Victoria R. Chiappetta

The defendant moved to dismiss a construction lien action on the basis that the plaintiff lacked legal capacity to commence it.

The court held that the individual who directed the corporation to register the lien and instruct counsel was an undischarged bankrupt, that his shares had vested in his trustee in bankruptcy, and that the corporation had been without any directors for four years.

Although the corporation remained a separate legal person, the court found it plain and obvious that its officer lacked delegated authority to commence the proceeding and that only the trustee, as beneficial owner, could have authorized the litigation or ratified it.

Because the trustee neither authorized nor ratified the proceeding, the claim was a nullity and was dismissed as an abuse of process.

Following the dismissal of an oppression remedy application, the respondents sought substantial indemnity costs.

They argued that the application was the applicant's second unwarranted one on similar facts and that a comprehensive settlement offer, made after judicial mediation, was rejected.

The court declined to award substantial indemnity costs for the entire proceeding but found it fair and reasonable to award substantial indemnity costs from April 25, 2019, the date of the settlement offer.

The offer was deemed more favourable to the applicant than the outcome of the contested application, and no formal counter-offer was made.

The respondents were awarded fixed costs of $66,148.84 inclusive.

The applicant, a one-third shareholder, sought an oppression remedy under the OBCA to compel the sale of the corporation's sole asset (a property) or the purchase of his shares, due to a disagreement with the majority shareholders (the respondents) who also owned the tenant restaurant.

The court dismissed the application, finding no oppressive or unfair conduct, and that the respondents' business judgment was within a reasonable range.

The court emphasized the absence of a unanimous shareholder agreement and that mere disagreement does not amount to oppression or warrant winding up.

Following a trial where the respondent was completely successful, the respondent sought costs on a substantial indemnity basis.

The court declined to award substantial indemnity costs, finding no bad faith or unreasonable conduct by the appellants.

Applying the factors under Rule 57.01 and section 131 of the Courts of Justice Act, the court fixed costs on a partial indemnity basis at $79,000, finding this to be a fair and reasonable amount.

The mother brought a motion to change a final shared custody order, seeking sole custody and permission to relocate the children from Sault Ste.

Marie to Cold Lake, Alberta.

The father opposed the relocation and sought sole custody.

The court found a material change in circumstances due to the parents' high conflict and inability to co-parent.

The court dismissed the mother's request to relocate, finding it was not in the children's best interests to be removed from their established routines and their father's regular involvement.

The court declined to award sole custody to either parent to avoid exacerbating the conflict, but granted the father final decision-making authority on major medical, educational, and religious issues, and ordered that the children reside primarily with the father.

The mother was ordered to pay child support based on an imputed income.

The appellant, acting as estate trustee for the late Sophia De Jonge, appealed the disallowance of a property claim by the bankruptcy trustee of the estate of Jeffrey Wilson.

Jeffrey, who was the executor of Sophia's estate, had transferred real property to himself without satisfying a significant tax liability owed by Sophia's estate.

Jeffrey subsequently died bankrupt.

The court found that Jeffrey breached his fiduciary duty as executor by failing to pay the estate's debts before distributing assets to himself.

The court imposed a constructive trust over the real property in favour of Sophia's estate to remedy the unjust enrichment of Jeffrey's bankrupt estate, allowing the appellant to trace the beneficial interest into the net sale proceeds.

The Landlord, Medallion Corporation, appealed the Trustee's disallowance of its unsecured claim for damages related to the unexpired portion of a commercial lease following the tenant's bankruptcy and the Trustee's disclaimer.

The court affirmed the long-standing Ontario legal principle that a trustee's disclaimer of a lease in bankruptcy is deemed a consensual surrender, which extinguishes the tenant's obligations and precludes the landlord from claiming unsecured damages for the unexpired term beyond the preferred claim under the Bankruptcy and Insolvency Act and Commercial Tenancies Act.

The appeal was dismissed.

The appellants appealed the disallowance of their claims in a bankruptcy proposal proceeding.

They claimed a 20% beneficial interest in the proceeds of a commercial property sale based on an amended trust declaration, and advanced an unsecured claim for damages alleging oppressive conduct.

The court dismissed the appeal, finding no certainty of intention to create an express trust, no basis for a constructive trust, and no evidence of oppressive conduct by the bankrupt corporation.

Following the dismissal of the plaintiff's action against the Toronto Police Services Board and two officers for alleged gratuitous assault and conspiracy, the defendants sought costs of $77,906.58 on a partial indemnity scale.

The court considered the complexity of the issues, the significant monetary claim, the importance of the matter to the officers, and the self-represented plaintiff's limited ability to pay.

Balancing these factors, the court fixed costs at $50,000 inclusive, payable by the plaintiff.

Following a successful 11-day trial where the plaintiff was awarded $604,627.09 and the defendant's $1.75 million counterclaim was dismissed, the plaintiff sought substantial indemnity costs of $546,684.73.

The defendant argued for a reduced award of $200,000, claiming the plaintiff's costs were unreasonable.

The court awarded the plaintiff the full amount claimed, finding the costs proportionate to the result, justified by the defendant's unfounded fraud allegations, litigation misconduct (including refusal to admit facts, late disclosure, and causing trial delays), and the complexity introduced by the counterclaim.

The court also noted the plaintiff's counsel's superior preparedness compared to the defendant's.

This endorsement concerns the determination of costs following a settlement of a tort action for $200,000.

The plaintiff sought $190,605.74 in costs, including fees for accident benefit arbitration.

The court fixed costs at $145,605.75, reducing the tort claim costs due to proportionality and allowing a portion of accident benefit legal costs to be recovered from the tort defendant, as the defendant benefited from the plaintiff's efforts in securing those benefits.

The court also rejected the defendant's argument to limit costs based on an earlier Rule 49 offer, finding the settlement agreement for costs was unrestricted.

The plaintiff was allegedly injured in a bus accident involving an unidentified motorist.

She sought to amend her statement of claim to add TTC Insurance Company Limited (TTCICL) as a defendant for unidentified motorist coverage under s. 265 of the Insurance Act.

TTCICL argued the claim was statute-barred by the Limitations Act, 2002.

The court held that the limitation period for a claim against an insurer for unidentified motorist coverage begins to run on the day after the plaintiff makes an indemnification demand which the insurer fails to satisfy.

As the plaintiff brought her motion to add TTCICL as a defendant before making such a demand that TTCICL failed to satisfy, the limitation period had not expired.

The motion to amend was granted.

Following a simplified procedure trial where the plaintiff was awarded $69,091.12, the plaintiff sought costs of $26,198.65.

The court, considering the principle of proportionality and factors under Rule 57.01(1) of the Rules of Civil Procedure, found the requested costs excessive for a non-complicated case.

The court exercised its discretion under section 131 of the Courts of Justice Act to fix costs at $15,000 inclusive.

The Applicant sought costs following a motion for contempt, which was dismissed because the Respondent's non-compliance with a prior order was partly due to the Applicant's inaccurate documentation.

The Applicant requested costs on a substantial or partial indemnity scale, while the Respondent sought costs against the Applicant for alleged misconduct.

The court, applying Rule 57.01(1) and (2) of the Rules of Civil Procedure, found no conduct by the Applicant warranting costs against it, but also determined that the Applicant was not entitled to costs due to its own contribution to the dispute.

Consequently, the court exercised its discretion to make no costs award on the application.

The plaintiff sued the Toronto Police Services Board and two constables for damages, alleging excessive force during arrest and negligent investigation.

The court dismissed the claim in its entirety, finding that the force used by the constables was justified under s. 25 of the Criminal Code and that their investigation met the applicable standard of care, as there were reasonable and probable grounds for the arrest.

The court found the plaintiff's testimony lacked credibility and that his claims of injury and loss of income were not substantiated by the evidence.

The plaintiff, a dental hygienist, was employed by the defendant's dental practice for 19 years.

During her employment, the employer restructured its business entities and required the plaintiff to sign three successive employment contracts, each attempting to limit her termination entitlements to the minimums under the Employment Standards Act, 2000.

Upon her termination without cause, the plaintiff sued for wrongful dismissal.

The court held that the plaintiff's employment was continuous despite the corporate restructuring and that the employment contracts were unenforceable for lack of fresh consideration.

The court awarded the plaintiff 15 months' reasonable notice at common law, less amounts mitigated.

Following the defendant's unsuccessful motion to transfer and consolidate the action, the successful plaintiff sought costs of $7,082.73 on a partial indemnity basis.

The defendant argued costs should be in the cause or parties should bear their own costs.

The court rejected the defendant's arguments, finding the plaintiff entitled to costs payable forthwith.

Applying the factors under Rule 57.01(1) of the Rules of Civil Procedure, the court fixed the plaintiff's costs at $6,000 inclusive.

A senior executive sued for wrongful dismissal after being terminated for alleged financial fraud, while the employer counterclaimed in civil fraud, unjust enrichment, and breach of fiduciary duty arising from accounting treatment, inventory reserves, and intercompany transfers.

The court found the employer failed to prove the alleged dishonest conduct, failed to substantiate its fraud theory through direct witnesses or documentary support, and did not establish just cause.

Applying the Bardal factors, the court fixed reasonable notice at 19 months and awarded salary, bonus, benefits, RRSP contributions, punitive damages, and moral damages.

The counterclaims for civil fraud and unjust enrichment were dismissed.

The defendants brought a motion to transfer the action from Newmarket to Toronto to be heard immediately after a related action commenced by the plaintiff in Toronto.

The court dismissed the motion, finding that transferring the action would delay the Toronto action, which was already set down for trial.

The court noted the plaintiff's advanced age and the fact that she had been financing the Toronto litigation for five years.

The court held that the plaintiff's choice of venue was entitled to deference and there was no risk of inconsistent findings.

The plaintiff brought an action for defamation after the defendant disseminated anonymous allegations.

The parties settled the action for $10,000 in damages, leaving costs to be determined by the court.

The plaintiff sought full or substantial indemnity costs, relying on a Rule 49 offer to settle.

The court found the settlement was less favourable than the offer and awarded partial indemnity costs.

Costs were fixed at $44,446.26, with the court noting that costs in defamation matters often exceed damages.