Alan John Lenczner

Following a prior decision staying the action on terms, the court determined the issue of costs arising from interlocutory motions on the Commercial List concerning enforcement of a foreign judgment and jurisdiction over the defendants.

The moving party defendants sought substantial partial indemnity costs after obtaining a stay.

The court reviewed the principles governing costs under Rule 57 of the Rules of Civil Procedure and the proportionality principle, as well as appellate guidance that costs should be fair and reasonable rather than a full indemnity of actual expenses.

Although the defendants obtained a stay, the court held that the substantive success on the motion was mixed, as the plaintiffs succeeded on the jurisdiction issue while failing on the asset‑exigibility argument.

Given the mixed success and the novelty of the jurisdiction and service ex juris issues, the court ordered that no costs be payable by any party.

The appellant sought to hold city councillors personally liable for voting in favour of a by-law that reimbursed two councillors for legal expenses related to election compliance audits.

The by-law was subsequently declared ultra vires.

The Court of Appeal dismissed the appeal, affirming that municipal councillors are not absolutely liable for ultra vires acts.

To establish personal liability for breach of fiduciary duty to taxpayers, a plaintiff must prove malice, bad faith, or misfeasance.

The court found no evidence that the councillors acted with an improper motive or preferred their personal interests over their duties.

The appellant sought costs of $107,070 plus disbursements after successfully appealing a decision under the Municipal Conflict of Interest Act.

The respondent argued for no costs on the basis that he was a public interest litigant.

The Divisional Court declined to award costs to either party, noting that success on the appeal was divided, the proceeding raised novel legal issues of public importance regarding municipal codes of conduct, and it was reasonable for the respondent to have pursued the application initially.

The Ontario College of Pharmacists brought an application for declaratory and injunctive relief against the respondents, who operated an internet pharmacy business selling prescription drugs to consumers outside Canada.

The respondents argued that their corporate restructuring, which involved an Ontario call centre processing orders for a Belize corporation, removed them from the College's jurisdiction.

The court found a sufficient connection to Ontario to engage the College's jurisdiction and determined that the sale of drugs was taking place in Ontario.

The court held that the respondents were operating a pharmacy without accreditation, selling drugs without pharmacists, and improperly using pharmacy designations, in breach of the Drug and Pharmacies Regulation Act and related legislation.

A permanent injunction was granted.

The appellant, Mayor Robert Ford, appealed a decision declaring his seat vacant for violating the Municipal Conflict of Interest Act (MCIA).

The application judge found the appellant breached the MCIA by speaking and voting on a council motion to rescind a previous council decision that required him to reimburse $3,150 in donations to his private football foundation.

The Divisional Court allowed the appeal, finding that the original reimbursement order was ultra vires the City of Toronto Act, 2006, which only permits reprimands or suspensions of remuneration for Code of Conduct violations.

Because the financial sanction was a nullity, the appellant did not have a pecuniary interest when he voted to rescind it, and therefore did not contravene the MCIA.

The appellant, the mayor of Toronto, moved for a stay of a judgment removing him from office for violating the Municipal Conflict of Interest Act, pending his appeal.

The court applied the RJR-MacDonald test and found there was a serious issue to be tried, the appellant would suffer irreparable harm if removed before the appeal, and the balance of convenience favoured a short stay.

The respondent conceded the stay was appropriate given the expedited appeal schedule.

The motion for a stay was granted.

The applicant brought an application under the Municipal Conflict of Interest Act (MCIA) seeking to declare the respondent's seat on Toronto City Council vacant.

The respondent, the Mayor of Toronto, had previously been found to have violated the Code of Conduct and was ordered to reimburse $3,150 to donors.

At a subsequent Council meeting, the respondent spoke and voted on a motion to rescind that repayment obligation.

The court found that the respondent had a pecuniary interest in the matter and breached s. 5(1) of the MCIA.

The court rejected arguments that the MCIA did not apply to Code of Conduct violations, that the repayment order was ultra vires, or that the interest was too insignificant to influence him.

The court also found the breach was not committed through inadvertence or an error in judgment.

The application was granted and the respondent's seat was declared vacant.

Following the dismissal of an environmental class action on appeal, the successful defendant sought costs for the period from certification to the trial decision, payable from the Class Proceedings Fund administered by the Law Foundation of Ontario.

The court held that the defendant was prima facie entitled to costs on a partial indemnity basis under the general rule that costs follow the event.

However, under s.31(1) of the Class Proceedings Act, the court considered that the proceeding raised novel legal issues concerning environmental mass torts and class proceedings and involved significant public interest, including access to justice and environmental concerns.

Balancing these factors with the defendant’s entitlement to compensation for substantial litigation expenses, the court reduced the costs award.

The defendant was awarded 50% of the otherwise assessed costs, payable from the Fund.

In a class proceeding costs dispute following the dismissal of environmental contamination claims, the defendant brought a motion to strike portions of affidavits filed by a third-party fund administrator opposing payment of costs from the Class Proceedings Fund.

The challenged affidavits contained opinion evidence from non‑expert witnesses asserting that the litigation raised issues of public interest.

The court applied the principles governing admissibility of lay opinion evidence from R. v. Graat, distinguishing between admissible opinion grounded in factual observations and inadmissible speculation or legal opinion.

While the court permitted most of the opinion evidence as permissible lay opinion supporting observations about the public interest and access to justice, it struck limited portions that lacked factual foundation or amounted to speculation.

In an environmental class action concerning historic nickel emissions from a refinery, the appellant challenged findings of nuisance, strict liability, and aggregate damages for alleged property value stigma following public concern about soil nickel levels.

The Court of Appeal held that a mere chemical alteration of soil, without detrimental effect on the land or its use, does not constitute actual, substantial, physical damage for private nuisance.

The court also held that Ontario law does not recognize strict liability based solely on allegedly extra-hazardous activity, and that the refinery operation was not a non-natural use within the Rylands v. Fletcher framework.

The claimants further failed to prove any compensable diminution in property values on a proper analysis of the valuation evidence.

The appeal was allowed and the action dismissed.

The appellant appealed an order interpreting a release executed following the settlement of a dispute.

The Court of Appeal upheld the application judge's finding that the release covered the claim for removal of excess fill, as the facts were known to the appellant when the release was executed.

The Court also upheld the reduction of a letter of credit and the imposition of additional terms.

The appeal was dismissed with costs.

The appellants, representative plaintiffs in a certified class action, appealed a motion judge's decision dismissing their request to amend the list of common issues to include questions regarding constructive trust, disgorgement, and waiver of tort.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that it would be unfair to add a potential new cause of action at this late stage of the proceedings.

The Court noted that the remedies of constructive trust and disgorgement remain available to the appellants at the second stage of the trial, as originally contemplated in the certification order.

The appellants sought to set aside a paragraph of the trial judgment finding oppression against one of the corporate appellants.

The Court of Appeal declined the request, noting the issue was not raised during oral argument and that there was ample evidence to support the trial judge's finding of oppression independent of a specific loan.

The appellants' request was dismissed.

The applicant sought costs on a substantial indemnity basis following a partially successful application for judicial review regarding the municipal reimbursement of legal expenses for city councillors.

The Divisional Court awarded the applicant partial indemnity costs of $15,000 payable by the city, noting the lack of complexity and partial success.

The court declined to award costs against the individual councillors, and ordered the applicant to pay $5,000 in costs to one councillor who successfully opposed the relief sought against him personally.

The respondents applied to the City of Toronto for demolition permits.

After 19 months without a decision, they appealed to the Ontario Municipal Board.

The City argued the appeal was out of time under section 3 of the City of Toronto Act, 1985.

The Board found it had jurisdiction, concluding that the time limits conflicted with section 33(4) of the Planning Act.

The Divisional Court dismissed the City's appeal, finding no conflict between the statutes but holding that the time limit in section 3 was directory rather than mandatory, and that the appeal was filed in time.

The appellant franchisor appealed a trial judgment finding it breached a franchise agreement and the statutory duty of good faith under the Arthur Wishart Act.

The trial judge found the franchisor deliberately withheld information from the franchisee regarding a new head lease and denied the franchisee's conditional right of renewal.

The Court of Appeal dismissed the appeal, upholding the trial judge's interpretation of the contract, her decision to treat the individual franchisee and his corporation as a single entity, and the damages awarded for breach of contract, breach of good faith, and mental distress.

The respondent was largely successful on the appeal.

The Court of Appeal for Ontario awarded costs to the respondent on a partial indemnity basis, fixed at $25,000 inclusive of disbursements and applicable taxes.

The applicant, a Toronto city councillor, brought an application for judicial review to quash municipal by-laws authorizing the reimbursement of legal expenses for three other councillors.

The expenses related to compliance audits of election campaign finances and defamation actions.

The Divisional Court held that the by-law reimbursing expenses for the compliance audits was ultra vires, as the expenses were not incurred in the councillors' capacity as members of council.

However, the court upheld the by-law reimbursing expenses for a defamation action brought by a sitting councillor, finding it was reasonably connected to her duties.

The application was granted in part.

The respondent and the appellant entered into an oral agreement to share ownership of a carrageenan business, with the respondent holding a 40 per cent interest.

The business was incorporated, but no shares were ever issued to the respondent.

After a falling out, the respondent brought an application for an oppression remedy and wrongful dismissal.

The application judge found the respondent was a beneficial owner and awarded substantial compensation and damages for wrongful dismissal.

The Court of Appeal upheld the findings of liability, confirming that the respondent was a proper complainant under the Business Corporations Act, but slightly reduced the compensation award.

The appellant appealed a judgment of the Superior Court of Justice, renewing two arguments made at trial.

The Court of Appeal agreed with the trial judge's reasons and conclusion, dismissing the appeal and awarding agreed costs of $10,000 to the respondent.