Steven D. Gadbois

Following dismissal of a wrongful dismissal action after a four-day trial, the court determined the costs consequences where the defendant had abandoned a counterclaim at the commencement of trial.

The plaintiff sought partial indemnity costs for preparation relating to the counterclaim, which had required trial preparation before its discontinuance.

Applying Rules 23.05 and 23.07 of the Rules of Civil Procedure and the discretion under s.131 of the Courts of Justice Act, the court held that the plaintiff was entitled to partial indemnity costs attributable to the counterclaim up to the point of discontinuance.

The court apportioned 25% of pre‑trial preparation to the counterclaim and set off those costs against the defendant’s entitlement following dismissal of the main action.

After adjustments and set‑off, the plaintiff was ordered to pay net costs to the defendant.

Following an unsuccessful estate application brought by the executor, the successful responding beneficiaries and a corporate trustee sought costs.

The court considered the Rule 57 factors governing costs awards, including the reasonableness of the fees sought and the amount an unsuccessful party could reasonably expect to pay.

Although both respondents were entitled to partial indemnity costs, the court reduced the corporate trustee’s claimed fees due to proportionality concerns and its more limited role in the litigation.

The court ordered that the costs be paid personally by the executor rather than from the estate, emphasizing that the estate should not bear the expense of unsuccessful litigation pursued by a trustee.

Following an unsuccessful estate application brought by the executor, the successful responding beneficiaries and a corporate trustee sought costs.

The court considered the Rule 57 factors governing costs awards, including the reasonableness of the fees sought and the amount an unsuccessful party could reasonably expect to pay.

Although both respondents were entitled to partial indemnity costs, the court reduced the corporate trustee’s claimed fees due to proportionality concerns and its more limited role in the litigation.

The court ordered that the costs be paid personally by the executor rather than from the estate, emphasizing that the estate should not bear the expense of unsuccessful litigation pursued by a trustee.

An estate trustee applied to remove a corporate co-trustee from administering an estate that held valuable Muskoka cottage property subject to life interests.

The applicant argued the corporate trustee obstructed efforts to obtain a reverse mortgage to fund repairs and maintenance after the estate’s capital maintenance fund was exhausted.

The court applied the established test for removal of trustees, emphasizing that a testator’s choice of trustee should not be lightly interfered with and that removal requires clear necessity and must promote the welfare of beneficiaries.

The proposed borrowing arrangement was vague and risked depleting the trust asset while primarily benefiting the life tenant at the expense of residual beneficiaries.

The court concluded that the applicant failed to demonstrate that removal of the corporate trustee was necessary or that it was the only viable course.

An estate trustee applied to remove a corporate co-trustee from administering an estate that held valuable Muskoka cottage property subject to life interests.

The applicant argued the corporate trustee obstructed efforts to obtain a reverse mortgage to fund repairs and maintenance after the estate’s capital maintenance fund was exhausted.

The court applied the established test for removal of trustees, emphasizing that a testator’s choice of trustee should not be lightly interfered with and that removal requires clear necessity and must promote the welfare of beneficiaries.

The proposed borrowing arrangement was vague and risked depleting the trust asset while primarily benefiting the life tenant at the expense of residual beneficiaries.

The court concluded that the applicant failed to demonstrate that removal of the corporate trustee was necessary or that it was the only viable course.

The court determined costs following a successful motion arising from a dispute over the interpretation and enforcement of a formal Offer to Settle.

The moving party achieved complete success on the motion and sought costs against the opposing party, who had contested whether acceptance of the offer resolved the entire action.

Applying the factors in Rule 57.01 of the Rules of Civil Procedure and relevant appellate authority, the court found the opposing party’s litigation conduct unreasonable and in bad faith, including prolonging proceedings and dissipating assets contrary to a prior order.

The court awarded the successful party $15,000 for the motion and assessed the opposing party’s allowable legal expenses under the wording of the accepted offer.

After calculating permitted legal expenses and applying a set-off between the competing amounts, the court determined the net deduction applicable to the judgment.

The successful respondents sought partial indemnity costs for four appeals totaling $10,495.51.

The appellants requested no costs or a reduced amount of $3,000.

Noting that the appellants did not complain about the rate or time spent, and that their own costs outline was similar, the court found the respondents' request met the Boucher test and awarded the full amount claimed.

The defendant brought a motion for security for costs under Rule 56.01(1) of the Rules of Civil Procedure on the basis that the plaintiff was ordinarily resident outside Ontario.

The plaintiff opposed the motion, arguing delay, lack of leave under Rule 48.04, and claiming impecuniosity such that ordering security would prevent continuation of the action.

The court found that the plaintiff appeared to be ordinarily resident in Costa Rica and had not displaced that appearance.

The plaintiff failed to provide sufficient evidence of impecuniosity and declined cross‑examination on his affidavit.

The court concluded it was just to order security and fixed the amount based on partial indemnity costs estimated through trial.

The appellants appealed four Small Claims Court decisions dismissing their motions for judgment based on alleged settlements.

The deputy judge had previously set aside default judgments against the respondents, finding no settlements were concluded.

On the subsequent motions to enforce the settlements, the deputy judge dismissed them on the basis of res judicata.

The Superior Court dismissed the appeals, finding no error in the deputy judge's refusal to recuse himself and agreeing that the issue of settlement was res judicata as it had been squarely raised and decided in the prior motions.