Timothy Morgan

In a standalone costs decision following a partially successful stay motion in construction lien litigation, the court determined costs based on overall success rather than issue-by-issue outcomes.

The moving party obtained one of three requested stays and was found to have achieved the motion's primary objective of securing a stay.

The court considered proportionality, complexity, and reasonable litigation expectations in assessing quantum.

Although the successful party sought substantially higher partial indemnity costs, the award was reduced to reflect limited success on the more time-consuming stay arguments.

Partial indemnity costs of $12,000 were ordered payable within 30 days.

The defendants brought a motion under Rules 21 and 25 to strike portions of the plaintiff's statement of claim in a construction dispute.

The parties had previously executed minutes of settlement that released all claims except for a specific delay claim.

The court found that the plaintiff's claims extending beyond the delay claim were barred by the settlement release and struck them as an abuse of process.

The court also limited documentary discovery primarily to the period after the performance date.

The applicant sought costs on a full indemnity basis following a successful application to appoint a receiver in aid of execution.

The applicant argued that an earlier decision ordered costs of enforcement proceedings on a solicitor and client basis.

The court disagreed, finding the respondent took a reasonable legal position, and awarded partial indemnity costs of $10,000.

The court also rejected the applicant's proposed Commercial Court model receivership order, finding it overly complex for a simple receivership involving a modest debt and a single asset (a jointly owned home), and instead signed a simplified judgment.

The applicant sought the appointment of an equitable receiver to enforce costs orders totalling approximately $113,000 against the respondent.

The respondent's only known asset was an unencumbered home jointly owned with his wife.

After four unsuccessful attempts to sell the respondent's interest through the Sheriff, and the respondent's fraudulent attempt to defeat the sale, the applicant exhausted all ordinary legal remedies.

The court found the criteria for equitable execution were met and appointed a receiver with the power to commence proceedings under the Partition Act for the sale of the jointly-owned property.

The plaintiffs, judgment creditors of the defendant husband, sought to set aside the purchase and subsequent transfer of a residential property registered primarily in the defendant wife's name.

The court found numerous 'badges of fraud' and rejected the defendants' evidence that the wife solely funded the purchase.

Concluding that the husband contributed substantially to the purchase price through pooled family resources and corporate entities he controlled, the court held that the husband held an undivided one-half interest in the property and that the transfer of his interest to his wife was void as against his creditors under the Fraudulent Conveyances Act and the Bankruptcy and Insolvency Act.

Following a successful motion by former counsel for a charging order over settlement funds, the court addressed the costs of that motion.

The former counsel sought substantial indemnity costs, arguing the plaintiff unreasonably opposed the charging order and complicated a straightforward motion.

The plaintiff argued its conduct was reasonable and that only modest costs should be awarded.

The court held that the plaintiff’s conduct did not warrant substantial indemnity costs but justified partial indemnity costs.

Costs were therefore fixed at $7,994.11 payable by the plaintiff to former counsel.

The moving party, a sub-subcontractor, brought a motion for further and better documentary production from the responding party contractor in a construction lien action.

The court ordered the responding party to produce all payment certificates related to the main contract, finding them relevant to the delay claims raised in the counterclaim.

The court also enforced an agreement between the parties to produce emails in their native PST format rather than 'near native' format, applying the Sedona Canada Principles.

Finally, the court ordered that affidavits of documents be provided in electronic format (Word or Excel) to ensure meaningful access to the voluminous productions.

Following summary judgment dismissing the plaintiff’s claim against all defendants, the court addressed supplementary costs submissions from a defendant who did not participate in the summary judgment motion and from several third parties added to the litigation by defendants.

The court reviewed the discretionary framework for costs under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure.

While plaintiffs are generally not liable for costs incurred by third parties, the court noted that such costs may be ordered where the third party proceedings flowed naturally from the plaintiff’s claim.

The court awarded the non‑participating defendant partial indemnity costs and exercised its discretion to award approximately half of the third parties’ requested costs against the plaintiff.