Wendy M. Matheson

The defendant, Ontario Electricity Financial Corporation (OEFC), moved for summary judgment to dismiss the plaintiff, The Power Limited Partnership's (PLP), claims of negligent misrepresentation, dishonest contract performance, and breach of a 2005 power purchase agreement (PPA).

The claims stemmed from the negotiation and execution of a 1999 PPA and a subsequent 2005 PPA, particularly concerning whether Order in Council (OIC) approval was required for the 1999 PPA and alleged concealment of its execution.

The court granted summary judgment, dismissing all claims.

It found no contractual obligation to support the bad faith claim, no deliberate dishonesty or negligence in misrepresentation, and that the 2005 PPA's entire agreement clause excluded prior representations.

Furthermore, the court determined that OIC approval was legally required for the 1999 PPA and that the claims were statute-barred by the applicable limitation periods.

The claims related to the 2005 PPA regarding occasional payment rates, capacity caps, and monthly targets were also dismissed based on clear contractual terms and lack of grounds for rectification.

The applicant, an umbrella insurer, sought reimbursement from the respondent, the primary insurer, for defence costs incurred in a U.S. trademark infringement lawsuit against their mutual insured.

The respondent had denied coverage based on "expected or intended advertising injury" and "intellectual property law or right" exclusions.

The court found that trademark infringement does not necessarily require intent to injure, and the claim included allegations of unintentional conduct.

It also determined that the intellectual property exclusion did not clearly apply because the advertising injury claim was a free-standing claim separate from other intellectual property claims.

The court concluded that the exclusions did not clearly and unambiguously preclude coverage, thus triggering the respondent's duty to defend.

The applicant lawyer sought to set aside an arbitral award that upheld LawPRO's decision to settle a claim against her without her consent.

The applicant argued she was denied procedural fairness under section 19 of the Arbitration Act because the arbitrator refused her request for an adjournment and allegedly forced LawPRO's preferred procedural approach on her.

The court found that the arbitrator properly exercised his discretion in denying the adjournment and that the applicant was not treated unfairly.

The application was dismissed.

The insured drove a snowmobile after consuming alcohol to rescue a friend who was lost on a frozen lake.

The insured held a valid driver's licence but was in breach of a probation order prohibiting him from driving with alcohol in his blood.

Following an accident that seriously injured the friend, the insured's automobile insurer denied coverage, arguing he was not 'authorized by law to drive' under statutory condition 4.

The court held that 'authorized by law' refers to the possession of and compliance with a valid driver's licence, not court orders or legislative prohibitions.

The insurer was ordered to provide full coverage.

The plaintiff contractor sued for unpaid extras on a home renovation project, while the defendant homeowners counterclaimed for deficient and incomplete work, and alleged unfair practices under the Consumer Protection Act.

The court granted the defendants leave to amend their counterclaim to increase the amount and rely on the CPA.

The court found that most of the plaintiff's claimed extras were not part of the original contract and, despite the lack of written agreements as required by the CPA, it would be inequitable for the defendants to benefit without payment, applying s. 93(2) of the CPA.

The court also found some deficiencies in the plaintiff's work and awarded damages to the defendants, but dismissed their claims of unfair practices under the CPA and their personal claim against the contractor's principal.

Damages were set off, resulting in a net judgment for the plaintiff.

L.W. appealed a Consent and Capacity Board decision that confirmed a finding of incapacity to consent to treatment with antipsychotic medication.

The Superior Court of Justice allowed the appeal, finding the Board's decision unreasonable due to insufficient medical evidence regarding L.W.'s capacity at the time of the hearing and the Board's failure to address the corroboration requirement for the physician's opinion.

While the court upheld the Board's discretionary decision to refuse an adjournment, it ultimately set aside the Board's finding of incapacity and ordered a new hearing before a differently constituted panel based on an updated record.

This costs endorsement follows a hybrid trial where the applicants were largely successful against several respondents concerning an invalid power of sale, but unsuccessful against Ginkgo Mortgage Investment Corporation.

The court awarded partial indemnity costs to the applicants against the unsuccessful respondents, with a several order for payment.

The court also fixed partial indemnity costs payable by the applicants to Ginkgo, declining to issue a Sanderson order after applying the two-step test.

Following a trial where the plaintiffs were unsuccessful in setting aside a conveyance of the family home, the successful defendants sought costs.

The plaintiffs argued no costs should be awarded or that the Estate should pay.

The court awarded the successful defendant grandson $15,000 in partial indemnity costs, noting the plaintiffs chose to proceed to trial after discovery.

The self-represented defendant was awarded no costs due to lack of documentation.

The request for a non-party costs order against the Estate was dismissed.

The applicant sought costs following a 12-day family law trial where there was divided success.

The applicant claimed costs on a full recovery basis, alleging the respondent acted in bad faith regarding financial disclosure and purported loans.

The court found the respondent's conduct came close to bad faith but was driven by self-interest rather than a devious intent to harm, thus rejecting the claim for full recovery costs.

Considering the divided success, the respondent's poor conduct, and a partially successful offer to settle by the respondent, the court fixed costs payable to the applicant at $20,000.

No costs were awarded for earlier urgent motions.

The plaintiff estate trustee brought an action regarding the proceeds from the sale of a property jointly developed by the deceased and the defendant, her former common-law partner.

The defendant relied on a cohabitation agreement that provided property division would be determined solely by legal ownership.

The plaintiff relied on a subsequent oral property development agreement, confirmed in writing by the defendant, that provided for the return of investments and equal sharing of profits.

The court found that neither party understood the cohabitation agreement to apply to their property development activities and set it aside in part under s. 56(4) of the Family Law Act.

The court awarded the plaintiff $3,145,682.88 based on the property development agreement.

Following a successful appeal that reinstated spousal support payments, the appellant sought costs of the appeal and the original motion on a substantial indemnity basis.

The court found no bad faith conduct by the respondent but awarded substantial indemnity costs from the date of the appellant's more favourable offer to settle.

Noting that the claimed costs of over $116,000 were disproportionate and lacked detailed dockets, the court reduced the fees to account for duplication of effort.

Costs were fixed at $85,727.14 inclusive of disbursements and HST.

Following a trial where the self-represented plaintiff was awarded $400,000 USD, the court determined outstanding issues of interest, exchange rate, and costs.

The court exercised its discretion to reduce the prejudgment interest rate to 2.25% and the period to seven years due to market fluctuations and delay.

The court declined to depart from the default currency conversion date under the Courts of Justice Act.

Costs were fixed at $23,000 all-inclusive.

In this divorce application, the parties sought sole custody of their young child, equalization of net family property, and spousal and child support.

The respondent father argued the applicant mother's mental illness rendered her unfit for sole custody, while the mother raised concerns about parental alienation by the father's family.

The court ordered a shared parenting arrangement with divided decision-making authority, finding the mother's mental health was stable and posed no risk.

For equalization, the court found that $176,000 advanced to the father by his own father were gifts, not loans, resulting in an equalization payment of $114,261.02 to the mother.

Claims for spousal and child support were dismissed after imputing income to both parties.

The plaintiffs sought to set aside the conveyance of their deceased father's family home to himself and his grandson as joint tenants, arguing resulting trust and undue influence.

The court found that the presumption of resulting trust applied to the transfer to the adult grandson, but it was rebutted by evidence showing the grandfather intended the transfer as a gift to reward the grandson for financially saving the house from power of sale proceedings.

The court also found no express undue influence and that any presumption of undue influence was rebutted by the grandfather's clear, independent intentions.

The action was dismissed.

The self-represented plaintiffs moved to consolidate a Rule 7.08 settlement approval motion, brought by the Public Guardian and Trustee on behalf of a co-plaintiff under disability, with the upcoming trial.

The court dismissed the motion, holding that Rule 6 only permits consolidation of 'proceedings', and a motion is not a proceeding.

Furthermore, the court noted that consolidation would be inappropriate as it would expose the trial judge to privileged settlement information, prejudicing the plaintiffs.

The court also ordered the sealing of an affidavit containing privileged settlement details.

The plaintiff financial consultant claimed a contractual fee after introducing a venture capital investor that later funded the defendant technology company.

The defendant argued the consulting agreement had expired and that the ultimate investing entity was not the approved investor listed in the agreement.

The court found the agreement had been orally extended and subsequently confirmed in writing through email exchanges and a letter, satisfying the contract’s amendment clause.

It further held that the approved investor name encompassed the venture capital business that ultimately invested, despite differences in the precise legal entities used.

The defendant breached the agreement by refusing to pay the contractual 4% fee after the financing closed within the extended tail period.

In a supplementary costs endorsement following trial, the plaintiff requested that the fixing or payment of costs be delayed pending the outcome of separate related litigation involving the same defendant.

The plaintiff argued that potential success in the other action might result in a set-off or divided success between the parties.

The court held that the speculative possibility of future set-off in separate litigation did not justify delaying payment of costs for years.

The court declined to exercise its discretion to defer the obligation to pay costs and noted that a stay motion would have been the more appropriate procedural mechanism if such relief were sought.

Following a successful motion by the respondent to set aside a Mareva injunction, the court determined the appropriate scale and quantum of costs.

The respondent sought substantial indemnity costs of $138,144.10, while the applicant argued for partial indemnity costs of $55,000.

The court found no conduct justifying substantial indemnity costs and awarded partial indemnity costs fixed at $75,000 for fees plus disbursements, considering the complexity and the large amount at stake.

Following a trial decision dismissing a claim for unpaid royalties under a patent licence agreement, the successful defendant sought partial indemnity costs exceeding $637,000.

The plaintiff accepted entitlement to costs but argued the claim was excessive relative to the scope of the litigation and its own costs.

Applying Rule 57.01 of the Rules of Civil Procedure and the principles in Boucher, the court assessed factors including the complexity of the dispute, the importance of the issues, the parties’ expectations, and the reasonableness of the hours and disbursements claimed.

The court found the defendant’s claimed hours were very high compared to the nature of the four‑day trial and reduced certain disbursements.

Costs were fixed at $300,000 for fees and $90,000 for disbursements, plus HST.

Following the breakdown of their 12-year common law relationship, the applicant and respondent disputed property division, spousal support, child support, and travel consent for their children.

The court found that while the parties were engaged in a joint family venture, there was no unjust enrichment, and dismissed the trust claims regarding two properties, leaving title as is.

The court imputed an income of $50,000 to the respondent, ordering the applicant to pay $2,440 per month in spousal support for four years, and the respondent to pay $743 per month in child support.

The court also established a protocol for obtaining children's government documents and travel consent.