Adam J. Stephens

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 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 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.

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.

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 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.

The applicant property owner sought an order under s. 61(1) of the Conveyancing and Law of Property Act to modify restrictive covenants registered against its commercial property for the benefit of the adjoining Home Depot lands.

The restrictions prohibited the sale of various home improvement products to prevent competition with Home Depot, subject to an 'incidental sale' exception.

The applicant argued the restrictions were spent because a previously planned 'big box' development did not proceed, and sought to expand the 'incidental sale' square footage allowance to facilitate its current commercial condominium development.

The court dismissed the application, holding that under the strict test in *Re Lime*, s. 61(1) only permits modification or discharge where a restriction is spent or of no practical value, and cannot be used to reallocate rights between parties based on a balance of convenience or economic efficiency.

A seller and buyer entered into an agreement for the purchase and sale of a warehouse for $10,225,000.

The buyer intended to establish a licensed marijuana grow-op business.

The agreement provided for an initial deposit of $300,000, and the buyer paid an additional deposit of $450,000 to obtain a six-month extension of the closing date.

When the buyer failed to obtain Health Canada licensing and financing and failed to close, the seller sought to forfeit the entire $750,000 deposit.

The application judge found the forfeiture unconscionable and reduced it to $350,000.

The Court of Appeal reversed, holding that the deposit was not grossly disproportionate and that unconscionability must be an exceptional finding strongly compelled by the facts.

The court restored the full contractual forfeiture of $750,000.

The applicant vendor sought a declaration that the purchaser was in breach of an Agreement of Purchase and Sale for commercial property and that the vendor was entitled to retain the full $750,000 deposit.

The purchaser failed to close due to lack of financing and inability to obtain a Health Canada license for its intended marijuana grow-op business.

The court found the purchaser breached its good faith obligation and had no legal justification for not closing.

However, the court granted the purchaser relief from forfeiture under Section 98 of the Courts of Justice Act, finding the total deposit of $750,000 to be unconscionable in the absence of evidence of damages suffered by the vendor.

The forfeited sum was reduced to $350,000.

The plaintiff, a resident of Switzerland with no assets in Ontario, sought court approval for a third-party Litigation Funding Agreement (LFA) to pursue a complex commercial action against the defendants.

The defendants opposed the LFA, arguing it could allow the funder to recover more than 50 percent of the proceeds, and brought a cross-motion for security for costs.

The court found that while third-party funding is not per se objectionable in commercial litigation, the specific terms of this LFA were unfair to the plaintiff and constituted champerty and maintenance.

The motion to approve the LFA was dismissed without prejudice, and the cross-motion for security for costs was deferred.

Following a successful motion striking a punitive damages claim in a proposed securities class proceeding, the defendants sought partial indemnity costs of approximately $43,000.

The plaintiff argued that no costs should be awarded because the motion raised a novel point of law concerning the availability of punitive damages under Part XXIII.1 of the Securities Act.

The court accepted that the issue was legally novel and reasonably contested, noting that existing case law did not clearly resolve the question.

Exercising its discretion, the court held that fairness justified departing from the usual costs rule.

No order as to costs was made.

The plaintiffs brought a proposed class action against the directors, officers, and advisors of a Delaware-incorporated company for alleged misrepresentations and failures to disclose under Part XXIII.1 of the Securities Act.

The defendants brought motions to strike the claim for punitive damages, strike the claim against a former director for failing to disclose a reasonable cause of action, and stay the action against the foreign financial advisors on jurisdictional grounds.

The court granted all motions, striking the punitive damages claim as inconsistent with the statutory scheme, striking the claim against the former director without leave to amend, and permanently staying the action against the foreign advisors as the court lacked jurisdiction simpliciter.

The applicant landlord sought a declaration that a commercial tenant was required to pay its proportionate share of the cost of rehabilitating a shopping centre parking lot as additional rent under a lease provision requiring tenants to pay common area maintenance costs for repairs and maintenance.

The dispute turned on whether the parking lot rehabilitation constituted a repair or a capital expenditure under “accepted accounting practice.” After considering expert engineering and accounting evidence and principles drawn from GAAP and relevant case law, the court concluded that the work significantly extended the life of the parking lot and reduced operating costs, thereby enhancing its service potential.

The court held that the rehabilitation constituted a capital expenditure rather than a repair within the meaning of the lease.

Accordingly, the tenant was not responsible for the cost and was entitled to set-off amounts already paid.