Andrew N. Sahai

The plaintiff sought summary judgment on a second mortgage after the defendant defaulted.

The defendant admitted the default but argued the mortgage was unconscionable and signed under duress due to high interest rates.

The court found no evidence of unconscionability or duress, noting the defendant was well-educated, had independent legal advice, and negotiated the terms.

Summary judgment was granted for the principal and interest.

However, the court reduced the plaintiff's claimed full indemnity costs from nearly $237,000 to $100,000, finding the requested amount grossly disproportionate and unreasonable for a straightforward summary judgment motion.

A vacant land condominium corporation sought damages and disgorgement of profits against its former directors and various defendants, alleging breach of fiduciary duty in connection with the release of easements burdening adjacent land.

The plaintiff claimed the directors received secret benefits in exchange for facilitating the release of easements valued at approximately $31.5 million.

The court found that the corporation was contractually obligated to release the easements pursuant to easement release provisions in registered agreements, and that the plaintiff failed to prove the directors received secret benefits or breached their fiduciary duties.

The court dismissed the plaintiff's claim and the counterclaim.

The court considered whether, at a case conference, an associate judge has jurisdiction to determine if the plaintiff may examine a third party in the main action under the Rules of Civil Procedure.

The plaintiff sought to examine Andrew Clark, a third party, but the associate judge found that such a determination would constitute interlocutory relief, which is beyond the jurisdiction of an associate judge at a case conference.

The request was denied, and the plaintiff was directed to bring a motion if it wished to pursue the matter.

The court considered whether the plaintiff, Gaurav Tewari, should be permitted to bring a motion for an interlocutory injunction under Rule 40 of the Rules of Civil Procedure against multiple defendants, given his outstanding costs orders from previous litigation.

The court found that it would be unfair to allow further motions until the costs orders were satisfied, despite the plaintiff's claims of significant assets.

The motion was not permitted to proceed at this time.

This endorsement from a case conference addresses the procedural management of two related actions (Desiccare and Cargill) involving the same self-represented plaintiff.

The primary issue was whether the plaintiff's summons motion to examine non-parties and the defendants' jurisdiction motion in the Cargill action should be heard separately or together.

Citing judicial economy and the plaintiff's outstanding costs orders from previous unsuccessful appeals, the court ordered that both motions be heard concurrently by the same judge.

The decision also touched upon the principle of not ordering examinations before jurisdiction is decided.

The Kahu Defendants moved to dismiss Park Lawn Corporation's action for knowing assistance as an abuse of process under Rule 21.01(3)(d), arguing it was an improper attempt to re-litigate issues from a previously settled action against a former CEO.

The court denied the motion, finding that Park Lawn was not aware of the Kahu Defendants' alleged misconduct at the time of the previous settlement, the facts and causes of action were not identical, and the case law allows for several liability in knowing assistance claims, which was consistent with the terms of the prior release.

The court also clarified that a consent dismissal does not automatically lead to an abuse of process finding unless the issues could have been raised in the prior action.

The defendants, Michael Slattery and Skylark Holdings Ltd., brought a motion for summary judgment to dismiss the action against them.

They argued that the plaintiffs had not sustained any damages and had breached the immediate disclosure rule by failing to disclose a partial settlement agreement.

The court dismissed the motion, finding a genuine issue for trial regarding damages due to conflicting evidence on reliance, and determining that the partial settlement did not significantly alter the litigation dynamics to constitute a breach of the immediate disclosure rule.

The self-represented moving party brought a motion for leave to appeal from a decision of P. Sutherland J. dated July 20, 2023.

The Divisional Court dismissed the motion for leave to appeal with no order as to costs.

The appellant, Gaurav Tewari, appealed the dismissal of his action for lack of jurisdiction and associated costs orders.

He claimed intellectual property rights violations and breach of agreements.

The motion judge dismissed the action, finding no real and substantial connection to Ontario, no attornment, and that the appellant, acting in a personal capacity, could not rely on a corporate non-disclosure agreement for jurisdiction.

The appellant sought to adduce fresh evidence (earlier agreements) on appeal, which was denied due to lack of due diligence.

The Court of Appeal upheld the motion judge's findings on jurisdiction and denied leave to appeal the costs orders, finding no palpable and overriding error or error in principle.

The Court of Appeal for Ontario issued supplementary reasons regarding the remedy and costs following its prior decision (2023 ONCA 139) which declared s. 37.10.1(2) of the Election Finances Act unconstitutional.

The appellants sought to invalidate additional provisions, including the definition of "political advertising" s. 37.0.1, s. 37.10.1(3)-(3.1), and s. 37.10.2.

The court declined this request, finding these provisions were not inextricably linked to the previously invalidated section and were not independently shown to infringe section 3 of the Canadian Charter of Rights and Freedoms.

The court also noted that the election period spending limits (s. 37.10.1(1)) were not challenged and remain in force.

No disposition was made as to costs, as the parties had reached an agreement.

This costs endorsement followed a successful motion by the defendants to strike pleadings against the individually named directors of the defendant condominium corporation.

The defendants sought costs on a substantial or partial indemnity basis, while the plaintiff argued for a lower partial indemnity amount.

The court considered factors under Rule 57.01 and the principle of proportionality, finding the plaintiff's decision to name the directors personally ill-advised and unnecessary, but not egregious.

The court awarded partial indemnity costs to the defendants.

Following an appeal, the Court of Appeal for Ontario issued a costs endorsement.

The appellants were ordered to pay the respondent's costs of the appeal, fixed at $27,689.52 inclusive of HST on a partial indemnity scale.

This appeal concerned the constitutional validity of Ontario's third-party election spending limits, specifically the extension of the pre-writ restricted period from 6 to 12 months without increasing the spending cap.

The appellants argued this infringed the informational component of the right to vote under s. 3 of the Charter, which is not subject to the notwithstanding clause (s. 33).

The Court of Appeal found that while s. 33 was properly invoked, the extended spending restrictions were not "carefully tailored" and did not permit a "modest informational campaign" thereby infringing the s. 3 right to meaningful participation in the electoral process.

The infringement was not justified under s. 1 of the Charter.

The court declared the impugned provision invalid and suspended the declaration for 12 months.

The appellants appealed the dismissal of their anti-SLAPP motion, which sought to dismiss a defamation counterclaim brought by the respondent.

The motion judge found that the respondent had suffered sufficient harm and that the public interest in permitting the counterclaim to continue outweighed the public interest in protecting the appellants' expression, noting the strategic nature of the motion.

The Court of Appeal dismissed the appeal, holding that the motion judge made no reviewable errors in inferring harm from the serious allegations or in conducting the weighing exercise.

The court also upheld the motion judge's discretionary award of partial indemnity costs to the respondent.

The defendants brought a motion to strike portions of the plaintiff's fresh as amended claim, specifically allegations against individual board members, for inducing breach of contract, unjust enrichment, breach of trust, knowing receipt of trust funds, and knowing assistance of breach of trust.

The court found no discernible conduct by the directors separate from their corporate roles to ground personal liability.

The allegations lacked sufficient particulars and offended the indirect benefit prohibition for unjust enrichment.

The court granted the motion, striking all claims against the individual directors without leave to amend, citing the lack of a tenable cause of action and public policy considerations against litigation by intimidation.

The plaintiffs brought a motion to compel the production of financial records relating to mortgages held by the defendants in trust for the plaintiffs, alleging a fraudulent scheme to misappropriate funds.

The defendants argued that the documents should be produced in the ordinary course of litigation.

The court held that beneficiaries of a trust have a proprietary right to records relevant to an accounting for the trust property, separate from the ordinary rules of discovery, and ordered the defendants to produce the requested documents or confirm their non-existence.

The moving parties, Park Lawn Corporation and J. Bradley Green, brought an anti-SLAPP motion to dismiss a defamation counterclaim, which was denied.

The responding party, Kahu Capital Partners Ltd., sought costs for the motion.

The court exercised its discretion under s. 137.1(8) of the Courts of Justice Act to award partial indemnity costs to the responding party, finding that the moving parties engaged in unnecessary provocative litigating in the public domain and opportunist cost-mongering.

Park Lawn Corporation and its CEO, J. Bradley Green, brought an anti-SLAPP motion to dismiss a defamation counterclaim filed by Kahu Capital Partners Ltd. The counterclaim arose after Green made allegedly defamatory statements about Kahu Capital in a trade newsletter, accusing the firm of complicity in the alleged wrongdoings of Park Lawn's former CEO.

The court dismissed the anti-SLAPP motion, finding that while the statements related to a matter of public interest, there were grounds to believe the counterclaim had substantial merit and that the moving parties had no valid defence.

The court concluded that the harm suffered by Kahu Capital outweighed the public interest in protecting the expression.

This endorsement addresses the costs arising from a second Charter challenge to Ontario's election advertising spending restrictions (Bill 307), which the Attorney General successfully defended.

The Attorney General sought $580,652.54 in costs.

The Applicants argued against a costs award, citing the public importance of constitutional litigation and access to justice, and challenged the quantum of costs.

The court rejected the Applicants' access to justice argument, noting their financial capacity, and found the Attorney General's choice of external counsel and the work performed to be reasonable.

The court awarded the Attorney General $500,000 in all-inclusive costs, apportioned among the Applicant groups.

The applicants challenged the constitutionality of amendments to the Election Finances Act that imposed a 12-month pre-writ restricted spending period for third-party political advertising.

The government had previously enacted similar amendments that were struck down under section 2(b) of the Charter, but re-enacted them using the section 33 notwithstanding clause.

The applicants argued the amendments violated the right to vote under section 3 of the Charter, which is not subject to the notwithstanding clause.

The court dismissed the application, finding that the spending limits were carefully tailored to the egalitarian model of elections and did not infringe the right to meaningful participation in the electoral process.