Thomas J. McEwen

The appellant appealed a decision of the Social Benefits Tribunal, which declined to hear her appeal regarding the City of Toronto's failure to provide her with an employment placement.

The Divisional Court dismissed the appeal, finding that under s. 26(2)1 of the Ontario Works Act, 1997, decisions respecting employment assistance that do not affect eligibility for or the amount of income assistance are not appealable to the Tribunal.

The court rejected the appellant's argument that a potential future reduction in need for income assistance made the decision appealable.

Following the defendants’ complete success on a summary judgment motion and related application, the court determined the appropriate costs payable by the plaintiff.

The defendant warranty corporation sought substantial indemnity costs but provided no justification, and the court instead awarded partial indemnity costs.

The court reviewed the defendants’ bill of costs and reduced certain counsel fees while allowing reasonable disbursements.

Additional limited costs were permitted for preliminary legal assistance performed by a lawyer who was not solicitor of record, but no costs were allowed for work related to a third party claim.

The plaintiff was ordered to pay specified partial indemnity costs to the successful defendants.

Homeowners brought a motion under s. 47 of the Construction Lien Act and Rule 20 of the Rules of Civil Procedure seeking to discharge a construction lien and certificate of action and to dismiss the contractor’s action.

The court held that conflicting affidavit evidence regarding the amount and nature of work performed created genuine issues requiring a trial, preventing summary judgment dismissing the action.

However, the evidence demonstrated that the lien amount of $250,000 was grossly inflated relative to the limited work allegedly performed.

Exercising its discretion under the Construction Lien Act, the court ordered that the lien and certificate of action be vacated upon payment into court of a reduced amount representing a reasonable security for the claim.

The plaintiff brought a motion for summary judgment arising from five equipment lease agreements after the defendants defaulted on payments.

The responding individual defendant argued that he did not sign the agreements, that Ontario lacked jurisdiction, that he was not liable under the contracts, and that damages were exaggerated.

The court found no genuine issue requiring trial regarding execution of the agreements, jurisdiction, or contractual liability, noting affidavit evidence confirming the defendant signed the agreements and a contractual clause submitting disputes to Ontario courts.

However, the court determined the evidentiary record was insufficient to assess the reasonableness of the resale of repossessed equipment and therefore could not determine damages on the existing record.

Summary judgment was granted on liability, while the damages issue was adjourned for further submissions.

Following a prior finding of civil contempt for breaching a court order, the court conducted a sentencing hearing to determine the appropriate sanction.

The contemnor had continued to violate the order by disseminating derogatory online statements and contacting third parties despite the existing injunction.

The court reviewed the principles governing civil contempt sanctions, emphasizing deterrence, denunciation, proportionality, and the coercive purpose of enforcing compliance with court orders.

Although the contemnor apologized and undertook to comply going forward, the court noted a pattern of ongoing defiance and imposed a conditional sanction.

The contemnor was warned that any future breach would result in a 90‑day custodial sentence, and substantial indemnity costs were awarded to the moving parties.

Following a two‑day civil trial, the court determined the issue of costs after the parties were unable to agree.

Both sides argued that they had beaten their respective offers to settle, but the court found neither offer engaged the cost consequences under the Rules of Civil Procedure.

The plaintiff was entitled to costs on a partial indemnity basis throughout.

However, the court reduced the amount sought due to concerns about the hourly rate claimed, the matter having been suitable for the Simplified Procedure, and duplication arising from multiple legal professionals working on the file.

The court fixed costs at $12,500 plus HST and undisputed disbursements.

In a costs endorsement following earlier proceedings, the court reviewed written submissions from the plaintiff regarding costs and interest.

The responding defendants filed no materials and did not respond to correspondence from the court.

The court determined that the plaintiff had incorrectly calculated prejudgment interest by using post‑judgment quarterly rates.

The plaintiff was directed to resubmit corrected prejudgment interest calculations within 21 days, after which the court would provide reasons on costs and interest.

The plaintiff brought an action for libel against the defendants regarding an article published in a South Korean newspaper and on its website.

The defendant author argued the action was statute-barred under the Libel and Slander Act and the Limitations Act, 2002, and that the words were not defamatory.

The court found that the notice and limitation provisions of the Libel and Slander Act did not apply as the newspaper was not printed and published in Ontario, and even if they did, the action was commenced in time based on the discoverability principle.

The court held the article was defamatory and the author's conduct was reckless and malicious.

The plaintiff was awarded $12,000 in general damages, $5,000 in punitive damages, and a permanent injunction.

The plaintiffs brought a motion for contempt under rule 60.11(1) of the Rules of Civil Procedure alleging that the defendant breached an interlocutory injunction prohibiting the parties from publishing or communicating about each other and requiring removal of online postings.

Evidence showed the defendant continued communicating derogatory information about one plaintiff to third parties, including emails and contact with media, and failed to remove online postings.

The defendant acknowledged the communications and admitted guilt during submissions.

Applying the established test for civil contempt, the court held the order was clear, the defendant had knowledge of it, and he wilfully disobeyed it.

The court found the defendant in contempt and directed that sentencing be determined at a later hearing.

Following a three‑day civil trial, the plaintiffs obtained default judgment against one defendant while their claim against the other defendant was dismissed.

The court addressed competing submissions regarding costs.

The plaintiffs sought significant costs against the defaulting defendant, but the court found the claimed amount excessive given the straightforward nature of obtaining default judgment and reduced the award to reflect reasonable fees and disbursements.

The successful defendant sought substantial indemnity costs based on a pre‑trial offer to settle, but the court held that the offer to settle rule did not apply because the plaintiffs’ action against that defendant was dismissed entirely.

The court awarded that defendant partial indemnity costs at the upper end of the applicable hourly range and rejected the plaintiffs’ request that the defaulting defendant bear those costs.

The defendants brought a motion to dismiss or stay an action concerning alleged construction deficiencies in a new home.

The plaintiff had previously pursued warranty claims through the statutory regime under the Ontario New Home Warranties Plan Act and unsuccessfully litigated the issues before the Licence Appeal Tribunal and on appeal.

The court held that the action attempted to relitigate the same warranty issues and was barred by issue estoppel, res judicata, abuse of process, and collateral attack on tribunal decisions.

In addition, the defendants applied for an order declaring the plaintiff a vexatious litigant based on a long history of repetitive and abusive litigation conduct.

The court granted the application and imposed restrictions requiring leave of the court before the plaintiff could commence further proceedings against the defendants.

The court considered costs submissions following a motion.

The responding parties did not dispute the number of hours or rates claimed by counsel for the successful parties, except for the preparation time for the motion.

The court found that four hours of preparation was reasonable and awarded costs of $6,510.09 inclusive for the motion, plus $250.00 plus HST for preparing the costs submissions.

Although the responding parties argued that payment within 30 days would cause financial hardship, the court allowed additional time for payment.

Costs were ordered payable within 90 days.

Following an earlier endorsement on the merits, the court determined the issue of costs between the commercial landlord applicant and tenant respondent.

The applicant sought costs on a substantial indemnity basis pursuant to a lease provision.

The court accepted that the contractual clause justified substantial indemnity costs but reduced the claimed amount because the respondent achieved some limited success on the application and the hours claimed by counsel and a law clerk were considered high.

The court awarded a reduced lump-sum costs amount inclusive of certain disputed disbursements.

The plaintiff brought an action against the defendants for the monetary value of a 5% ownership interest in a radio station and for the return of capital injections she made to the station.

The defendants argued she lacked standing because the funds were advanced via corporate cheques from her companies.

The court rejected this defence, finding the defendants knew they were dealing with her personally.

The court awarded the plaintiff $83,915.75 against the corporate defendant.

The corporate defendant's cross-claim against the former owner for indemnity was granted.

Claims against the individual defendants were dismissed.

The plaintiff sought approximately $2.6 million in damages against a contractor and an acrylic sheet manufacturer arising from alleged defects in the design, manufacture, and installation of a skylight system for a horse riding arena.

The plaintiff alleged negligent design, negligent manufacture of acrylic sheets, negligent misrepresentation in product literature, and spoliation of evidence.

After a lengthy trial, the court found no negligence or breach of contract by the contractor and no negligence in the manufacture of the acrylic sheets by the manufacturer.

Although the manufacturer should have disclosed certain test results regarding light transmittance, the plaintiff failed to prove causation.

The court further held the plaintiff fundamentally breached the contract and was contributorily negligent by refusing to install an automatic controller and by failing to implement recommended ventilation and heating measures, and also failed to mitigate its losses.

Neighbouring homeowners sued after a residential fire originating in the defendant’s semi‑detached house damaged their property.

One defendant, who was alleged to have caused the fire by careless smoking, did not defend and was noted in default.

The court held that the alleged admission by that defendant to his father was inadmissible hearsay against the co‑defendant homeowner and could not be relied upon to prove causation.

Without admissible evidence establishing how the fire began, the plaintiffs failed to prove negligence on a balance of probabilities, and the fire was characterized as “accidental” under the Fire Protection and Prevention Act, 1997.

The homeowner was neither directly negligent nor vicariously liable for the alleged conduct of his adult son.

Following a non-jury trial in which the plaintiff recovered damages and the defendant’s counterclaim was dismissed, the parties were unable to agree on costs and prejudgment interest.

The court determined that no Rule 49 offers engaged the enhanced cost consequences under the Rules of Civil Procedure.

Costs were therefore awarded to the successful party on a partial indemnity basis, with the court fixing a reasonable hourly rate and approving trial preparation and attendance time as proportionate to the complexity of the dispute.

The court also addressed disbursements, rejecting the argument that mediation costs should be excluded.

Prejudgment interest was awarded at the standard rate of 4.3% pursuant to the Courts of Justice Act, with no special circumstances justifying a departure.

During a jury trial arising from a motor vehicle accident, the defendant moved for a determination that the plaintiff’s claim for non‑pecuniary damages was barred under s. 267.5(5) of the Insurance Act.

The court considered whether the plaintiff sustained a permanent, serious impairment of an important physical function, the statutory threshold required to recover such damages.

After reviewing medical evidence, credibility findings, and the plaintiff’s post‑accident activities, the court concluded that the plaintiff did not establish a permanent impairment and, in any event, any impairment was neither important nor serious.

The judge also noted the modest jury award for pain and suffering as consistent with the evidentiary record.

The plaintiff was therefore barred from recovering non‑pecuniary damages.

The defendant moved to set aside a noting in default and a default judgment arising from a claim for non‑payment of a mortgage debt.

The court applied the established test requiring promptness, a plausible explanation for the default, and an arguable defence on the merits.

The defendant asserted that health issues prevented awareness of the statement of claim and demonstrated an arguable defence through a related action alleging misrepresentations concerning the subject property, supporting a claim of equitable setoff.

The court held that the interests of justice favoured setting aside the default judgment.

The order was set aside on the condition that the defendant pay $250,000 into court and deliver a statement of defence.

The plaintiff, an engineering and consulting company, brought an action against the defendant for breach of an oral agreement regarding the upgrade of a test panel for an aerospace project.

The plaintiff sought payment for three outstanding invoices.

The defendant counterclaimed, alleging the plaintiff abandoned the project and failed to complete the original scope of work, which the defendant argued included a real-time computer and full automation.

The court found that the real-time computer and full automation were not part of the original scope of work and that the plaintiff did not abandon the project.

The court awarded the plaintiff $78,559.09 for the outstanding invoices and dismissed the defendant's counterclaim.