W. U. Tausendfreund

Costs decision following a property dispute in which both parties claimed title to a cottage.

The plaintiff advanced claims based on proprietary estoppel and unjust enrichment, while the defendant estate sought clear title.

The trial judgment granted the plaintiff a 15‑year licence to use the property, producing a mixed outcome.

In determining costs, the court considered proportionality and the factors under s.131(1) of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, as well as settlement offers that did not engage Rule 49.

Finding the plaintiff was more successful overall, the court ordered the defendant estate to pay the plaintiff fixed costs of $50,000 all‑inclusive.

A construction company sued its former bookkeeper for misappropriating corporate funds through unauthorized cheques, debit card withdrawals, and credit card purchases.

The defendant argued the funds represented unpaid salary based on a verbal agreement for $60,000 per year, but the court rejected this claim, finding she was paid hourly and lacked authorization to access corporate funds for personal use.

The court concluded the defendant breached her fiduciary duties and committed fraud by systematically diverting corporate funds for personal benefit over several years.

Judgment was awarded for the full amount of misappropriated funds and punitive damages were granted.

The court further held the debt would survive any bankruptcy discharge pursuant to s. 178(1)(d) of the Bankruptcy and Insolvency Act.

Following a trial judgment awarding damages to the plaintiff mortgage insurer arising from fraudulent misrepresentations in a mortgage application, the court determined the appropriate costs award.

The plaintiff sought full reimbursement of legal fees exceeding $90,000 on the basis that the action involved proven fraud.

The court acknowledged that fraudulent conduct may justify substantial indemnity costs and emphasized the need for strong judicial condemnation of fraud.

However, the court considered mitigating circumstances including the defendant’s limited role in the broader scheme, bankruptcy status, and lack of financial means.

Balancing these factors, the court awarded reduced costs of $50,000 inclusive of disbursements and HST.

The plaintiff sought damages arising from alleged fraudulent misrepresentations made in a mortgage application insured by the plaintiff.

The defendant denied responsibility and claimed she had merely agreed to co‑sign for another person and was herself a victim of a fraud.

After hearing testimony from bank employees, a collections agent, and the defendant, the court found the defendant’s evidence uncorroborated and inconsistent with documentary evidence and surrounding circumstances.

The court concluded the defendant knowingly made false representations concerning her employment, income, down payment, and intention to occupy the property in order to obtain mortgage financing and insurance approval.

The lender relied on those misrepresentations and suffered loss after the mortgage defaulted and the property was sold under power of sale.

Judgment was granted to the plaintiff for the amount paid under the insurance indemnity, with interest and costs, and the debt was held to survive the defendant’s bankruptcy under the Bankruptcy and Insolvency Act.

Following a successful insurance coverage application establishing that the insurer owed a duty to defend the insured in an underlying action, the parties were unable to agree on costs.

The insured sought full indemnity costs, while the insurer argued that such costs should be reserved for exceptional circumstances.

The court held that where an insurer wrongfully refuses to defend and the insured must bring a declaratory application to establish the duty to defend, the contractual nature of the insurance relationship justifies substantial or full indemnity costs.

The court concluded the insured should be made financially whole for bringing the application and awarded reasonable full indemnity costs.

The moving party railway company brought an application for certiorari to quash a ruling of a justice of the peace in ongoing Provincial Offences Act proceedings.

The justice of the peace had dismissed a constitutional motion alleging that a municipal property standards order issued under the Building Code Act conflicted with the federal Heritage Railway Stations Protection Act under the doctrine of federal paramountcy.

The Superior Court held that the ruling was made during the course of trial and that the justice of the peace had jurisdiction to determine the constitutional issue.

Because an adequate appellate remedy existed after trial and no substantial wrong or miscarriage of justice was demonstrated, prerogative relief was inappropriate.

The application for certiorari was therefore dismissed and the trial ordered to continue.

The plaintiff brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside an administrative order dismissing the action as abandoned pursuant to Rule 48.15(1).

The court applied the four‑factor test from Reid v. Dow Corning Corp., considering explanation for delay, intention to proceed, promptness of the motion, and prejudice to the defendant.

The court found the delay was largely attributable to procedural missteps and indulgences between counsel, and that the plaintiff had always intended to proceed with the action.

The defendant failed to demonstrate actual prejudice arising from the delay.

The administrative dismissal order was therefore set aside and no costs were awarded.

The plaintiffs brought an action against the estate of their 'grandfather' figure, Gus Sorkos, seeking to enforce an oral agreement made in 1985.

Under the agreement, the plaintiffs provided unpaid labour to maintain the deceased's farm and cottage properties for over 25 years in exchange for his promise to leave them the properties in his will.

The deceased later changed his will, leaving the properties to others.

The court found the oral agreement was corroborated by third-party witnesses and a prior will.

The court held that the plaintiffs' acts of part performance took the agreement outside the Statute of Frauds and applied the doctrine of proprietary estoppel, finding it would be unconscionable to deny the plaintiffs the properties after they had detrimentally relied on the deceased's promises.

The estate was ordered to convey the properties to the plaintiffs.

The defendants sought summary judgment dismissing an action by a commercial tenant alleging that the landlord waived a lease provision requiring written notice to exercise a renewal option.

The tenant conceded that it failed to deliver written notice within the contractual deadline but argued that continued negotiations constituted waiver or estoppel.

The court held that negotiations regarding a possible new lease did not amount to a clear, explicit, and unequivocal exercise of the renewal option and did not establish waiver by the landlord.

The court further held that there was no independent tort duty requiring the landlord’s leasing agent to negotiate reasonably or in good faith.

Finding the matter entirely document-driven with no genuine issue requiring trial, the court granted summary judgment and dismissed the action.

The solicitor brought a motion seeking to stay an ongoing assessment of legal accounts before an assessment officer, arguing that issues of law raised in the assessment exceeded the officer’s jurisdiction under the Solicitors Act.

The client opposed, asserting the assessment officer had jurisdiction and that the objection was raised too late after the solicitor had already participated in the assessment process.

The court reviewed the limited jurisdiction of assessment officers, noting they determine quantum but cannot resolve genuine disputes about retainers or broader legal issues.

Because the solicitor intended to raise issues including champerty, maintenance, and intentional interference with contractual relations, the court held that these matters required determination by a judge.

The assessment proceeding was therefore stayed on condition that the solicitor commence an action or application within 60 days to determine the adequacy of the account and related issues.

The plaintiffs brought a motion under Rule 5.04(2) of the Rules of Civil Procedure to add a railway company as a defendant and to amend their statement of claim following a train–motor vehicle collision.

The proposed defendant opposed the motion, arguing that the claim was statute‑barred under the Limitations Act, 2002 and that the plaintiffs failed to exercise due diligence in identifying it earlier.

The court held that the discoverability principle applied because the plaintiffs reasonably believed the train operator was responsible for the crossing until examinations for discovery revealed that another entity controlled the tracks and signals.

The court found the plaintiffs had acted with reasonable diligence and that the proposed defendant suffered no actual prejudice given its early knowledge of the accident.

The motion to add the party and amend the claim was granted, with leave to the added defendant to plead a limitation defence.

The defendant brought a motion for summary judgment dismissing a wrongful dismissal action and argued that prior findings in a defamation proceeding barred the plaintiffs from introducing additional affidavit evidence under the doctrines of res judicata, issue estoppel, and abuse of process.

The defendant asserted that the earlier decision had already determined that surveillance cameras were installed to intercept private communications, constituting a criminal act justifying termination under the management consulting agreement.

The court held that the earlier decision only determined that private communications had been intercepted under the Criminal Code and did not determine whether the conduct constituted a criminal act of dishonesty resulting in personal gain as required under the contract.

Because the issues in the contractual termination clause had not been fully adjudicated, the prerequisites for issue estoppel were not met.

The court exercised its discretion to permit the plaintiffs to rely on the proposed affidavits in defending the summary judgment motion.

In a medical negligence trial arising from a compromised birth, the plaintiffs alleged that labour and delivery nurses failed to meet obstetrical monitoring standards before a severe bradycardic event.

The court found that active labour had begun by at least 18:00, requiring half-hourly auscultation, and held the nursing care fell below the standard by failing to monitor appropriately, verify concerning findings, and escalate monitoring.

On causation, the court preferred expert evidence that a prolonged partial hypoxic-ischemic process likely developed before 21:00 and would probably have been detected with proper surveillance.

The court concluded earlier intervention would likely have prevented or substantially reduced the neurological injury.

The hospital was found liable, with damages previously admitted subject to approval.