Andrew Ostrom

Following a successful appeal from a Superior Court judgment, the Court of Appeal determined costs for the proceedings below.

After reviewing both parties' submissions, the court awarded costs of $25,000, inclusive of HST and disbursements, to the appellant, payable forthwith.

The moving parties sought a finding that the respondents breached an interim order restraining the founder and controlling shareholder from participating in management of a publicly traded company and restraining the shareholder from using voting shares to remove directors.

The court found the founder in contempt for communications to the SEC that constituted indirect participation in management, but declined to find contempt against the shareholder and company, finding the relevant order provision was declaratory rather than directive.

The court scheduled a penalty phase to consider purging of contempt.

The applicant sought leave to appeal an arbitration award interpreting a Condominium Services Agreement (CSA) between a condominium corporation and a service provider.

The arbitrator had ruled that the CSA permitted the service provider to include profit in fee increases during the COVID-19 pandemic when services were curtailed.

The applicant argued the arbitrator erred by allowing the factual matrix to overwhelm the contract language, failing to construe the contract as a whole, and relying on subjective intentions.

The court granted leave to appeal on these extricable questions of law but dismissed the appeal, finding no errors of law.

The court also rejected allegations of bias.

The moving party brought a motion for leave to appeal a lower court decision.

The Divisional Court dismissed the motion for leave to appeal and ordered costs payable to the responding parties in the fixed amount of $2,712.

The Court of Appeal for Ontario allowed the appeal of Danjing Han, setting aside a trial judgment that had awarded the respondents $302,000 for civil deceit and unjust enrichment.

The appellate court found that the trial judge erred in relying solely on admissions in the Statement of Defence to establish liability, without making any factual findings or determining the elements of the causes of action.

The court concluded that the admissions did not amount to admissions of liability and that the respondents had not met their burden of proof.

The plaintiff, Xiaowei Fan, sought summary judgment in a negligence and fraudulent misrepresentation action arising from the death of his dog, Lulu, after boarding at Cute Pet Resort Inc. The court found that there were genuine issues requiring a trial, including causation, standard of care, and the effect of contractual limitation of liability.

The court also noted unresolved factual disputes regarding the alleged misrepresentation and the adequacy of water provided to the dog.

The motion for summary judgment was dismissed, as was the counterclaim, due to the risk of inconsistent findings.

The defendant, Chartered Professional Accountants of Ontario (CPAO), sought summary judgment to dismiss the plaintiff's claim for misfeasance in public office and breach of fiduciary duty, arguing the claim was statute-barred by the Limitations Act.

The plaintiff, an aspiring accountant, alleged CPAO manipulated his Common Final Examination (CFE) results, leading to his deregistration.

The court found that the plaintiff's claim was discoverable on November 27, 2020, when he received his CFE results, and his subsequent appeal of the deregistration decision did not toll the limitation period as it was not an adequate alternative remedy for challenging the exam results.

The plaintiff failed to rebut the statutory presumption of discoverability.

Consequently, the defendant's motion for summary judgment was granted, and the plaintiff's action was dismissed as being out of time.

The plaintiff obtained an ex parte Mareva injunction against multiple defendants, including Nova Diamonds Inc. and Toronto Reserve Gold Inc., alleging they received proceeds from a fraudulent mortgage.

The moving defendants sought to set aside the injunction, arguing the plaintiff failed to make full and frank disclosure on the ex parte motion.

The court found that the plaintiff failed to disclose that it had not conducted a tracing analysis to confirm the funds received by the moving defendants were actually the fraudulent proceeds, and that it had no evidence of a risk of dissipation.

The court set aside the Mareva injunction and subsequent non-dissipation orders against the moving defendants due to the plaintiff's material non-disclosure.

The plaintiffs brought a motion to strike the defendant's amended counterclaim, alleging it was an abuse of process (a collateral attack on a prior assessment officer's report) and failed to disclose a recognized cause of action under Rules 21 and 25.

The court found that the counterclaim impermissibly sought to re-litigate issues that could have been raised before the Assessment Officer or through an appeal of the Assessment Report.

Furthermore, the defendant's own pleading indicated no monetary damages, which is a constituent element of the alleged causes of action (breach of contract, fiduciary duty, negligence, and deceit).

The motion was granted, and the defendant's counterclaim was struck without leave to amend, as the defendant had already had one opportunity to amend and failed to provide particulars.

The plaintiffs moved for an order refusing confirmation of an Associate Justice's report concerning a fixed-price construction contract dispute.

The plaintiffs challenged findings related to extra costs, admissions in a Scott Schedule, and deficiencies/uncompleted work.

The court largely upheld the Associate Justice's findings, affirming the fixed-price nature of the contract and the requirement for written authorization for extras.

However, the court found that the Associate Justice overlooked a $4,500 concession by the defendants in the Scott Schedule regarding drywall charges, granting the plaintiffs this additional credit.

The court also upheld the original costs award from the Associate Justice's report and awarded the defendants $4,000 in costs for the current motion, reflecting their overall success.

The applicants, condominium unit owners, sought an order prohibiting their neighbours from smoking inside and outside their unit, alleging the smoke migration constituted a nuisance.

They also sought an order compelling the condominium corporation to enforce its governing documents.

The Condominium Authority Tribunal found that the condominium corporation had taken reasonable steps to investigate and mitigate the smoke migration, including retaining engineers and completing sealing work.

The Tribunal concluded that the remaining smoke did not constitute an unreasonable nuisance under the Condominium Act, as smoking was not prohibited by the corporation's rules.

The application was dismissed without costs.

This is an appeal from summary judgment dismissing the appellant’s action claiming damages for malicious prosecution.

The underlying criminal prosecution rested on allegations that the appellant fraudulently received social assistance.

The appellant raised several grounds of appeal, including errors regarding partial summary judgment, the determinative nature of prior judicial determinations on reasonable cause, sufficiency of reasons, and failure to infer malice.

The Court of Appeal dismissed the appeal, finding no errors in the motion judge's approach and upholding the dismissal of the malicious prosecution claim.

The appellants appealed a trial decision concerning debts and damages arising from a dissolved business partnership.

The appeal raised two grounds: a credit allowed to the respondents by the trial judge and the calculation of interest on promissory notes.

The Court of Appeal upheld the trial judge's factual findings regarding the respondents' financial contributions, applying the principle of deference to findings of fact.

It also affirmed the application of Section 4 of the Interest Act, which limits interest rates on promissory notes that do not explicitly state an equivalent yearly rate, rejecting arguments based on prior oral understandings or customary rates.

The appeal was dismissed, and costs were awarded to the respondents.

The appellants appealed a Small Claims Court judgment finding them jointly and severally liable for $11,250 based on unjust enrichment after allegedly failing to deliver money to the respondent's relatives in Egypt.

The Divisional Court granted the appeal and ordered a new trial, finding that the Deputy Judge's reasons were insufficient to permit meaningful appellate review because they failed to explain why contradictory evidence was resolved in the respondent's favour.

The court also found the Deputy Judge erred in law by admitting a bank document obtained through bribery without ensuring compliance with the rules of evidence, and made a palpable and overriding error by misapprehending the contents of a translated Egyptian police report.

The plaintiffs, a builder and his wife, claimed a construction lien and damages for breach of contract and delay against the defendant homeowners, who counterclaimed for deficiencies and uncompleted work.

The court found the construction contract was a fixed-price agreement, not cost-plus, and that the plaintiffs failed to prove entitlement to extras due to lack of written authorization as required by the contract.

The court allowed some of the defendants' back-charges for deficiencies and uncompleted work against a holdback.

It also found both parties equally responsible for project delays, awarding the plaintiffs a portion of their claimed delay damages.

Ultimately, the plaintiffs were awarded a net amount significantly less than their initial claim.

The Attorney General of Ontario brought a summary judgment motion to dismiss a malicious prosecution claim initiated by Anthony Okafor.

Okafor's claim arose from a prolonged criminal prosecution for fraud related to Workers' Compensation Board benefits, which concluded with a permanent stay of proceedings after 17 years.

The Attorney General argued that the prosecution was conducted with reasonable and probable cause and without malice.

The court granted the motion, finding that Okafor failed to establish the absence of reasonable and probable cause or the presence of malice, both essential elements for a malicious prosecution claim against Crown prosecutors.

The plaintiff subcontractor brought an unopposed motion for leave to amend its statement of claim to add a corporate party and its principal as defendants, and to add allegations of breach of statutory trust under the Construction Act.

The court expressed concerns that the proposed amendments failed to plead a contractual relationship with the proposed defendants, which is required for a contractor's trust claim.

The court also noted that O. Reg. 302/18, section 3(2) likely prohibits the joinder of trust claims with lien claims.

Following these comments, the plaintiff withdrew the motion.

The plaintiff failed to set a construction lien action down for trial within the statutory two-year period, resulting in the lien being dismissed.

The defendant brought a motion to dismiss the underlying contract action due to delay.

The court dismissed the motion, finding that the defendant had not suffered specific prejudice and emphasizing the principle that disputes should be resolved on their merits.

The action was permitted to proceed as a contract claim.

The plaintiff sought costs of $15,975 following a successful summary judgment motion regarding a failed real estate transaction.

The plaintiff argued for partial indemnity costs up to the date of a Rule 49 offer to settle and substantial indemnity costs thereafter, citing the defendant's unsubstantiated allegations of fraud.

The defendant argued for reduced costs due to limited means and alleged partial success.

The court awarded the plaintiff the full $15,975 claimed, finding the Rule 49 offer valid and the defendant's conduct in raising unproven fraud allegations justified an enhanced costs award.

The plaintiffs brought a motion for leave to appeal the decision of Koehnen J. dated March 25, 2021.

The Divisional Court dismissed the motion for leave to appeal in writing.

Costs were awarded to the defendants, fixed at $5,000 for each of the two defendant groups, totaling $10,000.