Alec McLennan

The appellant, a small jewelry business, appealed the dismissal of its action against CIBC following a summary judgment motion.

The appellant claimed that Advantex and CIBC misrepresented a marketing agreement entered into in June 2012, whereby the appellant agreed to pay 14% of sales made through CIBC credit card customers.

The appellant alleged it discovered the misrepresentation in December 2015 when it noticed payment irregularities.

The motion judge found the claim was statute-barred under the Limitations Act, 2002, as it was discoverable no later than December 2012.

The Court of Appeal upheld the dismissal on the merits but reduced the costs award from $50,000 to $25,000, finding the motion judge failed to apply the principle of proportionality in a simplified procedure case.

At a pre-trial hearing, the court struck the pleadings of Superior Fine Papers Inc., Reliance Holdings Limited, and Reliance Developments Corporation ("Superior et. al.") in two related actions due to their repeated failure to comply with court-ordered litigation timetables, deliver documents, make representatives available for examinations for discovery, and pay previously ordered costs.

The court also awarded further costs against Superior et. al. and set conditions for any motion to set aside the striking of pleadings, including the prior payment of all outstanding costs.

The court determined costs for two motions: a motion to transfer an action from Thunder Bay to Milton, and a cross-motion to stay an action in Milton based on a jurisdiction clause.

Both original motions were dismissed.

For the motion to stay, no costs were awarded, as the delays were attributed to the Property Owners' (Superior Fine Papers Inc., Reliance Holdings Limited, and Reliance Developments Corporation) conduct.

For the motion to transfer, the Property Owners were ordered to pay partial indemnity costs of $7,000 to Terrapure Environmental (Revolution Environmental Solutions LP c.o.b. as Terrapure Environmental and Revolution Environmental Solutions Acquisition GP Inc.), due to their unsuccessful motion and conduct that unnecessarily lengthened proceedings.

The court issued a costs endorsement following the dismissal of the plaintiff's action.

The defendant sought substantial indemnity costs for a motion and partial indemnity costs for the action.

The plaintiff argued the costs were unreasonable and disproportional.

The court fixed costs for the motion at $2,500 (substantial indemnity) and for the action at $24,104.36 (partial indemnity).

Substantial indemnity was awarded for the motion due to the plaintiff's sanctionable conduct, including failure to comply with previous costs orders and engaging in pointless delay.

The court emphasized that proportionality should not override other considerations, especially when a litigant's conduct prolongs or complicates proceedings, and that costs can exceed the amount recovered in judgment in appropriate circumstances.

The defendant brought a motion to strike the statement of claim and release funds paid into court, citing the plaintiff's repeated failure to comply with multiple costs orders.

The plaintiff had accumulated significant outstanding costs and had engaged in delaying tactics, including unverified claims of imminent funds and questionable travel expenses.

The court dismissed the plaintiff's action due to her contumelious breaches of costs orders and ordered the funds in court to be paid to the defendant, emphasizing the necessity of enforcing court orders despite the draconian nature of dismissal.

This endorsement fixes costs for a dismissed application for leave to appeal to the Divisional Court.

The respondent sought costs of $9,698.28, while the applicant argued for a lower award based on proportionality and the ongoing trial merits.

The court, applying Rule 57.01, found the respondent entirely successful, noted the complexity introduced by the applicant's 15-17 grounds of appeal, and considered the applicant's conduct in raising irrelevant issues.

Rejecting a standard maximum for leave to appeal costs, the court awarded the respondent $6,500.00 inclusive of HST and disbursements.

The plaintiff bank brought a motion for summary judgment to recover amounts owing under a business credit agreement and personal guarantees.

The defendants asserted a limitation period defence and argued the bank improperly charged interest under the agreement.

The court held that payments made to the account constituted acknowledgments of liability under s. 13 of the Limitations Act, thereby restarting the limitation period.

The court also found the credit documentation authorized the bank to increase the interest rate upon default and rejected the alleged oral forbearance agreement.

Summary judgment was granted to the bank and the defendants’ counterclaim was dismissed.