Alex Van Kralingen

This costs endorsement follows the court’s decision granting Ontario Heritage Trust’s application for a declaration of trespass and related relief.

The court considers the parties’ submissions on costs, including arguments about duplication of effort and offers to settle.

The Trust is awarded its requested costs of $90,000, and the Chippewas of Nawash Unceded First Nation is awarded $71,000, both to be paid by Mr. Hunter.

The court applies the principles from the Rules of Civil Procedure and the Courts of Justice Act, as well as appellate guidance on costs discretion.

The Ontario Heritage Trust sought a declaration of trespass and related relief regarding encroachments by Troy James Hunter onto land of significant cultural and spiritual importance to the Anishinaabe, co-managed with the Chippewas of Nawash Unceded First Nation.

The court found that the encroachments—including a cottage, driveway, well, and trees—constituted trespass and granted a mandatory injunction for their removal, emphasizing the unique, non-monetary value of the land and the inadequacy of damages as a remedy.

The court rejected arguments based on honest mistake, the Trust’s knowledge of the encroachments at purchase, and the Conveyancing and Law of Property Act, holding that the Ontario Heritage Act prevails and that the equities favoured the Trust and Nawash.

The decision resolves competing applications regarding the ownership and directorship of 2761499 Ontario Inc. (“276”) and related financial claims among parties involved in several investment companies.

The court finds that Gurvinder Singh Saini and Najinder Garcha are the only directors and shareholders of 276, rejecting Minkle Mittal’s claim to ownership or directorship.

The court also dismisses Mittal and Golden Freight Forwarding and Marketing Inc.’s counter-application for relief regarding other companies, finding no evidentiary basis for their claims.

Costs are awarded to Saini and Garcha.

The appellant, Losani Homes (1998) Ltd., appealed a lower court decision that found their employment termination clauses void but upheld the validity of a fixed-term employment contract for the respondent, Kim Kopyl.

Losani Homes argued that the invalidity of the termination clauses, per *Waksdale*, should also void the fixed-term clause, converting the contract to one terminable on reasonable notice with a duty to mitigate.

The Court of Appeal dismissed the appeal, affirming that the invalidity of termination clauses does not affect a fixed-term clause, distinguishing *Waksdale* and reaffirming *Howard v. Benson Group Inc.* The Court held that the employee was entitled to compensation for the unexpired portion of the fixed term without a duty to mitigate.

The anonymous plaintiffs brought an action and an urgent motion to prohibit the defendant from disclosing text messages they exchanged with her in the defendant's separate wrongful dismissal lawsuit against her former employer.

The court dismissed the action, finding that the plaintiffs improperly commenced the action using pseudonyms without leave, lacked standing to interfere with documentary discovery in another lawsuit, and failed to plead a valid cause of action.

The court emphasized that embarrassment or prejudice to third parties does not override a party's legal obligation to disclose relevant documents in litigation.

The plaintiff in a wrongful dismissal action brought a motion to compel production of documents and answers to questions refused during discovery, arguing the defendant waived solicitor-client privilege.

The alleged waiver occurred when a board member disclosed the 'bottom line' of legal advice to a workplace investigator, whose report was subsequently produced in the litigation.

The court dismissed the motion, finding that the board member lacked authority to waive privilege, the disclosure was merely an offhand comment revealing the bottom line of the advice, and the defendant did not rely on the advice to justify its termination of the plaintiff.

The plaintiff, Newton Crypto Ltd., brought a motion to strike the statements of defence of several defendants for failing to meet the minimum level of material fact disclosure required by the Rules of Civil Procedure, particularly regarding particularized allegations of fraud.

The court found the defences deficient, consisting of non-specific and blanket denials without providing the defendants' own version of facts.

The court rejected the defendants' argument regarding self-incrimination.

The statements of defence were struck, but with leave to amend within 20 days, and costs were awarded to the plaintiff.

The respondent Chippewas of Nawash Unceded First Nation brought a motion to strike portions of affidavits filed by the respondent Troy James Hunter and the applicant Ontario Heritage Trust, arguing settlement privilege.

The motion arose from an underlying application by the Trust seeking removal of encroachments by Hunter on a sacred site co-managed by the Trust and Chippewas.

The court dismissed the motion, finding that Chippewas lacked standing to assert privilege over communications between the Trust and Hunter, and that the Trust had waived its own settlement privilege by disclosing and relying on settlement communications in both a prior regulatory proceeding and the current application.

The court emphasized that privilege issues should be decided by the motion judge, not deferred to the application judge.

This appeal arose from a family dispute where the appellant, Kakouli Poka, sought to overturn a trial judgment that rejected her counterclaim for unjust enrichment based on a joint family venture and granted the respondents (Tsitsos family) a monetary remedy and accounting of property.

The appellant claimed a one-third partnership in a family pizza business and contributions of $150,000, as well as significant care for the respondents' son.

The trial judge found no joint family venture, disbelieved the appellant's financial contribution and work claims, and found the care for the son insufficient to establish a venture.

The Court of Appeal dismissed the appeal, upholding the trial judge's evidentiary rulings regarding a struck affidavit and admitted bank statements, and her application of the law of ouster and occupation rent.

A motion to admit fresh evidence on appeal was also denied, as it failed to meet the criteria for admission.

The plaintiff, Wasiem Diab, sought repayment of $161,000 allegedly loaned to the defendants, George and Haralabos Tsitsos (referred to as Bobby and Georgia), for a property purchase.

The defendants denied an oral loan agreement with Diab, asserting the money came from Kakouli Poka, who later revealed Diab as the source.

The court granted summary judgment, dismissing Diab's action.

The court found no direct oral agreement between Diab and Bobby, rejected theories of past consideration and agency, and concluded that the pleadings did not support claims against Georgia or the "primary debtor" theory.

Following a summary judgment motion in a wrongful dismissal action, the parties were unable to agree on the calculation of damages based on the court's methodology.

The plaintiff brought a motion to determine the amount of damages.

The court largely accepted the employer's calculation of unpaid commissions and average salary, finding it consistent with the employment contract and the court's previous reasons.

The court awarded the plaintiff total damages of $25,573.98, comprising unpaid commissions, unpaid bonuses, and notice period damages.

The plaintiffs brought an action against the defendant, the sister of one of the plaintiffs, regarding the allocation of proceeds from the sale of a jointly owned property, damages for ouster, and conversion of personal property.

The defendant counterclaimed for unjust enrichment, alleging she was a 50% beneficial owner of the plaintiffs' restaurant businesses under a joint family venture.

The Superior Court of Justice dismissed the counterclaim, finding no joint family venture existed in this extended family context and that the defendant failed to prove she made a direct financial contribution.

The court granted the plaintiffs' action in part, awarding damages for the defendant's ouster of the plaintiffs from the joint property and for the conversion of various personal items, including a grand piano.

The plaintiff brought a motion in writing for default judgment against his former employer for wrongful dismissal.

The court first determined that the action was not statute-barred because the limitation period was suspended under the Emergency Management and Civil Protection Act due to the COVID-19 pandemic.

The court noted the defendant in default and found the plaintiff was entitled to damages in lieu of reasonable notice.

Applying the Bardal factors, the court awarded a 20-month notice period, resulting in damages of $91,667.00, without deductions for mitigation income as the employer failed to meet its burden of proof.

The plaintiff brought a motion to set aside a Registrar's order dismissing his action for delay.

The action involved a claim for repayment of a $161,000 loan allegedly made to the defendants for a property purchase.

The court applied the Reid test and found that the plaintiff provided a reasonable explanation for the delay, the deadline was missed through the inadvertence of his former counsel, the motion was brought promptly once the dismissal was discovered, and the defendants would not suffer actual prejudice.

The motion was granted and the dismissal order was set aside.

The defendants brought a motion to set aside a default judgment obtained by the plaintiff for unauthorized shipping charges.

The court applied the five-factor test for setting aside a default judgment.

The court found that the defendants did not bring the motion promptly, deliberately evaded service and ignored the litigation, and failed to present an arguable defence on the merits.

The motion to set aside the default judgment was dismissed.

The defendant brought a motion under section 137.1 of the Courts of Justice Act to dismiss the plaintiff's defamation action.

The action arose from Facebook posts made by the defendant alleging workplace harassment and poor business practices by the plaintiff travel agency following a dispute with a former employee.

The court found that while the expression related to a matter of public interest, the plaintiff's claim had sufficient merit and the harm suffered was serious enough that the public interest in allowing the action to proceed outweighed the public interest in protecting the expression.

The motion was dismissed.

Following the dismissal of the plaintiff's wrongful dismissal action, the successful defendant sought costs on a substantial indemnity basis.

The defendant argued that the plaintiff's interpretation of the termination clause was without merit, that she caused unnecessary delays, and that she made unwarranted personal attacks on defense counsel.

The court rejected the request for substantial indemnity costs, finding the plaintiff's legal arguments plausible and her conduct as a self-represented litigant not reprehensible.

Costs were awarded to the defendant on a partial indemnity basis in the amount of $54,313.45.

The plaintiff, a law clerk, was terminated without cause after 13 years of employment.

The employer provided her with her minimum entitlements under the Employment Standards Act, relying on a termination clause in her employment contract.

The plaintiff sued for wrongful dismissal, arguing the termination clause was invalid for failing to explicitly provide for the continuation of benefit plan contributions during the statutory notice period, or alternatively, that it was unconscionable.

The court held that the termination clause was legally enforceable as it incorporated the minimum statutory requirements by reference and did not attempt to contract out of the Act.

The action was dismissed.

In the alternative, the court found that had the clause been invalid, the plaintiff would have been entitled to nine months' common law notice and compensation for a lost bonus opportunity.

The appellant appealed a motion judge's decision that permitted it to file a third amended statement of claim but precluded it from referring to five prior shipments or claiming damages in respect of those shipments.

The motion judge found that the limitation period had expired for the five prior shipments and that this constituted uncompensable prejudice, thus barring the amendment.

The Court of Appeal upheld the decision, rejecting the appellant's arguments that the limitation period applies only to unrelated statute-barred claims and that new claims cannot be added to a claim already commenced.

The applicants, a married couple, were long-term employees of the respondent.

The wife suffered a workplace fall and experienced mental health issues, leading to a WSIB claim and unusual workplace behaviour.

The respondent laid off both applicants earlier than planned and subsequently failed to recall them after they alleged human rights violations.

The Tribunal found that the respondent failed to accommodate the wife's mental disability and that her disability and WSIB claim were factors in her early lay-off.

The Tribunal also found that the husband was laid off due to his marital status.

Furthermore, the respondent's refusal to recall the applicants constituted reprisal.

The Tribunal awarded damages for lost wages and injury to dignity, feelings, and self-respect.