Andrew J. F. Lenz

The appellant brought an application under s. 11 of the Solicitors Act to assess paid accounts rendered by the respondent solicitors.

The application judge dismissed the application, finding no special circumstances justified a referral, noting the appellant's principal was a sophisticated lawyer and businessman who paid the detailed accounts voluntarily.

On appeal, the appellant argued the judge failed to independently assess if the fees were excessive based on partial indemnity costs sought on a motion.

The Court of Appeal dismissed the appeal, finding no error in principle or unreasonable result in the application judge's exercise of discretion.

The plaintiffs appealed a motion judge's decision dismissing their request for a Mareva injunction.

The Divisional Court upheld the decision, finding the motion judge applied the correct legal test requiring a strong prima facie case and made no palpable and overriding error in concluding the plaintiffs failed to meet this burden or the balance of convenience test.

The appeal was dismissed with costs.

This decision addresses a dispute over costs following a successful motion.

The Applicant sought costs on a substantial indemnity basis, while the Respondent requested that costs be reserved to the trial judge.

Applying Rule 57.03(1) of the Rules of Civil Procedure and principles from *Intercontinental Forest Products SA v. Rugo* and *Rogers Cable TV Ltd. v. 373041Ontario Ltd.*, the court found that a trial was a virtual certainty and that the Applicant would not be substantially prejudiced by a delay.

Consequently, the court reserved the award of costs, including the basis of indemnity, to the trial judge.

The moving defendant sought summary judgment dismissing claims for breach of contract, misrepresentation, and unjust enrichment arising from negotiations for the purchase of a steam turbine generator for a co‑generation project.

The plaintiffs alleged that a binding contract arose from a purchase order and letter of intent and that the moving defendant participated in the negotiations and misrepresented issues affecting the project.

The moving party argued no contract was ever concluded and that any dealings were solely with a related corporate entity.

Applying the principles from Hryniak v. Mauldin, the court held that genuine issues requiring a trial existed, including the role of the moving defendant in negotiations, whether contractual relations were formed, and whether misrepresentations or unjust enrichment occurred.

Given the complex factual matrix and credibility issues, summary judgment was inappropriate.

The plaintiffs sought continuation of an ex parte Mareva injunction freezing the defendant’s assets in a civil action alleging fraud, negligent misrepresentation, and unjust enrichment arising from more than $1.6 million paid over thirteen years for alternative therapy.

The court considered whether the plaintiffs established a strong prima facie case and whether the balance of convenience favoured continuation of the injunction.

The court found the plaintiffs failed to demonstrate a strong prima facie case, noting that the payments were voluntarily made for services provided by an astrologist and medium whose credentials were not misrepresented.

The court accepted an undertaking that the net proceeds from the defendant’s Quebec residence would be held in trust pending further order.

The Mareva injunction was therefore not continued except for the confidentiality provisions.

Following dismissal of a motion seeking leave to issue a certificate of pending litigation (CPL), the successful party sought elevated and partial indemnity costs.

The court considered the discretionary authority under s. 131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, emphasizing proportionality under Rule 1.04(1.1).

Allegations that the successful party had acted in bad faith were rejected, and the court found no basis for elevated costs because there was no reprehensible conduct.

Given the complexity of the motion, the extensive evidentiary record, and the significant commercial property interests involved, partial indemnity costs were found fair and reasonable.

Costs were fixed at $35,000 inclusive of HST and disbursements.

The plaintiff brought a motion for summary judgment in a dispute between brothers concerning an alleged loan.

The motion had previously been adjourned due to deficiencies in the record and later struck from the list because it was not confirmed in accordance with Rule 37.10.1 of the Rules of Civil Procedure.

The court considered whether the motion should proceed and whether procedural consequences should follow.

Given credibility issues, the largely oral nature of the alleged agreement, and the absence of discovery, the court found the summary judgment motion premature and inefficient.

The motion was dismissed, the defendant was granted costs thrown away on the motion, and the action was directed to proceed through production, discovery, and trial preparation under case management.

The plaintiff sought leave to issue a certificate of pending litigation (CPL) in relation to a commercial agreement of purchase and sale for a medical office property.

The plaintiff alleged breach of warranty regarding lease terms and sought specific performance with an abatement of the purchase price.

The court found there was a triable issue concerning breach of the agreement and that the plaintiff had a plausible claim to an interest in land.

However, applying the principles from Semelhago and Southcott, the court concluded that the property was acquired as a commercial investment and that damages would be an adequate remedy.

Considering equitable factors and the balance of convenience, the court declined to grant leave to issue the CPL.