Adrian C. Lang

Following an earlier endorsement in a commercial dispute, the court issued a corrigendum to correct two matters raised by counsel.

First, the formal endorsement had omitted the judge’s decision striking a specific paragraph of the applicants’ amended amended application, which had previously been recorded only in a handwritten endorsement.

Second, the reasons incorrectly stated that a newly constituted board had approved the sale of a 10% share in a corporation to a respondent, when in fact the scheduled board meeting had not proceeded because the application had already been commenced.

The court clarified both issues and amended the reasons accordingly.

Following the dismissal of the foreign tobacco defendants' jurisdictional appeals, the Court of Appeal determined the costs of the appeals.

The appellants argued that costs should be capped at $100,000, asserting that the Crown treated the five appeals as one by filing a common factum.

The Court rejected this argument, finding no $100,000 ceiling exists for costs awards in the Court of Appeal.

Given the complexity, the $50 billion stakes, and the necessity of responding to five separate appeals, the Court fixed the Crown's partial indemnity costs at $237,332.50, apportioned between the BAT and RJR appellants.

The applicants brought an oppression application regarding a family investment company, Naim Investments Limited.

They alleged that the proposed sale of a 10% shareholding by an estate to a third party, Dr. Low, was a disguised sale to a rival family branch that would breach an unwritten control agreement and a written ownership restriction agreement.

The court found no evidence of a control agreement, determined that Dr. Low was an arm's length purchaser, and concluded that the election of a new board to approve the sale was a proper exercise of corporate governance to resolve a deadlock.

The application was dismissed with costs.

A bank sought to recover approximately USD $5.4 million under guarantees related to credit facilities advanced to a UAE construction entity and alleged that settlement proceeds from unrelated international litigation were fraudulently conveyed to affiliated corporations to defeat its claim.

The plaintiff also sought to add numerous additional corporate and individual defendants, rely on the discoverability doctrine and misnomer exceptions to the Limitations Act, and pierce the corporate veil on the basis of a common enterprise among related companies.

The court held that most proposed defendants could not be added because the claims were statute‑barred and the discoverability doctrine did not apply due to the plaintiff’s lack of diligence in identifying corporate entities earlier in the litigation.

Although one entity was permitted to be added due to misnomer, the court found no fraudulent conveyance under the Fraudulent Conveyances Act and declined to pierce the corporate veil, emphasizing the principle of separate corporate personality.

The plaintiff’s claims were dismissed and costs were awarded to the defendants.

Ontario sued foreign and domestic tobacco manufacturers under the Tobacco Damages and Health Care Costs Recovery Act, 2009 to recover health care costs.

Six foreign defendants brought a motion to stay or dismiss the action for lack of jurisdiction, which was dismissed.

The foreign defendants appealed.

The Court of Appeal dismissed the appeal, finding that the statutory claim was analogous to a tort committed in Ontario, establishing a presumptive connecting factor under the Van Breda framework.

The Court also upheld the motion judge's findings that Ontario established a good arguable case and affirmed the costs award.

Following a prior decision staying a motion for summary judgment pending discovery, the court addressed costs of the motion.

The responding party sought substantial indemnity costs on the basis that the motion had been unreasonable and premature, while the moving parties requested partial indemnity costs payable in the cause.

The court considered Rule 20.06 of the Rules of Civil Procedure and the circumstances surrounding the premature motion.

Although the motion had disrupted the orderly discovery process, the court concluded that much of the work product would remain useful in the continuing litigation.

The court exercised its discretion to award a fixed costs amount rather than substantial indemnity or costs in the cause.

A non-party sought leave to appeal an order requiring production of decades of corporate financial statements in connection with a summary judgment motion.

The order, originally made by a master and upheld on appeal, required production of financial statements of a pharmaceutical company alleged to be carrying on the business of a predecessor company whose sale generated royalty and option agreements benefiting the plaintiffs.

The moving party argued that conflicting decisions existed and that the order was incorrect because the documents were irrelevant, disproportionate, and improperly required disclosure from a non-party.

The court held that the alleged conflicting decisions involved different procedural stages and discretionary contexts, and therefore did not conflict in principle.

It further found the financial statements had a semblance of relevance to issues of liability, including whether the successor company continued the predecessor’s business.

Leave to appeal was refused.

The defendants brought a motion for summary judgment to dismiss the plaintiff's claims for breach of non-competition and non-solicitation agreements.

The plaintiff opposed the motion, arguing it was premature as the defendants had failed to produce relevant documents and there were significant credibility issues between the key affiants.

The court agreed with the plaintiff, finding that the motion was premature and could not be disposed of without full discovery and the exchange of affidavits of documents.

The motion for summary judgment was stayed pending the completion of these steps.

The plaintiff sought leave to appeal to the Divisional Court from a costs order awarding substantial indemnity costs against it after its unsuccessful motion for summary judgment.

The underlying motion involved a dispute over an alleged energy supply contract and claims of overcharging, where the plaintiff’s affidavit evidence conflicted with recorded telephone evidence and cross-examination testimony.

The motions judge had found the plaintiff acted unreasonably by bringing the summary judgment motion prematurely and by advancing misleading and contradictory affidavit evidence, warranting substantial indemnity costs under Rules 20.06 and 57.01 of the Rules of Civil Procedure.

On the leave motion, the court held the plaintiff failed to meet the criteria in Rule 62.02(4) because there was no conflicting authority and no reason to doubt the correctness of the costs ruling.

Leave to appeal the costs order was therefore refused.

The defendants brought a Rule 21 motion to strike an amended statement of claim on the basis that it disclosed no reasonable cause of action and was an abuse of process due to a related proceeding.

The court applied the stringent Rule 21 test and held that most of the pleaded causes of action—including breach of an implied contractual duty of good faith, inducement of breach of duty, inducement of breach of fiduciary duty, and intentional interference with economic relations—were not plainly doomed to fail and therefore should proceed.

However, the conspiracy claim failed to properly plead the necessary elements and was struck with leave to amend.

The request to stay the proceeding due to a separate action involving a solicitor and law firm was rejected because the parties and subject matter were not the same.

Costs were awarded to the responding parties.

Following a motion concerning amendments to a statement of claim and the scope of discovery, the court addressed costs after the parties were unable to agree.

The moving party had largely succeeded in obtaining amendments and discovery relief, although some proposed amendments were refused.

Applying the factors under Rule 57 of the Rules of Civil Procedure, the court held that costs should follow the result but reflect the partially divided outcome.

The court reduced the moving party’s claimed fees to remove work unrelated to the motion and applied a further percentage reduction to account for unsuccessful portions of the amendments.

Partial indemnity costs and reduced disbursements were awarded to the moving party.

The moving party sought leave to amend its statement of claim to add an alternative theory of liability alleging negligent hiring and supervision of a sales representative by an energy company, and also requested settlement of a discovery plan regarding documentary production and discovery scope.

The court applied Rule 26.01 of the Rules of Civil Procedure, emphasizing that amendments should be granted unless they would cause non-compensable prejudice or are clearly impossible of success.

The court held that negligent hiring and supervision constitute a recognized cause of action and that the proposed amendments disclosed a tenable claim, though certain phrases were struck for being prejudicial, argumentative, or lacking material relevance.

The court permitted the amendments with modifications and ruled on disputed discovery requests, allowing several document productions subject to limitations for relevance and proportionality.

Following dismissal of jurisdiction motions brought by several foreign tobacco companies in a health care cost recovery action, the court determined costs.

The unsuccessful moving parties argued that earlier evidentiary and procedural steps constituted separate proceedings and sought substantial costs for those steps.

The court rejected that characterization, holding that all preliminary steps formed part of the overall jurisdiction challenge and that distributive costs awards based on success on individual steps should be avoided.

Applying Rule 57.01 factors and general costs principles, the court found the responding party was the successful party and entitled to costs, subject to reductions reflecting partial success on certain evidentiary and motion issues.

The court awarded partial indemnity costs of $425,000 plus disbursements, allocating liability between two groups of moving defendants.

The appellants appealed a trial judgment regarding a gas contract dispute, arguing errors in the limitation period, mitigation, contract renewal, and costs.

The respondent cross-appealed, arguing the limitation period should not run due to fraudulent concealment.

The Court of Appeal dismissed the main appeal on the substantive issues, finding no error in the trial judge's treatment of the limitation period, mitigation, or the validity of the renewal contract.

However, the court granted leave to appeal costs and reduced the trial costs award to partial indemnity.

The cross-appeal was dismissed as the issue of fraudulent concealment was not raised at trial.

Following competing summary judgment motions in a civil commercial dispute, the court addressed the issue of costs.

The plaintiff’s summary judgment motion had previously been dismissed, while the defendant’s cross‑motion was found premature and allowed to be brought again after discoveries.

The plaintiff argued that the defendant should not receive costs because it withdrew one cross‑motion and the remaining motion was premature.

The court found that misleading and contradictory evidence advanced by the plaintiff undermined the litigation process and forced the defendant to bring the cross‑motions.

Considering the factors in Rule 57.01 of the Rules of Civil Procedure, the court awarded the defendant substantial indemnity costs.

The defendant brought a motion for summary judgment seeking dismissal of the plaintiff’s claim as statute-barred under both the former and current Limitations Act regimes.

The moving party argued that, even accepting the plaintiff’s evidence at its highest, the limitation period had expired.

The court acknowledged that the limitation argument had merit but found that credibility issues and the incomplete evidentiary record made summary determination inappropriate.

The court held that a full trial and discoveries were necessary for the trier of fact to properly assess the evidence and refine the issues.

The motion was adjourned sine die with leave to renew the limitation argument on notice.

The Crown brought an action under the Tobacco Damages and Health Care Costs Recovery Act against several domestic and foreign tobacco companies, claiming $50 billion for health care costs related to tobacco disease.

Six foreign defendants brought motions to set aside service ex juris and stay or dismiss the action, arguing the Ontario court lacked jurisdiction simpliciter.

The court dismissed the motions, finding that the Crown had established a good arguable case that the foreign defendants conspired and acted in concert to commit tobacco-related wrongs, establishing a real and substantial connection to Ontario.

The appellant appealed a decision finding that the respondent's submission to arbitration was not time-barred.

The Court of Appeal upheld the application judge's interpretation of the commercial agreement, agreeing that the parties were obliged to attempt to resolve the dispute over information delivery and costs before proceeding to arbitration.

The appeal was dismissed with costs.

The appellant appealed a decision ordering the dissolution of a partnership under s. 35(f) of the Partnerships Act.

The application judge found that the partners had fundamentally different visions for the partnership's future following the loss of their primary medical clinic tenant, and that they had lost the mutual trust and confidence necessary to continue the partnership.

The Court of Appeal dismissed the appeal, holding that the application judge's findings were amply supported by the evidence, including serious allegations of breach of fiduciary duty and misleading the court.

Following the dismissal of 42 consolidated motions for leave to appeal costs awards in 37 class actions, the respondent insurers sought costs totalling $345,349.36.

The Court of Appeal assessed the bills of costs submitted by various law firms representing the insurers.

Applying the principle that costs must be fair and reasonable rather than a strict mathematical calculation of hours times rates, the Court reduced the amounts claimed, noting that the complexity was procedural rather than legal or factual.

The Court fixed the total costs payable to the insurers at $141,645.26.