Stephen Thomas Brogden

This endorsement addresses costs and pre-judgment interest following a trial where the plaintiff was awarded $15,000 in non-pecuniary general damages and an OHIP subrogated claim for injuries sustained from a fall on an uneven sidewalk.

Despite the judgment amount falling within the Small Claims Court jurisdiction, the court declined to deprive the plaintiff of costs, citing the defendant's unreasonable litigation conduct and lack of meaningful settlement attempts.

The court fixed the plaintiff's costs at $15,000, inclusive of disbursements and HST, and pre-judgment interest on non-pecuniary damages at $1,350 (approximately 2.5%), noting both parties' disproportionate expenditure on the case.

The third party, Onward, moved to permanently stay the main action based on a release containing a no-claims-over clause that the plaintiff had signed in its favour.

The defendant, Enercare, had commenced a third-party claim against Onward for contribution and indemnity.

The court dismissed the motion, finding that the plaintiff had expressly waived its right to recover any damages attributable to Onward's fault in its amended statement of claim.

Applying the principle from Taylor v. Canada, the court held that this waiver eliminated any viable claim-over by Enercare against Onward, meaning the main action was not a prohibited proceeding under the release.

The plaintiff sued the defendant municipality after slipping and falling on an icy city sidewalk.

The city had no policy to call in maintenance operators before their regular 7:00 a.m. start time to address icy conditions caused by overnight thaw-freeze cycles, despite having a policy to do so for 8 cm of snow.

The court found the city's policy unreasonable and held the city grossly negligent under the Municipal Act, 2001.

However, the plaintiff was found 50% contributorily negligent for wearing running shoes instead of winter boots and failing to walk around the visible ice.

The plaintiff brought an action for damages for injuries sustained from a trip and fall on a city-owned sidewalk.

The parties settled on damages quantum, leaving liability as the sole issue.

The court applied a two-step analysis under s. 44 of the Municipal Act, 2001, first assessing if the sidewalk was in a reasonable state of repair, considering its character and location.

The court found the sidewalk's discontinuity (11-19 mm, 16 mm at the point of fall) was within the City's adopted Provincial Minimum Maintenance Standards (20 mm maximum) for a small residential street, thus meeting a reasonable standard of repair.

The plaintiff failed to prove the City's non-repair.

Although the action was dismissed, the court also found the plaintiff 20% contributorily negligent for not paying reasonable attention to the sidewalk.

Following the dismissal of the plaintiff's action for well contamination, the court determined costs.

The plaintiff conceded liability for the defendant's partial indemnity costs but disputed liability for the third parties' costs.

Applying the principles from Guarantee Co. of North America, the court found it fair to order the plaintiff to pay the successful third parties' costs, as the main issue litigated was between the plaintiff and the third party who applied the biosolids.

The court fixed total costs at $70,000, apportioned among the defendant and two third parties, noting that the costs claimed were disproportionate to the modest nature of the case and criticizing the parties' failure to make reasonable settlement offers.

The plaintiff claimed her water well was contaminated by municipal sewage waste (biosolids) applied to her neighbor's farmland, alleging nuisance and negligence.

The defendant brought a third-party claim against the farm lessee and the biosolids applicator.

The court dismissed the plaintiff's action, finding that she failed to prove, on a balance of probabilities, that the biosolids application caused the well contamination.

Crucially, no E. coli., the primary indicator of sewage contamination, was detected in any water samples, despite the presence of other bacteria commonly found in the natural environment.

The court also dismissed the third-party action.

Following trial, the successful plaintiff sought costs consisting of partial indemnity costs to the date of its offer to settle and substantial indemnity costs thereafter pursuant to Rule 49.10 of the Rules of Civil Procedure.

The defendants did not dispute entitlement to costs or the applicability of substantial indemnity costs after the offer but challenged the reasonableness of certain amounts claimed.

The court reviewed the governing principles under Rule 57.01 and appellate guidance emphasizing indemnification of successful litigants, encouragement of settlement, and deterrence of inappropriate litigation conduct.

The court found the plaintiff’s Bill of Costs fair and reasonable, particularly given the defendants’ decision to contest numerous minor claims requiring proof at trial.

Costs were awarded to the plaintiff totaling $60,450.31.

The plaintiff contractor brought a construction lien action against the defendant owner for unpaid extras on a commercial renovation project.

The parties had agreed to a fixed-price contract, but the plaintiff claimed it performed numerous extras at the owner's request.

The owner argued the fixed price was an upset limit and claimed set-off for deficiencies.

The court found that the owner had expressly or impliedly authorized most of the extras and waived any requirement for written authorization.

The court dismissed the owner's claim for set-off because it failed to give the contractor notice of the alleged defects and an opportunity to correct them.

The contractor was awarded a lien judgment for $82,185.82.

Following a successful jurisdiction motion dismissing the plaintiff’s action, the remaining issue concerned costs payable to one of the defendants.

The moving party sought partial indemnity costs after failing to obtain agreement with the self-represented plaintiff.

The court considered the principles governing costs under Rule 57.01(1) of the Rules of Civil Procedure and the discretionary nature of quantum.

Although the bill of costs was not excessive or unreasonable, the court exercised discretion to reduce the requested amount.

Costs were awarded in a reduced all-inclusive amount.

The municipality brought a motion to dismiss a civil action challenging supplemental property assessment notices for a golf course property.

The plaintiff sought declaratory relief that the notices were invalid and requested tax refunds.

The court held that the substance of the claim concerned whether the current value of the land was incorrectly assessed, a matter falling within the exclusive jurisdiction of the Assessment Review Board under ss. 40(1)(a)(i) and 46(1.1) of the Assessment Act.

The court found that litigants cannot circumvent the statutory scheme by framing the dispute as a civil action rather than pursuing the statutory appeal process.

The action was dismissed for lack of jurisdiction.

The appellant was injured in a motor vehicle accident and sued the at-fault driver.

Years later, upon discovering the tortfeasor was underinsured, the appellant sued his own insurer under the OPCF 44 Family Protection Endorsement.

The insurer successfully moved to dismiss the action as statute-barred.

On appeal, the appellant argued the limitation period should only begin when damages are quantified by judgment or settlement.

The Court of Appeal dismissed the appeal, holding that the limitation period begins when the insured has accumulated a body of evidence that would give a reasonable chance of persuading a judge that the claim exceeds the minimum liability limits.

Costs decision following motions for security for costs in two construction lien actions.

The responding parties sought partial indemnity costs totaling over $12,000 for the motions, while the moving parties argued that costs should not exceed $5,000 and should be payable in the cause or deferred pending resolution of undertakings issues.

The court held that the usual rule that costs follow the event applied and that the security for costs motions were discrete from the undertakings issues.

Applying Rule 57.01, the court found the time claimed for preparation excessive and reduced the requested amounts.

Partial indemnity costs of $5,000 and $3,500 respectively were awarded, inclusive of disbursements and HST.

The self-represented plaintiff brought motions for partial summary judgment in two related civil actions arising from municipal employment disputes.

In the first action, the plaintiff alleged breach of a mediated settlement agreement and defamation arising from public statements made by municipal officials and sought damages and an injunction enforcing a confidentiality clause.

In the second action, the plaintiff sought summary judgment for wrongful dismissal against a municipality and sanctions for failure to comply with a court-ordered timetable.

The court held that genuine issues requiring a trial existed in both actions because the disputes depended heavily on credibility and conflicting evidence regarding the parties’ intentions and the nature of the employment relationship.

Summary judgment was therefore inappropriate, though the court imposed modest sanctions against the municipality for breaching the litigation timetable.

In companion construction lien actions, the defendants moved for security for costs against corporate plaintiffs under Rule 56.01(1)(d) of the Rules of Civil Procedure.

Because the proceedings were lien actions, the defendants also required leave under s. 67(2) of the Construction Lien Act to bring the motions.

The court held that leave should not be granted because ordering security was not “necessary” to achieve procedural fairness and would effectively terminate claims that were not plainly devoid of merit.

Although the plaintiffs were impecunious, they demonstrated that their shareholders lacked the resources to fund security and that the actions had arguable merit.

The motions for security for costs were therefore dismissed.

The appellants appealed an order striking out their defence and counterclaim due to outstanding undertakings.

The Court of Appeal found that the motion judge erred by refusing to hear from the appellants' counsel and by striking out the defence when the outstanding undertakings related only to the counterclaim.

Despite the lengthy delay in the proceeding, the appeal was allowed, the motion judge's order was set aside, and the plaintiff's motion was dismissed with no costs.