Thea Paula Herman

Following the dismissal of the plaintiffs' motion for leave to appeal a security for costs order, the defendants sought costs.

The plaintiffs argued costs should be reserved to the trial judge.

The court rejected this argument, noting this was a second attempt to appeal the security for costs order and warranted cost consequences.

The court awarded costs of $2,500 to each of the two responding defendants.

The interveners, H20 Power Limited Partnership and Resolute FP Canada Inc., were granted leave to intervene on restrictive terms.

Both the interveners and the applicants sought costs against each other for the motion.

The court found that success was divided, as neither party achieved their primary position.

Applying the general rule that interveners are not awarded costs and costs are not awarded against them, the court made no order as to costs.

The respondent mother and intervener sought to transfer an appeal regarding child support for an adult child from the Divisional Court to the Court of Appeal, arguing that a Charter challenge to the Family Law Act warranted the transfer.

The Attorney General argued the Divisional Court had jurisdiction.

The court held that under the Courts of Justice Act, appeals of final orders for not more than $50,000 lie to the Divisional Court, regardless of whether a Charter issue is raised.

The court found it had no authority to transfer the matter to the Court of Appeal.

H20 Power Limited Partnership and Resolute FP Canada Inc. brought a motion for leave to intervene as added parties in an application for judicial review concerning the Crown's duty to consult and accommodate the Anishinaabe Nation regarding hydroelectric contracts.

The applicants opposed full intervention, arguing it should be limited to the issue of relief.

The court found that the proposed interveners had a direct interest in the contracts and could provide a useful contribution regarding the operation of the generating stations.

Leave to intervene was granted, subject to conditions limiting their evidence and argument to avoid duplication and delay.

The appellants appealed a Master's order dismissing their motion to extend the time for service of a Statement of Claim arising from a fatal motor vehicle accident.

The Master had found that the defendants would be prejudiced by the delay.

The Divisional Court allowed the appeal, finding that the Master erred in law by concluding that a co-defendant's right to claim contribution and indemnity was lost due to the expiry of a limitation period, and by failing to hold the defendants to their evidentiary obligation to demonstrate actual prejudice caused by the delay in service.

The appellants were granted leave to serve the Statement of Claim.

Following the dismissal of the appellant's appeal, the respondent sought partial indemnity costs of $5,565.54.

The self-represented appellant argued the amount was excessive and disproportionate to the underlying judgment of $772.06.

The court agreed that 19 hours of preparation was excessive for a straightforward appeal, but noted the appellant bore responsibility for bringing the appeal.

Costs were fixed at $2,500 inclusive of HST and disbursements.

The appellants appealed a Small Claims Court judgment awarding the respondent $14,000 for breach of a distribution agreement.

The dispute arose when the respondent refused to make a payment without first inspecting the machinery, which the appellants refused to allow.

The Divisional Court found that while the Deputy Judge erred in admitting two affidavits without considering the appellants' inability to cross-examine the deponents, this error did not affect the result.

The court upheld the findings that the operability of the machine was relevant and that the appellants were liable for the respondent's loss.

The appeal was dismissed.

The plaintiffs sought leave to appeal an order upholding a Master's decision requiring them to post further security for costs.

The plaintiffs, who were non-residents and not impecunious, argued the judge misapplied the 'good chance of success' test by conflating it with the summary judgment test and failing to define it.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the order and holding that the Master and the appeal judge had properly applied the established legal test.

The landlord moved to quash the tenant's appeal of a Landlord and Tenant Board eviction order on the basis that it was manifestly devoid of merit.

The tenant argued the eviction order was an improper collateral attack on a recognizance issued after related criminal charges were withdrawn, and alleged improper ex parte communications by the landlord.

The Divisional Court found both grounds of appeal manifestly devoid of merit, noting that the withdrawal of criminal charges does not preclude eviction based on the same underlying acts due to differing standards of proof.

The motion to quash was granted, the appeal was dismissed, and costs were awarded to the landlord.

Following the breakdown of a 41‑year marriage, the parties sought competing equalization payments under the Family Law Act.

The court considered disputes regarding undisclosed bank accounts allegedly belonging to the respondent’s sister, artwork claimed as excluded property by the applicant, and other asset valuations.

Emails between the respondent and his sister were admitted despite allegations they were improperly obtained, as they were highly relevant and the respondent had misled the court about their existence.

The court rejected the respondent’s explanation that approximately $74,000 in bank accounts belonged to his sister and included those funds in his net family property.

Accepting the applicant’s net family property calculation, the court ordered the respondent to pay an equalization payment of $73,678.50, released trust funds to the applicant, secured payment against the matrimonial home, and granted a divorce.

The moving party sought leave to appeal a costs order requiring him to pay $32,500, representing 50% of the responding party's partial indemnity costs.

He argued the trial judge erred in determining the responding party was the more successful party despite divided success.

The court dismissed the motion, finding that the determination of relative success is a discretionary matter and the trial judge made no error in principle or misapprehension of significant facts.

Following a trial regarding variation of child and spousal support, both parties sought substantial costs awards.

Each argued they were the more successful party after the court ordered a modest reduction in support based on imputed income.

The court found neither party was clearly more successful and criticized both sides for conducting the litigation in a grossly disproportionate manner relative to the financial issues in dispute.

The court also considered the potential impact of a significant costs award on the custodial parent’s ability to support the child.

In the circumstances, the court concluded that fairness and proportionality required that each party bear their own costs.

The plaintiffs sought leave to appeal a costs order of $12,500 awarded to the defendants after the plaintiffs discontinued their action.

The plaintiffs argued that the parties had agreed to a discontinuance without costs and that the motion judge failed to address this agreement in his reasons.

The Divisional Court found that the evidence did not support the existence of such an agreement, as the defendants' offer was conditional on a similar agreement with another defendant, which was never reached.

The motion for leave to appeal was dismissed.

The appellant appealed a Small Claims Court decision awarding the respondent paralegal firm $772.06 on a quantum meruit basis after finding their contingency fee agreement illegal.

The appellant argued the Deputy Judge erred by allowing a late amendment to plead quantum meruit and by applying an incorrect hourly rate.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the Deputy Judge's conclusions that the amendment caused no prejudice and that the appellant had accepted the bulk of the charges at trial.

The defendants sought leave to appeal an order dismissing their motion to compel the representative plaintiff to answer discovery questions regarding class members' tax and income information.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's decision that the questions were speculative, disproportionate, and premature given that the methodology for calculating damages had not yet been determined.

The father appealed an Ontario Court of Justice order requiring him to remove internet postings that identified, directly or indirectly, his children as participants in a child protection proceeding, contrary to statutory publication restrictions.

He argued the judge erred in finding the postings identified the children, alleged procedural unfairness, claimed inability to remove the material, and alleged bias and factual errors.

The court held that the videoblogs, including tags and contextual references to family court and a children’s aid society, indirectly identified the children and their connection to protection proceedings.

The judge properly applied the statutory prohibition on publishing identifying information and committed no reversible error.

The appeal was dismissed.

The plaintiff sought leave to appeal an order dismissing a motion to stay the defendants' pre-discovery summary judgment motion.

The plaintiff argued the motion judge relied on a test that conflicted with other jurisprudence and that there was good reason to doubt the correctness of the decision.

The Divisional Court found no conflict in the case law, noting that different approaches to case management did not amount to conflicting legal tests.

The court also found no reason to doubt the correctness of the motion judge's decision, as the appropriateness of a summary judgment motion without discovery is case-specific.

Leave to appeal was denied.

The respondent in a family law proceeding brought a motion seeking security for costs by preventing the sale, transfer, or encumbrance of a property registered in the applicant’s name.

The motion relied primarily on the applicant’s failure to pay a prior $750 costs order and concerns that the property might be transferred to a third party.

The court held that while Rule 24(13) of the Family Law Rules permits security for costs where a costs order remains unpaid, the amount outstanding was minimal and insufficient to justify the order.

The motion was also brought at the conclusion of trial, undermining the policy considerations typically underlying security for costs.

The court further noted that the requested order could affect the interests of a non‑party who contributed to the mortgage and expenses of the property.

The motion was dismissed and previous orders restricting dealings with the property were vacated.

In matrimonial litigation, the respondent spouse brought a motion seeking extensive third‑party production relating to the estate and business affairs of the applicant’s deceased father, asserting that undisclosed gifts or anticipated inheritance were relevant to spousal support.

The court held that the request was based largely on speculation and suspicion and declined to order broad production from the estate, particularly where the inheritance had not yet been distributed and was subject to ongoing litigation.

The court ordered instead that the applicant provide an affidavit from the father’s accountant confirming any income received from the father or his businesses since separation.

On a cross‑motion, the applicant sought security for an anticipated equalization payment under s. 12 of the Family Law Act.

Finding a real risk of dissipation of assets due to inconsistent financial disclosures and substantial cash holdings, the court ordered the respondent to pay $500,000 into court pending trial.

The appellants appealed a trial judgment dismissing their claim for constructive dismissal damages of $25,000.

The trial judge found that the individual appellant was an independent contractor, not an employee or dependent contractor, based on factors including his ability to set his own hours, his work for other clients, and his use of his own corporation.

The Divisional Court dismissed the appeal, finding no error in the trial judge's application of the legal test or her credibility findings preferring the respondent's evidence.