Alastair James McNish

Following a summary judgment where the plaintiff was awarded significant damages for breach of a promissory note but failed on claims of fraudulent misrepresentation, the plaintiff sought costs of $58,499.81.

The defendant argued for no costs due to divided success.

The court noted the plaintiff beat their settlement offer but declined to award substantial indemnity costs.

Costs were fixed at $40,000 payable by the defendant.

The defendants brought a motion to dismiss the plaintiff foreign bank's civil action for fraud and breach of contract on the basis of issue estoppel and abuse of process, arguing that Iranian criminal courts had already declined to prosecute the individual defendant for the same conduct.

In the alternative, the defendants sought a stay based on forum non conveniens or an order for security for costs.

The court dismissed the motions based on issue estoppel, abuse of process, and forum non conveniens, finding that the Iranian criminal proceedings did not finally determine civil liability and that Ontario remained an appropriate forum.

However, the court granted the motion for security for costs, ordering the plaintiff to post $175,000 as it had no assets in Ontario or a reciprocating jurisdiction.

The plaintiff brought a motion for summary judgment against his former business partner for breach of a promissory note.

The defendant argued the contract was frustrated by a third-party fraud and challenged the escalatory interest rate, which reached 60%.

The court rejected the frustration defence as improperly pleaded and factually unsupported, and dismissed the plaintiff's claim for fraudulent misrepresentation.

The court enforced the promissory note's 60% interest rate, finding it did not violate the Criminal Code due to transitional provisions, and awarded the plaintiff over $3.6 million.

The receiver moved to determine appellate entitlement from receivership-related orders under the BIA.

The court held no appeal as of right under ss. 193(a) or (c), denied leave, and granted the receiver’s motion.

The plaintiff mortgagee brought a motion for summary judgment against the defendant mortgagor for alleged mortgage default.

The defendant disputed the renewal fee amount, claiming the parties had agreed to reduce it from 6% to 4% and that she had paid the reduced amount in cash.

The court rejected the defendant's evidence as uncorroborated and lacking credibility.

The court also addressed procedural issues regarding the timing of the Statement of Claim relative to the Notice of Sale under the Mortgages Act, and rejected the defendant's argument that the Farm Debt Mediation Act applied.

Summary judgment was granted in favor of the plaintiff.

Cary Kaplan, a defendant, brought a motion to dismiss the oppression claim against him by OZ Merchandising Inc. The court granted the motion, finding that the alleged oppressive conduct had been rectified by the Canadian Soccer League Inc.'s admission of successor liability for the Canadian Professional Soccer League Inc.'s liabilities.

Furthermore, the court determined that punitive damages were not an appropriate remedy for rectification in this context and that the claim against Mr. Kaplan was statute-barred under the Limitations Act, 2002, as it was brought more than five years after the alleged conduct and his addition to the action.

This endorsement from a case conference addresses the plaintiff's repeated attempts to delay the hearing of defendant Kaplan's motion to dismiss and to link it with other potential motions for default judgment or summary judgment.

The court denied the plaintiff's requests for further deferral and linking, emphasizing that Kaplan's motion had been delayed long enough.

The court also clarified that motions are not heard by a jury, particularly for equitable remedies like oppression claims under the OBCA.

Finally, the court ordered the plaintiff to forthwith pay outstanding costs previously awarded to Kaplan.

The Applicants, Molly Margaret Anne Patterson and Lawrence Boucher, sought an order enjoining the Respondent, Dianne Bhual, from trespassing and harassing them.

The application settled without a hearing, leaving only the issue of costs.

The Applicants sought approximately $60,000 in full costs, while the Respondent offered $5,000.

The court, applying Rule 57.01, determined that partial indemnity costs were appropriate, rejecting the Applicants' claim for full recovery due to a lack of "reprehensible conduct" by the Respondent.

The court awarded the Applicants $36,000 in costs, noting that the Respondent's late participation and unsubstantiated allegation of racial bias were factors, but not sufficient for full indemnity.

Following their separation, the parties disputed the ownership and value of their jointly built business, Holdco.

The applicant claimed he owned 70% of the common shares, while the respondent claimed a 50% ownership based on their post-separation conduct and equal dividend payments.

The court found the respondent owned 50% of the shares, noting that the corporate records were inaccurate and the applicant had treated the respondent as an equal owner.

The court also held that the claim was not statute-barred and valued the business at $10,800,000, ordering the applicant to pay the respondent $5,400,000 for her shares.

The applicant minor hockey association sought an interlocutory injunction to prevent the respondent governing body from re-allocating minor hockey programming contrary to a 2018 agreement.

The court applied the RJR-MacDonald test and found that while there was a serious issue to be tried regarding whether reasonable notice of termination was required, the applicant failed to establish irreparable harm.

The court found that any financial losses were quantifiable and compensable in damages, and the balance of convenience did not favour granting the injunction.

The motion was dismissed.

The defendant Garda World Canada Security Corporation brought a motion to strike the amended statement of claim against it, arguing that the plaintiff failed to plead a reasonable cause of action and that it was plain and obvious the claim could not succeed.

Garda contended that as a new shareholder, it was not liable for the alleged breach of contract or negligence of the Primary Response Defendants.

The plaintiff argued that Garda was liable due to a share acquisition and/or amalgamation, citing section 179(b) of the Ontario Business Corporations Act, which transfers all liabilities to an amalgamated corporation.

The court dismissed Garda's motion, finding it was not plain and obvious that the claim against Garda could not succeed, and granted the plaintiff liberty to amend the statement of claim if necessary.

Costs were awarded to the plaintiff.

The applicant brought a motion to strike the respondent's affidavit evidence due to misconduct during a virtual cross-examination.

The applicant alleged that the respondent's wife and son were in the room off-camera, coaching the respondent with hand and facial gestures.

The court accepted the evidence of the independent interpreter, who confirmed the presence and coaching by the family members.

Finding this to be a deliberate abuse of process that tainted the entire testimony, the court struck the respondent's affidavit.

The applicant brought a motion for summary judgment to dismiss the respondent's action regarding the allocation of shareholdings in a holding company.

The parties, former spouses, disputed whether the respondent owned 30% or 50% of the shares, with the respondent claiming a constructive trust over 20% of the shares due to family law and unjust enrichment principles.

The court found that the corporate records were deficient and that the intertwined family law complexities, including the respondent's decision not to seek an equalization payment, created critical factual disputes.

The court concluded there was a genuine issue for trial and denied summary judgment.

Melissa Hrvoic brought a motion seeking to compel Aaron Franks to answer 53 questions refused on grounds of solicitor-client and litigation privilege during a Rule 39.03 examination.

The motion also faced dismissal due to Melissa Hrvoic's non-compliance with a prior interlocutory order to return $500,000.

The court found the questions relevant and the privileges properly asserted.

It determined that Mr. Hrvoic had not waived privilege by including an explanatory letter from his lawyer in the record, as this did not constitute using legal advice as a material fact in his claim or defence, nor was it equivalent to filing an affidavit.

The court also dismissed the motion due to Melissa Hrvoic's non-compliance with Justice Dow's order.

The moving party sought leave to appeal the order of Dow J. dated March 10, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 for the stay motion and $5,000 for the motion for leave to appeal to the responding party.

The respondent moved for a stay pending leave to appeal an adjournment order by Dow J., which required her to repay $500,000 of $600,000 drawn on a line of credit.

The court expressed concerns about the meta-motions, the connection to family law proceedings, the likelihood of obtaining leave to appeal a discretionary order, and the potential for the respondent to consume the funds.

The court decided to convene a case conference to discuss process issues for the urgent application, inviting family law counsel, and noted that a judge might be designated to ensure efficient handling.

This endorsement addresses a procedural case conference concerning ongoing litigation between separated spouses.

The applicant, Mr. Hrvoic, initiated an application for Ms. Hrvoic to sell her shares in a family business.

Following Mr. Hrvoic's termination of Ms. Hrvoic's employment, Ms. Hrvoic "borrowed" $600,000 from a line of credit.

Dow J. subsequently ordered Ms. Hrvoic to repay $500,000 of this amount.

Ms. Hrvoic now seeks leave to appeal this term and an urgent stay pending appeal.

The court noted the parties' contentious approach and set a schedule for the motion for a stay pending appeal, declining to grant an interim stay.

Following a successful summary judgment motion for payment of a real estate commission, the moving party sought costs.

The trustee opposed personal liability, arguing costs should be paid from funds held in court.

The investors argued the trustee should pay costs personally due to improper conduct.

The court ordered costs of $10,000 to be paid from the funds in court, as the moving party should not be prejudiced by the dispute between the trustee and investors, but without prejudice to the investors seeking recovery from the trustee in their ongoing litigation.

The successful self-represented party on an appeal sought a higher costs award than the $2,500 partial indemnity amount agreed to by the parties at the hearing.

He argued that the opposing party took advantage of his lack of knowledge regarding typical costs allowances.

The court declined to vary the agreement, finding the agreed amount reasonable and noting no legal justification for a higher scale of costs.

Costs of $2,500 were awarded to the successful party.

This is a costs endorsement following a successful motion for an interlocutory injunction by Product Pro Industrial Supplies Inc. against Sheam Yee Wang and KTS Consulting (the "Wang Defendants").

Product Pro sought costs on a partial indemnity scale, or alternatively, substantial indemnity.

The court found that while Product Pro did not achieve all requested relief, it was substantially successful, warranting costs.

The court rejected the Wang Defendants' arguments against costs, including allegations of fraud and improper conduct by Product Pro's principal, finding these did not disqualify Product Pro from receiving costs.

The court fixed costs at $26,869.20 on a partial indemnity scale, inclusive of fees, disbursements, and HST, to be paid by the Wang Defendants within 30 days.