Allan Sternberg

Following a settlement between defendants and several third parties in a defective window litigation, the plaintiff sought disclosure of the settlement terms and scheduled a motion for that relief.

Before the motion proceeded, the plaintiff received sufficient information about the settlement through exchanged emails and draft releases and abandoned the motion but sought costs for bringing it.

The responding parties also sought their costs.

The court declined to determine the abstract merits of the abandoned motion solely for costs purposes and held that continuing the motion solely to support a costs claim was a waste of court and counsel resources.

No costs were awarded to any party.

The moving party sought an interlocutory injunction restraining the landlord from dealing with commercial property and sought leave to issue a certificate of pending litigation in a dispute over whether an agreement to lease remained binding after conditional periods and alleged waivers.

The court held there was a serious question to be tried on enforceability, including estoppel arising from the landlord's conduct, timing of waiver under a tenant diligence clause, and the landlord's delayed reliance on a financial-condition termination clause.

The court also found a serious question to be tried regarding specific performance because the property was arguably unique for the intended automobile dealership use.

Injunctive relief was continued only until the disposition of an expedited summary judgment motion, subject to $150,000 security and expanded undertakings as to damages.

Leave to issue a certificate of pending litigation was refused as unnecessary in light of the injunction.

Following an unsuccessful motion by certain defendants seeking removal of the plaintiff’s counsel from the record, the plaintiff sought costs.

The plaintiff requested substantial indemnity costs alleging the motion contained meritless allegations and misstatements of fact amounting to reprehensible conduct.

The court found the motion lacked merit and was ill‑conceived but declined to characterize the conduct as reprehensible.

The court held that reasonably generous partial indemnity costs were appropriate in the circumstances and fixed costs accordingly.

The plaintiff sought specific performance of an alleged oral agreement granting him a 10% equity interest in a startup company in exchange for his work.

In the alternative, he claimed oppression under s. 248 of the Business Corporations Act arising from his termination and the denial of equity.

The court found that no binding oral contract had been formed, emphasizing the absence of contemporaneous documentation and the lack of objective evidence of mutual intention to create legal relations.

The plaintiff therefore failed to establish offer, acceptance, and enforceable agreement.

The court also rejected the oppression claim, holding that the plaintiff was not a shareholder, officer, or director and had no reasonable expectation of equity.

Following dismissal of a motion for summary judgment arising from claims connected to a Ponzi scheme, the court determined the appropriate costs award.

The plaintiffs argued that no costs should be awarded due to the novelty of the factual circumstances, but the court held that novelty alone does not justify departing from the usual rule that costs follow the event.

The defendants sought either substantial indemnity or partial indemnity costs.

The court declined to award substantial indemnity costs, finding the plaintiffs’ litigation strategy unsuccessful but not unreasonable.

Partial indemnity costs were awarded to each defendant, with modest reductions applied to certain claimed amounts.

The plaintiffs and defendants were all victims of a Ponzi scheme orchestrated by an investment advisor.

The plaintiffs, who were late entrants to the scheme, provided bank drafts directly payable to the defendants, who were early entrants, under the mistaken belief they were investing in legitimate bridge financing.

When the scheme collapsed, the plaintiffs sued the defendants for the return of their money, alleging unjust enrichment and mistake of fact.

The plaintiffs brought a consolidated motion for summary judgment.

The court dismissed the motion, finding genuine issues for trial regarding whether the defendants were unjustly enriched or if the payments were made under a mistake of fact, and noting that the novel legal issues and ongoing bankruptcy proceedings required a full trial.

Following dismissal of a motion for an injunction seeking to enforce a non‑competition agreement, the court addressed the issue of costs.

The moving party had sought to enjoin former advisors and a financial services firm from operating a competing branch, but failed to establish an enforceable restrictive covenant or a serious issue to be tried.

The successful defendants sought partial indemnity costs.

The court held that one group of defendants was entitled to costs but denied costs to the corporate defendant due to its pre‑litigation conduct, which the court described as outrageous and contributing to the litigation.

Costs of $40,000 inclusive were awarded to the remaining defendants.

The plaintiff sought interlocutory injunctions enforcing non‑competition and non‑solicitation clauses in a 2004 agreement against several financial advisors and a related investment dealer after the advisors opened a competing branch nearby.

The court applied the RJR‑MacDonald test and considered whether the restrictive covenants were reasonable in geographic scope, temporal scope, and scope of prohibited activity.

Although the geographic scope was arguably reasonable and there was a serious issue to be tried regarding temporal scope, the court found the activity restrictions overly broad and therefore unreasonable.

As a result, the plaintiff failed to establish the required strength of case to justify interlocutory injunctive relief.

The balance of convenience also weighed against granting the injunction because a competing branch would operate regardless.

The motion for interlocutory injunctions was dismissed.

Following a resolved motion for an interlocutory injunction relating to the booking of exhibition space for a bridal show, the court was asked to determine costs.

Although the substantive injunction motion was not adjudicated, the moving party obtained alternative exhibition dates after commencing the motion.

The court held that the motion effectively prompted the resolution and therefore the moving party was successful for the purposes of costs.

Substantial indemnity costs were declined because the responding party’s conduct did not reach the level of reprehensible behaviour.

Partial indemnity costs of $50,000 inclusive of fees, disbursements and GST were awarded to the moving party.

Following a successful appeal where the appellant prevailed on all issues, the court determined the costs of the underlying trial and application.

The appellant sought over $270,000 in total costs.

Applying the principles of fairness and reasonableness, the Court of Appeal fixed the appellant's costs of the trial at $150,000 and the costs of the application at $25,000, payable by the respondents.

The appellant condominium corporation appealed a trial decision regarding the conversion of a commercial building into a residential condominium.

The Court of Appeal allowed the appeal, finding that the respondent Lomico was a 'declarant' under the Condominium Act, that a lease of HVAC equipment to the condominium corporation was null and void because the equipment formed part of the common elements, and that the developers breached the construction warranty by failing to substantially renovate the parking garage.

The Court dismissed the developers' cross-appeal, affirming that unit owners have an appurtenant property right to lease parking spaces at market rates.

Damages and market rates were directed to a reference.

The appellant school board appealed a trial judgment finding that an Education Development Levy Agreement (EDLA) between the parties was of no force and effect.

The EDLA provided for the payment of a school levy if development occurred on the respondent's lands, referencing a proposed zoning bylaw that was ultimately abandoned.

The Court of Appeal upheld the trial judge's finding that the EDLA was conditional on the proposed bylaw becoming law, as the agreement relied on the bylaw having independent legal effect to create the permitted maximum residential density.

The appeal was dismissed.

The respondent's cross-appeal for damages for breach of the same contract was also dismissed.

The appellant law firm sued the respondent lawyer for damages resulting from the respondent's breach of an undertaking to protect the appellant's account.

The trial judge found that the respondent breached the undertaking but dismissed the claim, finding the breach did not cause the appellant's loss, and awarded costs to the respondent.

On appeal, the Divisional Court upheld the dismissal on the merits, finding no palpable and overriding error in the trial judge's causation analysis.

However, the Court allowed the appeal on costs, holding that the trial judge erred in principle by awarding costs to a solicitor who breached an undertaking, as such conduct reflects adversely on the administration of justice.

The trial costs order was reversed to no costs.

The appellant appealed an order dissolving a constructive trust imposed on the shares of a joint venture vehicle.

The constructive trust had been imposed to secure the repayment of a loan and the payment of the appellant's share of the joint venture profits.

After the respondents paid the amounts owing, they moved to discharge the trust to utilize accumulated tax losses.

The Court of Appeal dismissed the appeal, finding that the constructive trust had served its purpose and the trial judge properly exercised his equitable discretion to dissolve it once the appellant had elected to pursue an accounting and received payment.

The appellant, a former owner of a Toronto property, retained an interest in the property's surplus density through a Density Agreement registered on title.

The property was subsequently sold to a company that later sought creditor protection under the CCAA.

A court-approved Settlement Order vested the property in the respondent 'free and clear' of claims.

The respondent successfully applied to the Superior Court to discharge the Density Agreement from title.

On appeal, the Court of Appeal held that the Settlement Order only applied to assets the debtor company actually owned, which did not include the surplus density.

The appeal was allowed and the Density Agreement remained on title.

The appellant appealed a trial judgment ordering him to pay $3.8 million for breach of a real estate joint venture agreement.

The appellant argued the respondent was disentitled to the funds for trading in real estate without a license and sought disgorgement of a commission.

The respondent cross-appealed for punitive damages and a higher rate of prejudgment interest.

The Court of Appeal dismissed both the appeal and cross-appeal, finding the respondent was exempt from licensing requirements as it was dealing with its own interest, the commission was properly disclosed, and the appellant's conduct did not meet the exceptional threshold required for punitive damages.

The respondents brought a motion to quash several paragraphs of the appellant's notice of appeal.

The appellant argued that the time for appealing the judgment in the second proceedings did not begin to run until the constructive trust issue was disposed of.

The Court of Appeal disagreed, finding that the order terminating the constructive trust was a post-judgment order and the time for appealing the earlier orders had expired.

The court also declined to extend the time for appealing, noting the appellant's consistent prior position that he had no intention to appeal.

The motion to quash was allowed and the specified paragraphs of the notice of appeal were struck.

The plaintiffs sought leave to appeal an order dismissing their appeal from a Master's decision.

The Master had ordered the return of inadvertently faxed expert reports but refused to expunge them from the record, allowing the defendants to reserve their right to seek production later.

The Divisional Court dismissed the motion for leave, finding no merit to the application because there was evidence supporting the Master's factual finding that the documents were not sent in error.

The successful respondents sought costs of the appeal in the amount of $23,013.02 on a partial indemnity basis.

The appellants argued the amount was excessive and suggested $6,731.58.

The Divisional Court found the respondents' claim high given the narrow and straightforward issue on appeal.

Applying the principles from Boucher, the court fixed costs at $12,000 all inclusive.

The appellant limited partnership appealed the dismissal of its application for declaratory and mandatory relief regarding a Sale and Dissolution Agreement.

The dispute centered on whether a conditional offer to purchase real estate satisfied the agreement's requirement that the property be 'sold' before the listing period expired.

The Court of Appeal held that in the commercial context of the agreement, which aimed to provide a clear end to the listing period and trigger a standstill obligation, the word 'sold' meant an unconditional sale.

The appeal was dismissed.