Anna Husa

The moving parties brought a motion for leave to appeal the decision of Rees J. dated December 18, 2024.

The Divisional Court allowed the motion for leave to appeal.

As no costs outline or bill of costs was provided, the court made no order as to costs.

The third parties, Steven Sheppard and SKS Law LLP, brought a motion to strike the defendant Lansdowne Office Inc.'s third party claim against them for disclosing no reasonable cause of action.

The third party claim sought contribution and indemnity under the Negligence Act, alleging that the third parties (the plaintiff's solicitors) provided negligent advice to the plaintiff regarding a commercial lease.

The court dismissed the motion, finding that the alleged negligent advice was not attributable to the plaintiff and therefore could ground a third party claim for contribution and indemnity.

The defendant brought a motion for an order requiring the plaintiff, a corporate entity, to post security for costs under Rule 56.01(1)(d), alleging insufficient assets in Ontario.

The court found that the plaintiff, a sole-purpose corporation that had sold its only asset, indeed had insufficient assets.

The plaintiff failed to meet the high evidentiary threshold for demonstrating impecuniosity, as it did not provide robust financial disclosure regarding its principal's personal assets or borrowing ability.

As impecuniosity was not established, the plaintiff was required to show a good chance of success at trial; however, the court found the merits to be neutral due to significant credibility issues and a potential limitations defence.

The court also dismissed the plaintiff's argument of delay in bringing the motion, finding no prejudice.

Consequently, the motion for security for costs was granted, with the plaintiff ordered to post security in several installments for past and future litigation steps, and to pay the defendant's costs of the motion.

Following the dismissal of the plaintiff's motion for summary judgment regarding a disputed legacy in her late father's will, the court determined the issue of costs.

The court rejected the plaintiff's argument that the traditional estate costs rules should apply, finding that the litigation was caused by the drafting solicitor's error, not the testator's actions.

Applying normal civil costs rules, the court ordered the plaintiff to bear her own costs due to her tactical conduct, ordered the drafting solicitor to bear his own costs because his error caused the litigation, and ordered the plaintiff to pay the partial indemnity costs of the estate and foundation.

The plaintiff sought summary judgment for an $800,000 legacy from her late father's secondary will, arguing for a literal interpretation or that a later clause should prevail.

The defendants argued a drafting error, contending the legacy was conditional on the plaintiff not receiving property under the primary will, which did not occur.

The court applied the "armchair rule" and the Lipson principles for correcting drafting errors, finding an obvious error in the will.

The court dismissed the plaintiff's motion for summary judgment and ordered the will to be amended to reflect the testator's true intention that the legacy was conditional on the property transfer not occurring.

The third parties brought a motion for leave to appeal the order of Jaye Hooper J. dated February 27, 2023.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $4,000 to the responding parties.

The appellants appealed a motion judge's decision that prevented them from discontinuing their action against certain defendants and granted summary judgment dismissing the action against those defendants.

The Court of Appeal found that the motion judge erred in interpreting the Rules of Civil Procedure regarding when pleadings are closed in a multi-defendant action, clarifying that pleadings are not closed until they are complete against all defendants.

However, the Court upheld the motion judge's alternative finding that the notice of discontinuance constituted an abuse of process and affirmed the grant of summary judgment, as well as the award of substantial indemnity costs, finding no genuine issue for trial and that the action was frivolous and vexatious.

The applicant, LawPRO, paid a joint and several costs award in full on behalf of its insured and sought contribution from the respondent co-debtors.

One respondent filed a proposal in bankruptcy and another was judgment-proof.

LawPRO sought an order that the remaining solvent respondent, Ida, pay an equal share of the insolvent respondents' shortfall.

The court held that LawPRO had standing to seek contribution and applied the equitable principle that solvent co-debtors must rateably share the shortfall of insolvent co-debtors.

Ida was ordered to pay a rateable share of the shortfall in addition to her apportioned share of the costs award.

The appellants, who own and manage the majority of units in a condominium operating as a retirement residence, appealed a summary judgment finding their conduct oppressive under s. 135 of the Condominium Act.

The motion judge found the appellants unfairly prejudiced the respondent minority unit owners by not requiring their own tenants to sign the standard services agreement, allowing the appellants to offer discounted services and gain an unfair marketing advantage.

The Court of Appeal upheld the oppression finding and the costs award, but varied the judgment to ensure it only applied prospectively so as not to affect the rights of current tenants who were not parties to the action.

The plaintiffs, individual unit owners in a retirement condominium, brought a motion for summary judgment claiming the defendants acted oppressively.

The defendants, who owned the majority of the units, managed the condominium, and provided services, were not requiring their own tenants to pay the mandatory service fees that the plaintiffs were required to pay under the condominium declaration and bylaws.

The court found that the defendants' conduct was unfairly prejudicial and unfairly disregarded the plaintiffs' interests, as it violated their reasonable expectation that all occupants would be treated equally.

The court ordered that the declaration and bylaws be enforced, requiring all occupants to enter into the same services agreement, but declined to award damages or alter the board's composition.

The plaintiff sought to introduce preliminary inquiry transcripts as evidence in support of a pending Mareva injunction motion.

The defendants opposed, arguing that a publication ban from the criminal proceedings prohibited their use and that the transcripts were inadmissible hearsay.

The court ruled that filing the transcripts would breach the publication ban, they were not "otherwise admissible by law" under the Ontario Evidence Act, and their evidentiary purpose in the preliminary inquiry differed from the Mareva injunction motion, leading to actual prejudice for the defendants.

Consequently, the plaintiff was not permitted to rely on the transcripts.

The respondent Picture Perfect Film Assets, LLC (PPFA) brought a motion to stay an application by the MacLaren Art Centre (MAC) concerning the ownership and sale of Rodin bronze sculptures.

PPFA argued for a stay based on forum non conveniens, issue estoppel, res judicata, abuse of process, and the 'good case management rule,' favouring a broader, earlier-filed Washington action.

MAC contended that its Ontario application, rooted in local bankruptcy proceedings and involving Ontario parties and law, was appropriate.

The court dismissed PPFA's motion, finding that Ontario was an appropriate forum and PPFA failed to demonstrate that Washington was 'clearly more appropriate' under the forum non conveniens analysis.

The court also declined to apply equitable doctrines or the good case management rule to stay the Ontario proceedings.

This endorsement determined the costs arising from a dismissed summary judgment motion brought by Liberty Development Corporation and several derivative motions.

The plaintiff, York Regional Standard Condominium Corporation No. 1206 (YRSCC No. 1206), was awarded $60,000 in partial indemnity costs for successfully resisting Liberty's summary judgment motion.

Conversely, Liberty Development Corporation was awarded a total of $34,261.12 in partial indemnity costs for various motions initiated by YRSCC No. 1206, including motions to stay, a pleading amendment motion, and an expert report motion.

The court dismissed YRSCC No. 1206's claim for restitution of previously awarded costs and found no basis for costs against or in favour of Darcon Inc. The decision applied the "costs follow the event" principle but declined to award substantial indemnity costs, noting that the parties' matching settlement offers regarding the withdrawal of motions effectively neutralized each other.

A case conference was held to address procedural issues following previous endorsements.

The court directed the parties to draft separate orders for six prior motions.

The court also scheduled a Rule 21 motion brought by the defendant Shapiro regarding the plaintiff's Fresh as Amended Statement of Claim, and scheduled the plaintiff's renewed motion for a Mareva injunction.

Finally, the court set a timetable for written submissions regarding the Atkinson defendants' request to pay outstanding costs orders from funds held in trust.

The Atkinson defendants brought a motion seeking approval to withdraw funds held in trust to pay legal fees and costs awards.

The plaintiff opposed, arguing that the funds were subject to a solicitor's undertaking given by the Atkinson defendants' counsel to hold them in trust pending the resolution of the dispute.

The court found that a clear and unambiguous undertaking existed, binding the funds to remain in trust until entitlement was determined by the court or by agreement between the parties.

Consequently, the Atkinson defendants' request to access the funds was denied.

The plaintiff condominium corporation brought an action for $75 million in damages for construction deficiencies against 53 defendants.

One defendant, Liberty Development Corporation, brought a motion for summary judgment to dismiss the claims against it, arguing it had no contractual or operational connection to the project.

The plaintiff brought a preliminary motion to admit an expert report, which was dismissed for failing to meet the Mohan criteria.

The court dismissed Liberty's motion for summary judgment, finding genuine issues requiring trial regarding Liberty's operational involvement, representations of its involvement, and its relationship with the construction manager.

The court also held that partial summary judgment was not advisable in the context of the litigation as a whole due to the risk of duplicative and inconsistent findings.

The plaintiff brought a motion seeking answers to questions refused or taken under advisement during the cross-examination of an affiant.

The affidavit was sworn in the context of a pending motion to determine whether certain funds were held in trust pursuant to an agreement.

The Case Management Judge found that while the questions might meet the semblance of relevance test, they fell outside the narrow scope of the upcoming trust funds motion.

To ensure proportionality and efficiency, the court declined to order the questions answered at this time, without prejudice to the plaintiff's right to renew the request after the disposition of the trust funds motion.

The defendants brought motions to dismiss the plaintiff trade union's action for lack of standing, to stay the action pending related criminal proceedings, and to strike the statement of claim.

The plaintiff union alleged the defendants misappropriated funds intended for the union's Retiree's Cancer Claim Fund.

The court found the plaintiff had standing as a trade union acting within its labour relations functions.

The court declined to stay the civil action, finding no extraordinary circumstances despite pending criminal charges against two defendants.

On the motions to strike, the court upheld most claims against the primary defendants but struck the claims against the defendant lawyer with leave to amend, finding insufficient material facts pleaded regarding his involvement.

The plaintiff condominium corporation sued 53 defendants for construction deficiencies.

One defendant, Liberty, brought a motion for summary judgment.

The plaintiff brought a cross-motion to stay or quash the summary judgment motion, arguing Liberty failed to make proper documentary production and improperly refused questions on cross-examination.

The court dismissed the plaintiff's cross-motion, finding no grounds to restrict Liberty's right to advance its summary judgment motion, but established a procedure for the plaintiff to bring a specific motion regarding the refused questions and documentary production prior to the hearing of the summary judgment motion.

This is a costs endorsement following a successful appeal by the City of Burlington against Burlington Airpark Inc. The parties agreed to fix the costs of the appeal at $40,000 inclusive of disbursements and taxes.

However, they disagreed on the costs of the underlying application.

The respondent Airpark sought partial indemnity costs of $149,917.90, while the application judge had awarded the successful City substantial indemnity costs of $118,327.53.

The Court of Appeal determined that while Airpark was entitled to costs of the application despite adverse findings, an award of partial indemnity costs 25% higher than the substantial indemnity costs incurred by the successful applicant was unreasonable.

The Court fixed Airpark's costs at $80,000 inclusive of disbursements and taxes.