

The 2006 will was consequently restored as the true last will and testament.

The claim of undue influence was not established.

The applicant requested a reconsideration of a Licence Appeal Tribunal decision that denied his claim for income replacement benefits following a motor vehicle accident.

The applicant argued the Tribunal erred by relying on the respondent's surveillance evidence and an assessment by Dr. Goodfield, while failing to properly weigh his own medical evidence.

The Executive Chair dismissed the request, finding that the Tribunal was entitled to weigh the evidence as it saw fit and properly concluded that the applicant's self-reporting to his medical practitioners lacked credibility when contrasted with the surveillance footage.

The applicant sought an income replacement benefit following a motor vehicle accident, claiming he was substantially unable to perform the essential tasks of his pre-accident employment as an automobile garage owner.

The respondent insurer terminated the benefit and relied on surveillance evidence that contradicted the applicant's self-reported limitations.

The adjudicator found the applicant's medical evidence relied heavily on his self-reports, which were undermined by surveillance showing him walking without a cane, driving, and bending without visible difficulty.

The application was dismissed as the applicant failed to prove on a balance of probabilities that he suffered a substantial inability to perform his essential tasks.

The appellants advanced $600,000 to the respondents during negotiations to purchase a 25 per cent interest in the respondents' business.

When the transaction failed, the appellants sued to recover the funds, arguing they were a refundable deposit or loan, while the respondents claimed they were a non-refundable down payment.

The trial judge dismissed the action in very brief reasons.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge mischaracterized the central issue and failed to provide sufficient reasons to permit meaningful appellate review.

Following the dismissal of the corporate defendants' motion to set aside default judgments, the plaintiff and an added party sought costs.

They requested substantial indemnity costs and costs payable personally by the corporate director who authorized the motion.

The court found no reprehensible conduct to justify elevated costs and held it lacked authority to order costs against the director personally without proper notice.

The added party was denied costs as he lacked full party or intervener status.

The plaintiff was awarded partial indemnity costs fixed at $27,838.23 after reductions for excessive preparation time.

The corporate defendants brought a motion to set aside two default judgments obtained by the plaintiff landlord for arrears of rent and damages under a commercial lease.

The motion was brought by a director of the corporate defendants pursuant to leave granted under the Business Corporations Act.

The court applied the five-factor test for setting aside a default judgment and found that the defendants failed to bring the motion promptly after learning of the judgments, failed to provide a plausible explanation for the delay in setting the motion down for a hearing, and failed to establish an arguable defence on the merits.

The motion was dismissed.

Following a five‑day civil trial, the court determined the issue of costs.

The plaintiffs argued that the results of the litigation were mixed and that this should affect the costs award.

The court rejected that characterization, finding the action brought by the plaintiffs was the principal issue and that the cross‑claim was of lesser significance.

Considering the principles in Rule 57 of the Rules of Civil Procedure, including proportionality and the reasonable expectations of the losing party, and having regard to settlement offers, the court fixed costs payable to the defendants.

The plaintiffs commenced an action alleging that $100,000 advanced to the defendants' corporation was a loan repayable on demand.

The defendants argued the payment formed part of an investment agreement under which the plaintiffs would purchase a 25% share of the company and become salaried employee-investors.

The court assessed the credibility of the witnesses and found the defendants' evidence more reliable.

The court concluded the transaction was a share purchase agreement with a non-refundable payment rather than a loan.

The plaintiffs therefore failed to establish their claim on a balance of probabilities.

On a summary judgment motion, the moving party sought equitable subrogation to obtain payment priority over second and third mortgagees after its funds had been used to discharge a first mortgage in a failed mortgage transaction.

The court applied the fairness-focused subrogation framework from appellate authority and held the record was sufficient to decide the issue without a trial under the summary judgment test.

The responding parties failed to adduce admissible evidence showing prejudice, detrimental reliance on registration priority, or a genuine issue requiring trial on alleged negligence and fairness.

The court concluded denial of subrogation would create unjust enrichment because the responding mortgagees would be in a better position than if the first mortgage had not been paid out.

Summary judgment was granted, subrogation relief was ordered, and costs were awarded to the successful moving party.

The applicant was injured in a motor vehicle accident and sought ongoing income replacement benefits (IRBs) beyond the 104-week mark, claiming she was completely unable to work due to a temporomandibular joint disorder (TMD) and chronic pain.

The insurer argued the TMD was caused by pre-existing bruxism and stress, not the accident, and that she was not disabled from working.

The arbitrator found the applicant's testimony credible, concluded the accident materially contributed to her TMD, and determined she met the test for post-104 week IRBs.

Claims for a specific dental assessment cost and a special award were dismissed, but the applicant was awarded her arbitration expenses and interest on overdue benefits.

The appellant mortgagor appealed an order discharging a certificate of pending litigation and dismissing his motion to determine the redemption amount for mortgages on his property.

The property had already been sold by the respondent mortgagee under a power of sale before the motion was heard.

At the hearing, the appellant orally requested that the sale be set aside.

The motion judge refused, noting the purchaser was not a party and the relief was not sought in the notice of motion.

The Court of Appeal dismissed the appeal, affirming that any challenge to the sale required proper pleadings and notice to the purchaser.

The appellant appealed an order discharging a certificate of pending litigation and dismissing a motion to determine the redemption amount for mortgages on a property that had already been sold under power of sale.

The appellant had orally requested the motion judge to set aside the sale.

The Court of Appeal upheld the motion judge's refusal to set aside the sale, noting that the purchaser was not a party to the proceedings, had not been served, and the relief was not sought in the notice of motion.

The appeal was dismissed with costs.