William M. LeMay

This is a costs endorsement following an undefended trial in a family law matter.

The Applicant sought full recovery costs, arguing the Respondent's conduct amounted to bad faith, including evading service, failing to provide financial disclosure, and engaging in disturbing and malicious behaviour.

The Respondent contended his conduct did not reach the level of bad faith and that he was partially successful at trial.

The court found the Respondent's protracted and egregious conduct, including a "catch-me-if-you-can" approach to financial disclosure and malicious actions, met the test for bad faith, warranting an award of full recovery costs to the Applicant.

The court dismissed the Respondent's arguments regarding partial success and the Applicant's offers to settle.

The plaintiff, Anderson Sheet Metal Ltd., brought a summary judgment motion against the defendant, Comtract Air Compressors Inc., for unpaid invoices.

The central issue was whether an email exchange between the parties refreshed the two-year limitation period under the Limitations Act, 2002.

The court found that the email exchange constituted a clear and unequivocal acknowledgment of the debt for some, but not all, outstanding invoices.

The court also determined the appropriate interest rate for the successful claims.

The Respondent brought a motion to enforce a settlement agreement in a family law matter concerning the division of farm properties and assets.

The Applicant argued that no binding agreement existed due to missing essential terms, or alternatively, that the Respondent failed to carry out the terms.

The court found that a binding settlement had been reached, with the parties being ad idem on all essential terms, and that the Respondent had not failed to complete the transaction.

The Respondent's motion to enforce the settlement was granted, with specific modifications to the draft minutes of settlement regarding interest, property transfer to a third party, and a first charge.

This endorsement addresses the costs of a summary judgment motion and the underlying action, where the plaintiff's claims were dismissed.

The successful defendant sought substantial indemnity costs, arguing unsupported allegations of intentional misconduct and an early settlement offer.

The court rejected substantial indemnity, finding the allegations did not constitute fraud or dishonesty and that an early offer does not automatically warrant elevated costs.

Assessing costs on a partial indemnity basis, the court reduced the quantum sought by the defendant, citing the assignment of two senior lawyers to a moderately complex and relatively straightforward matter.

The court fixed costs at $15,000 inclusive of HST and disbursements.

The plaintiffs brought a medical malpractice action against an emergency room physician following the death of Elisha Shaw.

Ms. Shaw presented to the emergency room with severe abdominal pain radiating to her back, having previously undergone bariatric surgery.

The defendant physician discharged her without a surgical consult, despite her pain remaining unmanaged and a CT scan indicating a possible internal hernia.

Ms. Shaw returned to the hospital the next day, required emergency surgery for an ischemic bowel, and subsequently died.

The court found that the physician breached the standard of care by failing to request an urgent surgical consult and that this negligence caused Ms. Shaw's death, as earlier intervention would have prevented the bowel necrosis.

Damages were awarded to the estate and family members under the Family Law Act.

The plaintiff, Michael St. Jean Realty Inc. (SJR), a real estate brokerage, sued the defendant, Scarfone Hawkins LLP, alleging breach of trust, interference with economic relations, and detinue regarding unpaid commissions from condominium sales.

SJR claimed an agreement with the developer (467 Charlton Avenue Inc.) for commissions to be held in trust by Scarfone Hawkins LLP, which were then improperly disbursed to creditors.

Scarfone Hawkins LLP brought a motion for summary judgment seeking dismissal of SJR's claim.

The court granted the motion, dismissing SJR's action, finding no evidence of a specific trust created for SJR or that Scarfone Hawkins LLP was aware of such a trust or acted dishonestly in disbursing funds according to creditor directions.

Following a trial under the Simplified Rules where the plaintiffs' claims were dismissed and the defendants' counterclaims succeeded, the court determined the final damages calculations and costs.

The court held that the defendants, despite beating their Rule 49 offer to settle, were only entitled to partial indemnity costs because they were defendants with a counterclaim and the plaintiffs' conduct was not reprehensible.

After considering the Rule 57.01 factors, including the unnecessary complexity added by the plaintiffs' unsubstantiated fraud allegations, the court awarded the defendants $80,000 in costs.

This endorsement addresses the costs arising from a trial where the Plaintiff, 2599475 Ontario Inc., was successful in proving the cause of a truck engine failure.

The Plaintiff sought partial indemnity costs of $17,038.68, while the Defendant, 2549445 Ontario Inc. trading as House of Diesel, argued for a reduction, citing the Plaintiff's lower recovery than initially sought and the Defendant's partial success on damages and in resisting a summary judgment motion.

The court awarded the Plaintiff $15,000 in partial indemnity costs, finding the quantum generally reasonable but applying a modest reduction due to the Plaintiff having advanced duplicative and unjustified damage claims.

The court issued a final costs endorsement in a family law matter.

The respondent had successfully moved to set aside a previous order, which had included a full indemnity costs award against her.

The court reduced the original costs payable by the respondent from $12,000 to $6,000, finding her initial non-participation inadvertent.

However, the court denied the respondent's request for costs for her successful motion to set aside the order, ruling that she had received an "indulgence" for her oversight, which precluded her from recovering costs.

Ultimately, no costs were awarded to either party for the proceedings subsequent to the initial May 2021 order.

The Applicant sought substantial indemnity costs against the self-represented Respondent in complex estate litigation that had been case-managed for years.

The estate was simple, but the Respondent's conduct, including unsubstantiated allegations of fraud, repeated attempts to relitigate resolved issues, and delaying tactics, unnecessarily prolonged the proceedings.

The court found the Applicant almost entirely successful on substantive issues and determined that the Respondent's conduct was reprehensible, warranting an award of substantial indemnity costs.

The court rejected the Respondent's arguments that costs should be paid from the estate or that her self-represented status or disability should mitigate the award, finding her conduct abusive and meritless.

The appellant mother appealed a trial decision finding her three children in need of protection and placing them in extended Society care.

The trial judge also reduced the mother's access from weekly to bi-monthly.

The Divisional Court dismissed the appeal regarding the protection finding and disposition, finding no palpable and overriding error in the trial judge's assessment of the risks and the mother's plan.

However, the Court allowed the appeal regarding access, finding the trial judge erred in law by failing to give full effect to section 17 of the federal Act Respecting First Nations, Inuit and Metis Children, Youth and Families, which requires promoting ties to family for Indigenous children.

The access issue was remitted to the trial judge for reconsideration.

The applicant sought costs following a successful motion regarding custody and access.

The court considered whether the respondent acted in bad faith, if a "historic offer" to settle triggered enhanced costs, and the respondent's personal circumstances.

The court found no bad faith, that the offer did not trigger enhanced costs as it did not provide a path to unsupervised access, and that the respondent's unemployment did not warrant a reduction in costs.

The court awarded partial indemnity costs to the applicant and ruled that these costs were not enforceable by the Family Responsibility Office as support, given that support was not an issue before the court.

This is a costs endorsement following a series of motions where the defendants (Royal Bank of Canada and others) and a non-party law firm (LD Law) were largely successful against the plaintiff.

The motions concerned a recusal application, a privilege claim regarding a property transfer from the deceased's estate, and a motion to compel the estate trustee to pass accounts.

The court awarded partial indemnity costs to the defendants and full indemnity costs to LD Law, finding the plaintiff's positions meritless and contributing to litigation delay.

The plaintiff's claim of impecuniosity was rejected due to insufficient evidence and the principle that impecuniosity should not allow parties to disregard court rules with impunity.

The applicant sought judicial review of two decisions by the Information and Privacy Commissioner of Ontario denying him access to his son's personal health information held by a family services agency.

The applicant argued he was entitled to the records under the Divorce Act and various privacy statutes.

The Divisional Court dismissed the application, finding the adjudicator's decisions to be reasonable.

The court upheld the adjudicator's findings that the Divorce Act did not mandate disclosure and that the agency properly exercised its discretion in considering the best interests of the child and the applicant's motives.

The moving party brought a motion for leave to appeal the order of Shore J. dated March 21, 2023.

The Divisional Court denied the motion for leave to appeal and made no order as to costs.

The moving party brought a motion for leave to appeal the orders of the lower court judge.

The Divisional Court dismissed the motion for leave to appeal with no order as to costs.

The moving party brought motions for leave to appeal two orders of the lower court.

The Divisional Court granted leave to appeal specific paragraphs of the orders dated June 27, 2022, and November 29, 2022.

Costs of the motions were reserved to the panel hearing the appeal.

The plaintiff commercial trucking company sued the defendant repair shop after its truck suffered a catastrophic engine failure shortly after being repaired.

The court found that the defendant's mechanics negligently failed to install snap rings during the engine rebuild, constituting both a breach of contract and negligence.

The plaintiff was awarded $80,757.51 in damages, which included a refund of the repair costs, lease payments, and towing expenses.

However, the court reduced the plaintiff's $200,000 claim, finding a failure to mitigate damages because the plaintiff neither repaired the truck nor purchased a replacement to continue business operations.

In a final parenting motion following an OCL investigation, the court granted the applicant sole decision-making responsibility and limited the respondent's parenting time with the two younger children to supervised access centre visits, while leaving the eldest child's contact to his own discretion.

Applying the best interests of the child analysis under the Divorce Act, the court relied on evidence of family violence, inappropriate discipline, disparagement of the other parent, involvement of the children in adult conflict, and the respondent's lack of insight and incomplete compliance with recommended programming.

The court accepted the factual underpinnings of the OCL report, noting the respondent failed to properly challenge it under the Family Law Rules.

Any future move toward in-home supervised parenting time was conditioned on completion of specified courses and a period of successful supervised visits.

The plaintiff, Laelana Ali, sought damages for loss of competitive advantage (LOCA) following a bicycle-car collision where liability was admitted.

The defendants brought a non-suit motion and argued that the LOCA claim should not be put to the jury due to insufficient medical evidence.

The court dismissed both motions, finding that despite thin evidence, there was enough for the jury to judicially consider the LOCA claim, as such claims are less amenable to precise calculations and do not strictly require expert medical evidence if corroborated by other testimony.