Wendy M. Matheson

Following a judgment in favour of the plaintiff in a defamation action, the court determined the quantum of costs and pre-judgment interest.

The plaintiff sought substantial indemnity costs of approximately $121,000, while the defendant argued for partial indemnity costs of $30,000 to $40,000.

The court considered the plaintiff's offers to settle, post-judgment conduct, and the use of the simplified procedure, ultimately fixing costs at $65,000 for fees and $8,000 for disbursements.

The court also held that defamation is not a 'personal injury' for the purposes of the 5% pre-judgment interest rate under s. 128(2) of the Courts of Justice Act, and applied the default rate of 1.3%.

The plaintiffs moved for summary judgment seeking a declaration that the defendant insurance broker held $475,000 in trust for them.

The funds had been wired by the plaintiffs in support of an application to establish a captive insurance company, but were returned to the defendant after the application failed.

The defendant attempted to retain the funds as an equitable set-off against the substantial debts of a third-party company, mistakenly believing the funds belonged to that third party.

The court found that the funds belonged solely to the plaintiffs and that the defendant failed to establish any basis for equitable set-off.

The motion was granted and the funds were ordered returned.

The applicants sought declarations that contractor respondents and their CGL insurers owed duties to defend and indemnify them for legal costs arising from third party claims in underlying vaccine spoilage litigation.

The court held that, for a duty to defend analysis involving third party claims, the statement of claim and the relevant third party claims must be read together.

Applying the pleadings rule and the mere possibility of coverage standard, the court found that three insurer respondents owed a duty to defend, but only with respect to the negligence-based vendor and service-provider claims, not the distinct claims concerning the applicants' own contractual representations and warehouse operations.

The service contracts did not themselves impose a separate contractual duty to defend, only indemnity obligations.

Defence responsibility for the covered category was apportioned equally among the three insurers, and independent counsel was required due to conflict.

Following dismissal of the plaintiff's action for slander, malicious prosecution and intentional infliction of mental distress arising from an arrest and stayed charges, the successful defendants sought partial indemnity costs of about $40,000.

Applying the Rule 57.01 factors, the court reduced the claimed amount, noting the relatively short trial, the constructive conduct of the self-represented plaintiff, and expansion of the defendants' witness list beyond the pre-trial disclosures.

The court awarded the defendants $20,000 all inclusive on a partial indemnity basis.

The plaintiff was granted up to twelve months to pay.

This was a costs endorsement following motions arising from a dispute over the sale of a joint venture and a related arbitration.

The plaintiff had sought summary judgment for more than $30 million, while the defendants brought a Rule 21 motion alleging res judicata and abuse of process and alternatively seeking a stay in favour of arbitration.

After the court rejected the res judicata and abuse of process arguments but granted a stay pending arbitration, both sides sought costs.

Applying the Rule 57.01 factors and considering the divided success, the complexity of the proceedings, and the unreasonably high amount claimed, the court made no order as to costs.

The appellant appealed two Consent and Capacity Board decisions confirming incapacity to consent to treatment and renewing a Community Treatment Order.

Applying the reasonableness standard to the predominantly factual issues, the court held that the Board reasonably found the appellant could understand treatment information but could not appreciate the reasonably foreseeable consequences of refusing treatment.

The court also held that the Board reasonably found compliance with the statutory requirements for CTO renewal under the Mental Health Act, including the provision of required documents, consultation on the treatment plan, physician assessment, and substitute decision-maker consent.

Both appeals were dismissed.

Following the sale and dissolution of a mass spectrometry joint venture, the plaintiff sued for approximately half of alleged profits arising from deferred service contracts transferred to a third party.

The defendants argued the claim was barred by the prior arbitration concerning a separate inventory issue, or alternatively had to proceed to arbitration under a dispute resolution agreement governed by foreign law.

The court held that neither issue estoppel nor cause of action estoppel applied because the deferred service contract issue was expressly kept out of the earlier arbitration.

Applying the competence-competence principle, and in light of conflicting expert evidence on U.S. and New York law, the court found it was at least arguable that the dispute fell within the arbitration clause and stayed the action pending arbitration.

Following dismissal of a civil action after a fourteen‑day trial, the successful defendant sought approximately $52,000 in partial indemnity costs.

The self‑represented plaintiff opposed the request and sought costs against the defendant, alleging improper litigation conduct and asserting the defendant had misled him regarding limitation periods and settlement opportunities.

The court rejected the argument that the defendant’s conduct justified denying costs, confirming that a defendant has no obligation to provide legal advice or extend limitation periods for negotiation.

However, the court found certain defence litigation choices increased trial inefficiencies and contributed to unnecessary costs.

Applying the factors in Rule 57.01 of the Rules of Civil Procedure, the court substantially reduced the amount claimed and fixed costs payable to the defendant at $25,000.

The plaintiff brought a civil action for slander, malicious prosecution, and intentional infliction of mental suffering arising from his arrest at a cheque‑cashing store after attempting to cash a cheque that store staff believed to be fraudulent.

The court found that although defamatory words were communicated to police and employees, the statements were protected by qualified privilege and there was no proof of malice.

The malicious prosecution claim failed because the defendant did not initiate the prosecution and reasonable and probable grounds existed for the police investigation and charges.

The claim for intentional infliction of mental suffering also failed because the defendant’s conduct was not flagrant or outrageous and causation of the plaintiff’s psychiatric condition was not established.

In addition, the claim was statute‑barred under the Limitations Act, 2002 because the plaintiff did not prove incapacity to suspend the limitation period.

The plaintiff, a law student, sued the defendant, a blogger and political commentator, for defamation arising from nine blog posts.

The posts related to a British Columbia Human Rights Tribunal hearing involving Maclean's magazine, where the plaintiff testified.

The defendant repeatedly called the plaintiff a 'liar' and an 'anti-Semite' in his posts.

The court found the words were defamatory and that the defences of justification, fair comment, and qualified privilege failed, largely due to factual inaccuracies and the defendant's express malice toward the plaintiff's perceived associate.

The court awarded the plaintiff $50,000 in general damages and $30,000 in aggravated damages, and ordered the removal of the defamatory words from the defendant's website.

Following dismissal of an action as frivolous, vexatious, and an abuse of process, the successful defendant sought costs of the motion and the action.

The defendant requested $18,764.26 on a full indemnity basis, citing the extensive volume of materials filed by the self‑represented plaintiff and relying on prior authority addressing cost awards in similar circumstances.

The plaintiff filed communications but did not provide formal written costs submissions.

Applying the factors in Rule 57.01 of the Rules of Civil Procedure, the court awarded the defendant reduced costs of $12,500 all‑inclusive.

The plaintiff was ordered to pay that amount to the defendant.

The plaintiff brought an action against his automobile insurer alleging breach of contract and bad faith in relation to compensation for damage to his vehicle and loss of its contents following a 2000 collision.

The insurer had paid for the vehicle loss but disputed further amounts and relied on a contractual one‑year limitation period under the Ontario Automobile Policy (O.A.P. 1).

The court found that the plaintiff failed to prove a higher value for the vehicle and failed to establish the value or presence of most claimed contents.

Although the court determined that the insurer’s fault assessment should have been lower, resulting in a small additional deductible return, the claim was nonetheless barred by the one‑year contractual limitation period.

Allegations of bad faith and claims for punitive damages were rejected for lack of evidence of high‑handed or reprehensible conduct.

Investors in real estate development projects brought an oppression application under ss. 161 and 248 of the Business Corporations Act seeking, among other relief, the appointment of an inspector to investigate the use of investor funds.

The evidence showed project funds had been commingled in a separate entity rather than segregated as investors had been led to expect, financial disclosure was deficient, audited financial statements were unavailable, and a dividend was withheld from one preferred shareholder.

The court held that these circumstances raised a prima facie case that reasonable security holder expectations had been defeated and that oppressive conduct may have occurred.

The court ordered the appointment of a court‑appointed inspector and granted additional relief including payment of an unpaid dividend, redemption of preferred shares, and production of a shareholder list.

A charitable foundation appealed a decision of the Minister of Revenue denying a refund of retail sales tax paid on prepared food products served at fundraising events where attendees paid a single ticket price.

The dispute concerned whether food provided at such events was supplied “without specific charge” under s. 12 of Regulation 1012 made under the Retail Sales Tax Act.

The court applied modern principles of statutory interpretation and concluded that the phrase requires a distinct charge for the food itself, not merely that food costs be embedded within a bundled event price.

Because the ticket price for the events did not itemize or separately allocate a charge for the prepared food products, the food was provided “without specific charge.” The foundation was therefore entitled to the exemption and the requested refund.

The applicant sought a declaration that a 1991 default judgment against him was discharged by his bankruptcy and absolute discharge later that same year.

The respondent argued the debt survived under s. 178(1)(d) of the Bankruptcy and Insolvency Act because it allegedly arose from misappropriation of trust funds under the Construction Lien Act.

The court held that the default judgment, obtained from the registrar on unpaid invoices, did not incorporate a finding of breach of trust and that the pleadings and deemed admissions were insufficient to establish misappropriation.

The court also declined to vary or amend the judgment under Rules 19.08 or 59.06 or order a trial of the issue, citing delay and prejudice caused by the loss of records and witnesses over more than two decades.

The court declared that the debt was discharged by the applicant’s bankruptcy.

The moving defendants brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike the statement of claim for disclosing no reasonable cause of action.

The self-represented plaintiff alleged defamation, conspiracy, harassment, and mental distress arising from a commercial lease dispute and related litigation.

The court held that the pleadings failed to properly plead the elements of any recognized cause of action and consisted largely of vague and conclusory allegations.

The claim against the moving defendants was struck as it was plain and obvious that it disclosed no reasonable cause of action.

However, the plaintiff was granted leave to amend the statement of claim within 45 days.

The defendants moved for a stay of a civil action on the basis of an arbitration clause contained in a later energy supply agreement, or alternatively sought an extension of time to deliver a statement of defence.

The plaintiff alleged that the agreements were void and sought damages for negligent or fraudulent misrepresentation relating to the formation of the contracts, asserting that the agreements were not authorized and were based on misrepresentations regarding energy savings.

The court held that the arbitration clause applied only to disputes “under” the agreement and did not encompass a challenge to the existence or validity of the agreement itself.

As the dispute concerned the validity of the agreements rather than performance under them, it fell outside the scope of the arbitration clause.

The motion to stay the action was therefore dismissed, though the defendants were granted additional time to deliver their statements of defence.

The plaintiff brought a motion seeking leave to note the Crown in default and obtain default judgment after alleging that the defendant failed to deliver a statement of defence.

The court considered whether the plaintiff complied with the notice requirement in s. 7(1) of the Proceedings Against the Crown Act, which requires that notice of claim be served at least 60 days before commencing an action.

The court held that an action is commenced when the statement of claim is issued, not when it is served.

Because the claim was issued before the required notice period elapsed, the proceeding was a nullity and the statutory precondition to suing the Crown was not met.

In addition, the Crown had delivered a statement of defence before being noted in default, meaning it was not in default in any event.

The defendants moved for summary judgment dismissing a personal injury action arising from a motor vehicle accident, arguing the claim was barred by s. 267.6 of the Insurance Act because the plaintiff’s automobile insurance was retroactively voided by the insurer after the accident.

The court considered whether the plaintiff was contravening s. 2(1) of the Compulsory Automobile Insurance Act at the time of the accident.

The evidence showed the vehicle was insured on the date of the collision and the insurer confirmed coverage shortly afterward before later voiding the policy retroactively.

The court held that the statutory bar applies only where the vehicle was uninsured at the time of the incident.

A retroactive voiding of insurance after the accident did not establish that the vehicle was uninsured at the relevant time.

The plaintiff brought a motion for partial summary judgment alleging civil fraud arising from altered trust ledger statements relating to land transfer tax amounts in three condominium transactions.

The moving party alleged the defendant misrepresented tax amounts, resulting in a $40,000 discrepancy and sought damages, tracing, and disgorgement.

The court found that the defendant had made a false representation and knew it was false, but determined that the plaintiff failed to establish the required element of loss because the $40,000 had been repaid pursuant to a certified cheque delivered in connection with criminal proceedings.

As a result, the claim for repayment of the $40,000 could not succeed on summary judgment.

Remaining claims, including disgorgement and related relief, were left to be determined at trial.