Amanda C. McLachlan

This is a costs endorsement following motions regarding refusals on cross-examinations in a proposed class action.

The plaintiff's motion for refusals was largely dismissed, while the Solart defendants' cross-motion regarding the plaintiff's refusals was allowed.

The court considered various factors under Rule 57.01(1) of the Rules of Civil Procedure and Section 131(1) of the Courts of Justice Act, emphasizing that substantial indemnity costs are reserved for "reprehensible, scandalous, or outrageous conduct." While the plaintiff's counsel's conduct was deemed unreasonable, it did not generally meet this high threshold, except in the case of Martin Yockell, where class counsel's conduct during cross-examination was found to be reprehensible, warranting substantial indemnity costs.

The court also addressed the recoverability of costs for pro bono counsel and costs thrown away.

The defendants (Moving Parties) sought an order for the issuance of two letters of request to judicial authorities in the Kingdom of Saudi Arabia to compel the examination of two witnesses, Yasir O. Al-Rumayyan and Fahad Nasser Alarfaj.

The Moving Parties argued these witnesses had relevant evidence for their motion to set aside Mareva orders, particularly regarding alleged contradictory positions taken by the plaintiffs (controlled by Saudi Arabia's Public Investment Fund) in this action versus unrelated U.S. litigation (LIV Golf Litigation) concerning PIF's independence from the KSA government.

The motion was unopposed by the plaintiffs.

The court found the proposed witnesses had prima facie relevant evidence and that the requirements under Rules 39.03 and 34.07(2) for examining non-parties and issuing letters of request for witnesses outside Canada were met.

The order for letters of request was granted.

This ex-parte motion was brought by the plaintiffs for a Mareva injunction and an Anton Pillar order in aid of litigation in the United States District Court for the Southern District of New York.

The plaintiffs alleged a complex fraud perpetrated by the defendants, involving falsified investment schemes and forged documents.

The court found a strong prima facie case, a real risk of asset dissipation and destruction of evidence by the defendants, and that the balance of convenience favored granting the orders.

The court affirmed its jurisdiction to grant such equitable relief in aid of foreign proceedings.

Mareva injunction, Anton Pillar order, and a sealing order were granted.

This is an appeal from a motion judge's decision to assume jurisdiction over foreign defendants in a complex international fraud and conspiracy case.

The respondents (original plaintiffs) alleged that a Toronto resident orchestrated a scheme to misappropriate billions of dollars from Saudi Arabian corporations and dissipate them globally, with the assistance of family members and various corporate entities.

The appellants (foreign defendants) challenged Ontario's jurisdiction, arguing a lack of real and substantial connection.

The motion judge found jurisdiction based on contracts made in Ontario (including a gift deed central to the alleged scheme), property located in Ontario, and the tort of conspiracy being committed in Ontario.

The Court of Appeal upheld the motion judge's decision, finding no palpable and overriding factual errors or legal errors in applying the Van Breda test for jurisdiction, and dismissed the appeal.

The moving party defendants brought a motion to dismiss or permanently stay the action against them, arguing the Ontario Superior Court lacked jurisdiction.

The plaintiffs alleged a massive international fraudulent scheme involving the misappropriation of $3.5 billion USD, with funds allegedly traced to the moving parties.

The court applied the Van Breda test and found a real and substantial connection to Ontario based on contracts formed in the province, property located in Ontario, and the necessity of hearing the claim as a whole in a single jurisdiction.

The motion was dismissed with costs awarded to the plaintiffs.

This complex motion involved the defendants, Dr. Saad and the Canadian Companies, seeking to set aside ex parte Mareva injunctions, Norwich orders, and receivership orders previously granted to the plaintiffs.

The defendants argued material non-disclosure by the plaintiffs, particularly regarding the political motivations behind the litigation and the legitimate commercial relationships between the parties.

The plaintiffs sought to continue and vary the orders.

The court found no material non-disclosure sufficient to set aside the Mareva order against Dr. Saad, continuing it.

However, the Norwich and Receivership orders against the Canadian Companies were set aside due to non-material but impactful non-disclosure that changed the factual landscape, making the orders overly broad.

The court also addressed the application of the deemed undertaking rule for documents obtained through Norwich orders.

Following a summary judgment motion where the plaintiff succeeded against the corporate defendant and one individual defendant (Brar) for breach of contract and fraudulent misrepresentation, but failed on the fraud claims against the other individual defendant (Sharma), the court determined costs.

The plaintiff was awarded substantial indemnity costs of $55,000 against Brar due to the finding of fraud.

The corporate defendant was held jointly and severally liable for $40,000 of those costs on a partial indemnity basis.

No costs were awarded to or against Sharma due to divided success.

The plaintiff, a factoring company, sought summary judgment against a transport company and its directors for breach of contract and fraudulent misrepresentation related to uncollectible accounts receivable.

The court granted summary judgment for breach of contract against all defendants and for fraudulent misrepresentation against one director (Brar).

However, the fraud claims against the other director (Sharma) were dismissed due to insufficient evidence of his knowledge or recklessness.

The court also addressed the principles of summary judgment, partial summary judgment, and piercing the corporate veil.

The plaintiff, Atlas Copco Canada Inc., brought a motion for contempt of a Mareva injunction against Dirk Johannes Plate and Maria Van Noorden Plate for selling properties despite court orders.

The defendants brought a cross-motion seeking a stay of action against Mr. Plate and dismissal of the action against Mrs. Plate.

The court dismissed the plaintiff's contempt motion, finding no intentional breach by the defendants due to the plaintiff's own non-compliance with the orders and lack of pursuit of real property claims.

Mr. Plate's cross-motion for a stay was dismissed, as the plaintiff was entitled to set off appeal costs against Mr. Plate's restitution debt.

Mrs. Plate's cross-motion to dismiss the action against her was granted on the grounds of merger of claims and, alternatively, inordinate and inexcusable delay by the plaintiff causing prejudice.

This decision addresses costs for an original summary judgment motion after the Court of Appeal set aside the judgment against the defendant, Mr. Plate.

Mr. Plate sought substantial or partial indemnity costs, arguing the plaintiff's motion was unreasonable.

The plaintiff, Atlas Copco, sought to deny costs or have them "in the cause." The court found the plaintiff's summary judgment motion was reasonably brought and did not warrant substantial indemnity costs as a sanction under Rule 20.06(a).

While Mr. Plate was successful on appeal, the original motion significantly narrowed the issues for trial, benefiting both parties.

Considering the divided success and the plaintiff's status as a crime victim, the court ordered that costs of the summary judgment motion be "in the cause," to be determined by the trial judge.

The appellant, a former General Manager and Vice President of the respondent's Construction and Mining Technique division, was convicted of fraud over $5,000 following a jury trial.

The sentencing judge found that the appellant's participation in a fraudulent scheme involving inflated invoices constituted a gross breach of fiduciary duty.

The respondent subsequently moved for summary judgment in its civil action for breach of fiduciary duty, seeking $20 million in damages.

The motion judge granted summary judgment relying solely on the sentencing judge's findings.

The appellant appealed, arguing that the motion judge erred in granting summary judgment based on findings made under s. 724(2)(b) of the Criminal Code that were not express or implied in the jury's verdict.

The plaintiff brought a motion for summary judgment against the defendant, a former executive, for $20 million in damages arising from a fraudulent kickback scheme.

The defendant had previously been convicted of fraud in a criminal trial and sentenced to five years in prison.

The court applied the doctrine of abuse of process to rely on the factual findings of the criminal sentencing judge.

While the court dismissed the claims for civil conspiracy and civil fraud due to insufficient evidence of the defendant's active involvement in the broader scheme, it granted summary judgment for breach of fiduciary duty.

The court found the defendant's passive acquiescence and failure to stop the known fraud breached his fiduciary duties, making him liable for the full $20 million loss.

The Monitor in the CCAA proceedings of Nortel Networks Corporation brought a motion to pass its accounts and those of its legal counsel for the period from January 2009 to May 2016.

The fees sought totaled over $250 million CAD and USD combined.

The court applied the Belyea factors to assess the fairness and reasonableness of the fees.

Despite the unprecedented size of the fees, the court found them justified given the massive scale, complexity, and duration of the cross-border insolvency, the extraordinary powers granted to the Monitor, and the highly successful results achieved for the Canadian estate.

The accounts were approved in full.