Tim Gleason

Following dismissal of a summary judgment motion brought by certain defendants, the court determined the appropriate costs award.

The plaintiff sought partial indemnity costs for successfully resisting the motion and for related procedural steps including a consent amendment to the statement of claim.

The court applied the discretionary criteria under Rule 57.01 of the Rules of Civil Procedure, emphasizing the significance of the motion to both parties and the reasonableness of the plaintiff’s litigation steps.

While the plaintiff largely succeeded, the court adjusted the claimed amount modestly based on reasonable expectations of the losing parties.

Costs were fixed in favour of the plaintiff against the moving defendants and separately against another defendant for an earlier substituted service motion.

The respondents brought a preliminary motion to strike portions of an elector’s application under the Municipal Conflict of Interest Act on the basis that several alleged contraventions were commenced outside the six‑week time limit in s. 9(1).

The court examined the legislative history and jurisprudence interpreting the provision and concluded that s. 9(1) functions as a temporal qualification for applicants rather than a conventional limitation period.

The relevant inquiry focuses on the applicant’s actual or constructive knowledge of the facts giving rise to the alleged contravention, not on what a reasonably diligent person could have discovered from publicly available information.

The court held that the applicant’s uncontradicted evidence established that she commenced the application within six weeks of acquiring the requisite knowledge.

The moving parties failed to prove earlier knowledge that would render the application untimely.

Judgment creditors brought a motion seeking production of a law firm’s books, trust records, bank statements, and documents relating to mortgages held in trust for the debtor, and asserted that the mortgage interests themselves were garnishable debts.

The court considered whether mortgage interests held in trust constituted “debts payable” under r. 60.08 of the Rules of Civil Procedure and whether the requested records could be compelled under r. 60.18(6).

The court held that a mortgage interest in land is not a liquidated money demand and therefore not a debt subject to garnishment until converted into money.

It further held that the broad documentary disclosure sought would breach solicitor-client privilege and no recognized exception justified disclosure.

The motion was dismissed.

The applicant, a self-represented former client, moved under Rule 37.14 to strike out a motion brought by the respondent law firm to stay an ongoing assessment of its accounts.

The court dismissed the motion, finding that Rule 37.14 does not apply to assessment proceedings under the Solicitors Act, nor does it apply to motions heard on notice or motions that have not yet resulted in an order.

The court awarded costs of $1,500 to the respondent, noting the applicant's unsupportable allegations of wrongdoing against the Assessment Officer and opposing counsel.

The defendants moved for summary judgment dismissing a fraudulent conveyance action arising from a transfer of farm property allegedly made to defeat unresolved family law support and proprietary claims, and the plaintiff cross-moved for leave to amend to plead constructive trust and tracing remedies.

The court held that an unresolved support claim under the Family Law Act provided standing as a 'creditor or other' under s. 2 of the Fraudulent Conveyances Act.

It further held that an FCA action seeking to set aside a conveyance of real property is an action to recover land governed by s. 4 of the Real Property Limitations Act, attracting a ten-year limitation period rather than the two-year period under the Limitations Act, 2002.

The action and proposed amendments were therefore not statute-barred.

The defendants' motion was dismissed and the plaintiff's cross-motion was granted.

In a class action under the Class Proceedings Act, 1992, the court determined the costs consequences of an earlier production motion concerning potentially privileged documents.

The moving parties sought production of documents held by other law firms that were within the power, possession, or control of the plaintiff.

The court had previously granted production with respect to one set of documents but denied production for another.

On the costs issue, the court held that the moving parties were successful and were entitled to costs, but that the costs should be payable in the cause given the plaintiff’s legitimate need to protect solicitor-client privilege.

The court awarded each successful moving party $10,000, all inclusive, payable in the cause.

The respondents, former employees and officers of a union local, brought an application before the Ontario Labour Relations Board alleging unfair labour practices.

They requested the vice-chair recuse himself because he had previously acted for one of the respondents in an employment dispute.

The vice-chair declined and dismissed the application for serving no labour relations purpose.

The Divisional Court quashed the decisions, finding a conflict of interest.

The Court of Appeal allowed the appeal, holding that the Divisional Court erred by applying the test for a lawyer's conflict of interest rather than the test for reasonable apprehension of bias by an adjudicator.

The Court found the presumption of impartiality was not rebutted and reinstated the vice-chair's decisions.

The moving parties sought a review of a motion judge's order dismissing their motion to extend the time for filing a notice of appeal.

The Court of Appeal found that the motion judge erred in rejecting hearsay evidence from the moving parties' solicitor regarding their intention to appeal.

Given the short delay, the lack of prejudice to the respondent, and the arguable merit of the proposed appeal, the Court set aside the motion judge's order and granted the extension of time.

The applicant sought judicial review of an arbitration award that ordered her to repay a $209,912 lump sum to her former employer.

The arbitrator found that the applicant breached the confidentiality provision of a grievance settlement agreement by referencing the payment in a self-published book.

The Divisional Court dismissed the application, finding that the applicant lacked standing because the union had not failed in its duty of fair representation.

Furthermore, the court held that the arbitrator reasonably concluded the repayment provision was a valid forfeiture clause, not an unconscionable penalty, and that the applicant had clearly breached the confidentiality terms.

The appellant lawyer appealed a decision of the Law Society Tribunal Appeal Division, which upheld a Hearing Panel's finding of professional misconduct and the revocation of his license.

The appellant had acted for investors in 14 real estate transactions involving a fraudulent scheme to mislead institutional lenders into financing the entire purchase price of homes.

The Divisional Court found the Hearing Panel's conclusion that the appellant knowingly assisted in the fraud to be reasonable, noting his reverse-engineering of Statements of Adjustments.

The court also upheld the penalty of revocation, affirming that absent exceptional circumstances, revocation is the presumptive penalty for knowing participation in mortgage fraud to maintain public confidence in the legal profession.

The applicant union sought judicial review of a supplementary interest arbitration award concerning per diem meal allowances for cabin personnel on a new low-cost carrier.

The union argued the arbitrator was functus officio and lacked jurisdiction to reverse his previous award.

The Divisional Court dismissed the application, finding that the arbitrator had jurisdiction to clarify an inherent contradiction in the initial award to reflect his manifest intention that the new service remain competitive as a low-cost carrier.

The arbitrator's decision to impose the mainline per diem rate was reasonable.

Following a Rule 57.07 motion concerning potential personal liability of counsel for costs, the law firm and a lawyer sought recovery of their legal costs incurred in defending the motion.

The responding party had sought to impose more than $100,000 in costs against counsel personally.

The court held that the requested full indemnity costs were excessive and that the responding party’s conduct was not reprehensible.

However, given the seriousness of the allegations and the work required to defend the motion, the court awarded partial indemnity costs.

Costs of the Rule 57.07 motion were fixed at $15,000 payable by the responding party, and no additional costs were awarded between the original litigants for the costs hearing.

The appellant employee had an agreement with the respondent employer to sell products on commission.

The employer unilaterally informed the employee that it would pay a lower commission rate for a recently negotiated sale.

The employee did not accept this anticipatory breach and continued to press for the higher rate.

When the commission became payable, the employer tendered payment at the lower rate.

The employee sued for the shortfall more than two years after the employer's initial notice but less than two years after the deficient payment.

The Court of Appeal held that the limitation period did not begin to run until the employer actually failed to pay the full commission due, as the employee had elected to treat the contract as subsisting.

The appeal was allowed and the summary judgment dismissing the action was set aside.

Following the dismissal of a motion seeking consolidation of an action and an application concerning ownership of a cottage, the court determined the appropriate costs payable to the successful defendants.

Applying s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court emphasized that costs must be fair and reasonable rather than reflective of actual legal expenses.

The court assessed the roles played by counsel, the relative simplicity of the motion, and the absence of extensive responding materials.

Several defendants were awarded reduced partial indemnity costs reflecting their limited participation, while the defendant who prepared the principal responding materials received a higher award.

The unsuccessful moving party was ordered to pay the fixed costs to each successful defendant within ninety days.

The plaintiffs sued the defendant, a land use consulting company, for professional negligence causing pure economic loss.

The defendant third-partied its lawyers and subsequently filed for bankruptcy, staying the action.

The plaintiffs moved to lift the stay under the Bankruptcy and Insolvency Act to access the bankrupt's professional liability insurance.

The third parties opposed, arguing that under Ontario law (Perry v. General Security Insurance), s. 132 of the Insurance Act does not permit direct recovery against an insurer for pure economic loss.

The Registrar granted the motion, lifting the stay to allow the plaintiffs to amend their claim to seek a declaration that the bankrupt holds the insurance policy in trust, thereby utilizing equitable principles to bypass the strictures of s. 132.

The applicants sought judicial review of decisions by the Ontario Labour Relations Board dismissing their application.

They argued that the Vice-Chair should have recused himself because he had previously acted as a lawyer for one of the applicants in a related matter.

The Divisional Court found that the Vice-Chair misunderstood the test for conflict of interest and the appearance of bias, as set out in Macdonald Estate v. Martin.

The court quashed the Board's decisions and remitted the matter for a new hearing before a differently constituted panel.

The applicant sought judicial review of an arbitrator's interim award denying her independent standing in a grievance arbitration concerning her alleged breach of a settlement agreement's non-disclosure provision.

The Divisional Court dismissed the application, finding the arbitrator reasonably concluded that the union had exclusive carriage of the matter and that any complaints regarding the union's representation should be directed to the Ontario Labour Relations Board.

The Court also held that the application for judicial review was premature.

The applicant sought judicial review of an arbitrator's decision denying her standing.

The Divisional Court dismissed the application, finding the arbitrator's decision on standing was both reasonable and correct.

The court further held that without standing, the applicant could not raise the issue of bias.

The court noted prematurity might also be a ground for dismissal but reserved definitive findings for written reasons to follow.

Following the dismissal of the applicant's motion for leave and judicial review of a Law Society Hearing Panel decision, the court determined costs.

The respondent sought partial indemnity costs of $7,669.40.

The applicant argued for no costs, claiming the issue was novel and blaming the respondent for not agreeing to an adjournment.

The court rejected the applicant's arguments, noting he chose the venue and his own costs outline exceeded the respondent's claim.

The court awarded the successful respondent costs fixed at $5,000 inclusive of disbursements and HST.

The applicant, a solicitor facing professional misconduct proceedings, sought leave under s. 6(2) of the Judicial Review Procedure Act to have his application for judicial review of a Law Society hearing panel's venue decision heard by the Superior Court of Justice rather than the Divisional Court.

The applicant sought to challenge the panel's refusal to change the hearing venue from Toronto to Ottawa.

The court dismissed the application, finding that the applicant failed to establish urgency or that the delay in proceeding to the Divisional Court would result in a failure of justice.

The court noted that the venue decision was interlocutory and the applicant's evidentiary record before the panel was deficient.