Adam J. Stephens

The succeeding estate trustees moved under Rule 59.06 to vary prior costs awards made after dismissal of their contempt motion regarding document production under an estate judgment.

They argued accidental slip, omission, and newly discovered facts, including post-endorsement waiver of privilege over lawyer file materials.

The court held Rule 59.06 is exceptional, does not permit a re-argument or review of judicial reasoning, and found no error in expressing the court’s manifest intention.

The court also found no new fact justifying variation and dismissed the motion.

This is a costs endorsement following the dismissal of a contempt motion brought by succeeding estate trustees against former estate trustees for alleged breach of a document production order.

The court awarded costs to the successful respondents (former estate trustees), payable from the estate assets rather than personally by the applicants.

The court rejected the applicants' argument that success was divided and clarified that contempt motions must be used as a last resort, not a routine enforcement tool.

The court also addressed the principles governing costs awards in estate litigation and the entitlement of estate trustees to indemnification for reasonably incurred legal costs.

The applicant municipality sought judicial review of a decision by a multi-site public hospital to relocate 10 inpatient beds from its Durham site to other sites due to nursing shortages.

The hospital brought a motion to dismiss the application, arguing the court lacked jurisdiction because the decision was not of a public character.

The Divisional Court granted the motion and dismissed the application, finding that the hospital is a private not-for-profit corporation and its internal operational decision to allocate resources was not an exercise of state authority subject to judicial review.

The applicants, succeeding estate trustees of the Estate of Cyril Hirsh Rosenthal, brought a motion seeking a declaration of contempt against the former estate trustee, Syed Pervez, for alleged non-compliance with a consent document production order.

The dispute primarily concerned documents in Pervez's possession in his capacity as an external accountant for a third-party corporation, Paragon Protection Ltd., in which the estate held an indirect interest.

The court dismissed the motion, finding that the applicants failed to prove beyond a reasonable doubt that Pervez was in contempt.

The court held that the consent order was unclear and overly broad as to whether it covered documents held in Pervez's professional accounting capacity, and further noted that Pervez had made good faith efforts to comply.

The Court of Appeal dismissed an appeal by Unit Precast (Breslau) Ltd. and a cross-appeal by Click+Clean GmbH.

Unit Precast appealed the striking out of its claims for conspiracy and intentional interference with contractual relations, and claims asserted personally against Lars Bergmann, arguing the motion judge erred in failing to recognize its business as part of RH20 North America Inc.'s.

Click+Clean GmbH cross-appealed the dismissal of its motion to stay the action in favour of arbitration, contending the motion judge erred in finding the arbitration agreement inoperative.

The Court of Appeal upheld the motion judge's decision, finding Unit Precast's claims were not adequately pleaded and that Click+Clean GmbH waived its right to arbitrate by seeking substantive relief (motion to strike) from the court.

The appellants, gynecologic oncologists, appealed a Superior Court decision that dismissed their application seeking continued funding from the Academic Medical Organization of Southwestern Ontario (AMOSO).

AMOSO, an unincorporated not-for-profit, had decided to discontinue their funding.

The appellants argued breach of contract and sought a contractual remedy or alternative dispute resolution, asserting they were third-party beneficiaries of a funding agreement.

The application judge dismissed their claim, finding no contractual right and that AMOSO's decision-making process was fair.

The Court of Appeal upheld the dismissal, confirming that the appellants were not parties to the agreement, nor were they intended third-party beneficiaries, and that the court's review of AMOSO's discretionary decision was limited to procedural fairness, which AMOSO had met.

The appellant landlord sought to expand a shopping centre to accommodate a new LCBO store, which required reconfiguring 36 parking spaces.

The respondent grocery store tenant successfully applied for a permanent injunction, with the application judge finding the tenant had a leasehold proprietary interest in the common parking area.

On appeal, the Court of Appeal held that the application judge erred in law, as the tenant lacked exclusive possession of the parking area.

Assuming the tenant held an easement, the Court found no substantial interference with the tenant's rights, as the reconfiguration did not significantly reduce available spaces and the tenant had no contractual right to specific spots.

The appeal was allowed and the injunction set aside.

The moving party sought leave to appeal the order of Valente J. dated April 19, 2023.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay the responding party $5,000 in costs.

The applicants, gynecologic oncologists, sought declaratory relief against the Academic Medical Organization of Southwestern Ontario (AMOSO), arguing they were wrongly deemed ineligible to receive funding for their academic services under a funding agreement.

They alleged procedural unfairness and substantive error in AMOSO's decision to discontinue their "Base Clinical Funds" claiming they were not compensated for academic services by another contract (Oncology AFP).

The court dismissed the application, primarily finding that the applicants lacked standing due to privity of contract, as they were not direct parties to the relevant agreements.

Alternatively, the court found that AMOSO's decision-making process was fair, thorough, and conducted in good faith, providing no basis for judicial intervention.

The moving defendants brought a motion under Rule 21 to strike various claims in the statement of claim, including all claims by Unit Precast, the conspiracy claim against all moving defendants, and all claims against Lars Bergmann.

Additionally, Click + Clean sought to stay the action against it based on an arbitration clause.

The court struck all claims by Unit Precast without leave to amend, and struck RH20's conspiracy claim and claims against Lars Bergmann with leave to amend.

The motion to stay the action against Click + Clean was dismissed, as conflicting forum selection clauses rendered the arbitration agreement inoperative, and the defendants' act of bringing a motion to strike constituted attornment to the court's jurisdiction.

The applicant tenant, operating a supermarket, sought a declaration and permanent injunction to prevent the respondent landlord from constructing a new LCBO building on the shopping center's parking lot.

The applicant argued the construction would eliminate parking spots and alter access, breaching its proprietary rights under a 1971 lease as amended.

The court found the lease granted the applicant a proprietary interest in the parking area and minimum parking spots.

The court rejected the landlord's arguments based on estoppel and delay.

Concluding that damages would be an inadequate remedy for the prospective breach of a proprietary right, the court granted the declaration and a permanent injunction prohibiting the construction.

The plaintiffs moved for an interlocutory injunction to restrain the defendants, who were former tenants of a farm property, from continuing an online harassment campaign against the landlord's principal.

The defendants had posted numerous YouTube videos containing threats, defamatory statements, and vulgar language aimed at coercing a settlement.

The court recognized the emerging tort of internet harassment and granted the injunction, finding that the defendants' conduct was intended to cause fear and anxiety and went beyond the bounds of decency.

The applicants sought an urgent hearing under the Vendors and Purchasers Act to determine the validity of title requisitions submitted by the purchaser two weeks before the closing date of a real estate transaction.

The requisitions concerned a potential heritage designation, knob and tube wiring, and an underground oil tank.

The court denied the request for an urgent hearing, finding that the urgency was self-induced by the parties agreeing to a late requisition date.

The court held that the matter was not truly urgent and did not justify jumping the queue of backlogged civil cases.

Inzola Group Limited appealed a trial decision dismissing its claims for breach of contract and bias against the City of Brampton regarding a multi-million-dollar construction Request for Proposals (RFP).

Inzola was disqualified for breaching RFP terms, including failing to sign a confidentiality agreement, communicating outside the sole point of contact, and making public disclosures to the media.

The Court of Appeal upheld the trial judge's findings that Inzola's breaches were fundamental and threatened the integrity of the RFP process.

The court also rejected Inzola's argument that the City breached a duty of fair and equal treatment by handling a different alleged breach by another bidder (Dominus) differently, finding Dominus's breach inconsequential compared to Inzola's.

The appeal on liability was dismissed, and leave to appeal costs was denied.

The applicants sought to rescind an Agreement of Purchase and Sale and recover their deposit due to undisclosed easements for storm and sanitary sewers.

The court found that the easements did not materially affect the use or enjoyment of the property, as per clause 10(d) of the agreement, and dismissed the application.

The applicants, the City of Toronto and the Association of Municipalities of Ontario, brought a motion for an interim injunction to stop an arbitration between the respondents, Resource Productivity & Recovery Authority and Stewardship Ontario.

The applicants argued that the arbitration was not the proper forum to challenge a funding obligation decision and sought to have the matter determined by judicial review.

The Divisional Court dismissed the motion, finding that the applicants failed to demonstrate irreparable harm and that the balance of convenience favoured allowing the arbitration to proceed as scheduled.

Following a 38-day trial where the plaintiff's claim was dismissed, the successful defendant sought costs of over $2.2 million on a partial indemnity basis, but argued for substantial indemnity costs from the date the plaintiff amended its pleadings to allege bias and conspiracy.

The court denied substantial indemnity costs, finding the plaintiff's allegations were not made recklessly or without evidentiary foundation.

The court upheld the defendant's significant e-discovery disbursements as reasonable but ordered the defendant to produce redacted dockets for the plaintiff's review before finalizing the fee award.

This case involves appeals from a Master's decision regarding procedural motions in a breach of contract action related to a tender process.

Metrolinx, Exclusive Advertising Inc., and non-party IMA Outdoor Inc. all appealed various aspects.

The court allowed Metrolinx's appeal, dismissing those of Exclusive and IMA.

Key issues included the amendment of pleadings to allege collusion, the relevance of post-Contract B events to discovery and production, and the examination of a non-party representative.

The court affirmed that collusion must be properly pleaded to open up Contract B events for discovery and upheld the Master's finding of a constructive refusal to obtain information as a basis for ordering a non-party examination.

The plaintiff, a construction company, sued the defendant municipality after being disqualified from a Request for Proposals (RFP) process for a City Hall expansion.

The plaintiff alleged that the municipality acted in bad faith and with bias when it disqualified the plaintiff for refusing to sign a confidentiality agreement and for communicating directly with City Council.

The Superior Court of Justice dismissed the action, finding that the plaintiff had breached the clear terms of the RFP and that the municipality's decision to disqualify the plaintiff was fair, made in good faith, and based on the advice of an independent fairness advisor.

The court also held that even if the municipality had breached the RFP, the plaintiff would only be entitled to reliance damages, not expectation damages for lost profits.

The defendant, an unsuccessful bidder for a transit advertising contract, brought a motion for leave to amend its counterclaim, for further documentary discovery from the plaintiff, and for document production and examination of the non-party successful bidder.

The court applied tendering law principles, distinguishing between Contract A (the bidding process) and Contract B (the awarded contract), holding that post-award conduct was irrelevant to the alleged breach of fairness in the bidding process.

The court permitted a limited examination of the non-party regarding pre-award events and ordered the plaintiff to produce specific pre-award documents, but denied broad document production, forensic audits, and amendments relating to post-award conduct.