A.C.R. Whitten

The applicant sought recognition and enforcement of portions of an international arbitral award under the International Commercial Arbitration Act and the UNCITRAL Model Law.

The respondent argued that the arbitral tribunal exceeded its jurisdiction by awarding attorney’s fees and arbitration costs because the arbitration clause required each party to bear its own costs except in the specific context of an early termination charge.

The court held that the tribunal lacked jurisdiction to award general attorney’s fees and costs after rejecting the contractual early termination provision that allowed such recovery.

As the parties had not expressly agreed in writing to amend the arbitration clause to allow fee‑shifting outside that provision, the cost award was unenforceable.

The court dismissed the application to enforce the attorney’s fees and cost components of the arbitral award and held that post‑judgment interest would be governed by the statutory rate under the Courts of Justice Act.

Following the granting of summary judgment and a writ of possession in favour of a mortgagee, the court addressed the outstanding issue of costs.

The defendants had resisted the summary judgment motion by raising issues that had previously lapsed or were not pursued, resulting in unnecessary prolongation of the proceeding.

Applying Rule 57.01 of the Rules of Civil Procedure and considering the mortgage covenant, the court determined that costs should be awarded on a substantial indemnity basis due to the defendants’ vexatious and unnecessary conduct.

After reviewing the plaintiff’s revised cost outline and adjusting for certain excessive or premature billing items, the court fixed costs at $13,000 inclusive of disbursements.

The plaintiff lender brought a motion for summary judgment to enforce a $250,000 personal guarantee provided by the defendant in support of a corporate credit facility.

The defendant argued that several payments made by a corporation he controlled should reduce his liability under the guarantee based on an alleged understanding with the lender.

The court applied the summary judgment framework under Rule 20 and the “full appreciation test” articulated in Combined Air Mechanical Services Inc. v. Flesch.

The documentary evidence, including multiple forbearance agreements acknowledging the validity of the guarantee, contradicted the defendant’s asserted understanding.

The court held there was no genuine issue requiring a trial and granted summary judgment.

The moving defendants brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike portions of the statement of claim alleging civil conspiracy and knowing receipt.

The plaintiff alleged that certain defendants participated in a scheme involving inflated pricing of asbestos encasement products supplied to a hospital project, resulting in breaches of contractual and fiduciary duties.

The court reviewed the elements required to plead civil conspiracy and knowing receipt and concluded that the pleadings lacked essential factual allegations supporting either cause of action.

The allegations were largely speculative and failed to establish concerted unlawful conduct or knowledge of misappropriated trust funds.

The court struck the impugned pleadings, granted leave to amend for most defendants, and struck the claim entirely against one defendant without leave to amend.

Following a trial in which the plaintiff’s claim and related cross-claims were dismissed, the court determined the appropriate costs award.

Applying s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court assessed the reasonableness of the successful defendant’s bill of costs on a partial indemnity basis.

The court scrutinized preparation time, trial attendance, and written submissions, reducing several claimed amounts and rejecting certain disbursements including unexplained agency fees, meal expenses, legal research charges lacking detail, and stationery costs treated as overhead.

The court fixed reduced amounts for several litigation stages and limited disbursements.

Counsel were directed to calculate the final payable costs based on the court’s determinations.