Thomas G. Conway

Following a successful motion to amend a statement of claim, the moving party sought partial indemnity costs of $12,227.50.

The court considered the presumption that a successful party is entitled to costs but also the rule that prejudice caused by pleading amendments may be remedied through costs.

After reviewing the costs outlines, the court found portions of the claim excessive, including estimated travel costs and fees for junior counsel appearing on the motion.

Applying the factors under s. 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, the court fixed partial indemnity costs at $10,000.

Payment was deferred pending the outcome of an appeal and any further arguments concerning terms of the amendment.

The plaintiff corporation brought a motion to amend its statement of claim to increase the damages sought from $40 million to $650 million and to clarify allegations of fraudulent misrepresentation arising from the purchase of a company under a share purchase agreement.

The defendants opposed the amendment, arguing it fundamentally changed the litigation, was legally untenable, highly prejudicial, and constituted an abuse of process because the agreement limited recovery to an escrow fund absent fraud by the shareholders.

The court applied Rule 26.01 of the Rules of Civil Procedure, holding that amendments must be granted unless the claim is untenable, causes non-compensable prejudice, or constitutes an abuse of process.

Although the amendment significantly expanded the claim and came late in the litigation, the court found the proposed claim was not clearly doomed to fail and that any prejudice could be addressed through procedural adjustments and costs.

Leave to amend the pleading was therefore granted.

Following a successful Rule 21 motion striking a statement of claim for disclosing no reasonable cause of action, the court determined the appropriate scale and quantum of costs.

The moving defendants sought substantial indemnity costs, arguing that the proceeding duplicated existing litigation and required significant effort to defend.

The court held that elevated costs are generally justified only where Rule 49 offers to settle apply or where the losing party’s conduct warrants sanction.

Finding no such circumstances, the court awarded costs on a partial indemnity basis and reduced the claimed amount after considering proportionality and the reasonableness of more than 240 hours billed for a two‑day motion.

The plaintiffs, former executives and shareholders of Med-Eng, sued the company and its directors for oppressive conduct regarding a share repurchase.

After Med-Eng was acquired by Allen-Vanguard, the plaintiffs commenced a new action against the original defendants and added defendants (the acquirer, offeree shareholders, and escrow agent), seeking a constructive trust over an escrow fund.

The motions judge struck the new action as an abuse of process and for disclosing no reasonable cause of action against the added defendants.

The Court of Appeal dismissed the appeal, finding the new action circumvented the rules for amending pleadings and adding parties, and that no cause of action in unjust enrichment, breach of fiduciary duty, or resulting trust was pleaded against the added defendants.

The plaintiff was dismissed from her employment with the City of Ottawa for insubordination after refusing to return to work under her supervisor and escalating a harassment complaint.

She was on sick leave at the time.

The City initially alleged just cause but withdrew the defence at trial and paid severance.

The trial judge awarded Wallace damages, finding the City made a mistake in dismissing her while on sick leave and that the dismissal for cause was unwarranted.

The Court of Appeal allowed the City's appeal, holding that an employer's reasonable belief in just cause and a mere mistake in timing do not constitute bad faith or unfair dealing required for Wallace damages.

The appellant, a non-party witness, appealed an order directing him to attend for examination pursuant to a summons issued by the applicant.

The applicant had commenced an application against the Conservative Party of Canada.

A previous motion by the Conservative Party to quash the summons had been dismissed.

The Court of Appeal dismissed the appeal, finding no error in the order requiring the appellant's attendance, as the appellant's evidence was potentially relevant and he had not brought his own motion to quash the summons.

The court also refused to stay the examination pending a motion to stay the underlying application.

The appellants, a software developer and its CEO, appealed the dismissal of their application for a declaration that their insurer had a duty to defend them in an underlying action.

The underlying action alleged copyright infringement and misuse of confidential information in the development of competing software.

The appellants argued these claims fell under the 'advertising injury' coverage of their commercial general liability policy.

The Court of Appeal dismissed the appeal, finding that the policy required a direct causal link between the advertising activity and the alleged offence.

Because the underlying statement of claim did not allege that the copyright infringement or misappropriation occurred in the course of advertising, the duty to defend was not triggered.

The appellant appealed a jury verdict.

The Court of Appeal dismissed the appeal, noting that the appellant had exercised its right to a jury trial, took no objection to the jury charge, and that credibility was a central issue.

The court held that the jury verdict must be accorded great weight and found no basis to interfere with it.

The appellant appealed the dismissal of his action for $100,000 in life insurance proceeds following the death of his common law spouse.

The trial judge found the insurer was entitled to avoid the policy due to material misrepresentations about the deceased's health.

The appellant argued the insurer was estopped from avoiding the policy because it continued to accept premiums.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the misrepresentations were material and that the insurer's actions did not amount to an estoppel.