Arkadi Bouchelev

Costs endorsement following the dismissal of an emergency application.

The applicant in the underlying proceeding had sought to enjoin the respondent city from exercising rights under an easement agreement, which had been confirmed by both the Superior Court and the Court of Appeal.

The court found the application constituted a collateral attack, an abuse of process, and was brought on unreasonably short notice with voluminous materials.

The city sought substantial indemnity costs of $25,150.41, which the court awarded in full, finding the amount proportionate given the unreasonable and ill-advised nature of the proceeding.

The defendants brought a motion to strike out the third party claim as disclosing no cause of action.

The third party claim named 27 different third parties, including individual shareholders and their spouses, corporate entities, the plaintiffs' bank, and the plaintiffs' lawyers.

The court found that the third party claim was based on bald allegations without material facts and failed to meet the minimal pleading standards.

The court struck the third party claim in its entirety with leave to amend and awarded costs to the third parties on a partial indemnity scale.

The Respondents (Ebrahimi Parties) brought a motion under Rule 59.06 to set aside or vary three prior court orders related to the implementation of Minutes of Settlement, alleging fraud and newly discovered facts.

They also sought a declaration that the Minutes of Settlement were void.

The Applicants (PCCI) brought a cross-motion to enforce the Minutes of Settlement.

The court granted leave to admit new evidence (February 2024 Memo) and found that PCCI's actions in pursuing criminal charges and restitution in Iran, contrary to their obligations under the Minutes of Settlement, constituted a fundamental breach.

Consequently, the court set aside the relevant implementation orders and declared the Minutes of Settlement null and void, dismissing PCCI's enforcement motion.

The court also addressed costs, awarding partial indemnity costs to the Respondents.

In a family law proceeding, the applicant wife brought a motion seeking extensive financial disclosure from third-party corporate respondents, alleging her husband had an undisclosed ownership interest in them and used them to fund their lifestyle.

The corporate respondents argued they were not bound by a prior disclosure order and that the husband was merely an employee or bare trustee.

The court found the corporate respondents were not in breach of the prior order, as it only applied to the husband.

However, the court ordered the corporate respondents to produce the requested financial and corporate records, finding them highly relevant and necessary to determine the husband's true income and potential ownership interests, subject to the wife signing a Non-Disclosure Agreement.

The appellant property owner appealed a judgment granting the City's application to enforce a Heritage Easement Agreement.

The appellant had made unauthorized alterations to his property, including cutting down trees and building a hockey rink and cabana.

The application judge found the appellant breached the Agreement and granted a permanent injunction.

On appeal, the appellant argued the application judge misinterpreted the Agreement and that the City's enforcement was motivated by bad faith.

The Court of Appeal dismissed the appeal, finding no palpable or overriding error in the application judge's decision and concluding that the City had exercised its contractual discretion in good faith.

The court considered interim costs submissions following the first stage of a bifurcated trial, which had dismissed the plaintiff's claims for declaratory relief.

The plaintiff argued that a costs award at this stage was premature, citing precedents that costs are typically awarded at the conclusion of the second stage of bifurcated proceedings.

The court agreed with the plaintiff, finding that a full appreciation of overall success and all relevant Rule 57 considerations, including Rule 49 offers, could only be made after the entire trial.

Consequently, the determination of costs was deferred to the completion of the proceedings.

The applicant sought an interest in two properties based on constructive or resulting trust, an equalization of net family property, and spousal support.

The court found the applicant lacked credibility, had unclean hands, and failed to prove any contributions to the properties.

The court determined the date of separation was in April 2013, making the equalization claim time-barred under the Family Law Act.

The spousal support claim was also dismissed.

Despite the respondents' success, no costs were awarded because they had knowingly breached prior court orders regarding the properties.

The parties brought cross-motions concerning discovery issues, including compelling answers to undertakings, under advisements, and refusals, access to accounting software, and setting a timetable for subsequent steps.

The court ordered various questions to be answered and documents produced, emphasizing relevance and proportionality under the Rules of Civil Procedure.

Access to the defendant's accounting software was granted to the plaintiff.

The court also set a timetable for further discovery and expert reports, reserving costs to the trial judge due to divided success.

The respondents sought damages arising from an interim injunction obtained by the applicant, alleging it was an excessive overreach and caused them financial harm by preventing a property sale.

The court found that proper notice was provided for the initial injunction hearing, and it did not proceed on an *ex parte* basis.

While some facts were not disclosed by the applicant, the court determined these omissions were not material to the necessity of the injunction, which was granted to maintain the status quo and protect the public interest in remediating provincially significant wetlands.

The respondents had also consented to the injunction's continuance after the initial period.

As the respondents eventually remediated the property, the merits of the underlying application for a permanent injunction were never judicially determined.

The court dismissed the respondents' motion for damages, exercising its discretion due to the respondents' inequitable conduct and the applicant's role as a public body acting in the public interest.

The plaintiff property owner sought declarations that her building was originally constructed as two semi-detached units or, alternatively, that she was entitled to four residential units based on a legal non-conforming use.

The municipality had placed a stop-work order on her renovations.

Relying on expert architectural and engineering evidence, the court found the building was originally constructed in 1906 as a single-family dwelling with internal access between areas.

The court also found no evidence that the building ever contained four residential units prior to the 1977 zoning by-laws.

The requested declarations were dismissed.

This endorsement addresses ongoing disagreements between counsel, leading to a civil case conference.

The parties agreed to orders for the respondents to produce a realtor's complete file and for cross-examinations to proceed with documents marked as exhibits pending privilege determination.

The court admonished counsel for their uncivil and uncooperative conduct, emphasizing that civil case conferences are not for resolving civility issues and that counsel have a strict obligation to act reasonably and collaboratively.

The court ordered that no further motions or civil case conferences could be brought without leave.

The moving parties (respondents in the main action) sought to enforce a settlement agreement or have it declared void ab initio, arguing the responding parties (applicants in the main action) failed to fulfill their obligation to withdraw criminal proceedings in Iran and remove Interpol Red Notices.

The court interpreted the agreement using the principles from Sattva, finding the responding parties only agreed to request the withdrawal and cooperate, as they lacked the authority to compel the independent Iranian Prosecutor or Interpol.

The court rejected expert evidence claiming the responding parties were Iranian government-controlled entities capable of commanding such actions.

The motion was dismissed, and the responding parties were awarded costs on a partial indemnity basis.

The plaintiffs sued their accounting firm and its principals for fraud, breach of contract, and misappropriation of funds after discovering that corporate taxes and payroll deductions had never been remitted to the CRA.

The court found the accounting firm and the son who misappropriated the funds liable for damages.

However, the court dismissed the claims against the father, finding he was not willfully blind and the firm was not his alter ego.

The court also rejected the defendants' argument that the claim was statute-barred under the Limitations Act, 2002.

This appeal concerned a failed residential real estate transaction where the appellant refused to close, alleging an undisclosed basement defect.

The motion judge granted summary judgment to the respondents (sellers), finding the defect was readily apparent and applying the principle of *caveat emptor*.

The Court of Appeal dismissed the appeal, upholding the motion judge's decision, finding no material error in the analysis, despite acknowledging a minor error in relying on hearsay evidence.

The court emphasized the appellant's delay in raising the issue and his financial difficulties as factors supporting the motion judge's findings.

The applicants sought declaratory orders after the conservation authority cancelled a permit for their home renovation project.

The respondent brought a motion arguing the application was premature or should be transferred to the Divisional Court as a judicial review.

The Superior Court found that the application fundamentally challenged the exercise of a statutory power of decision under the Conservation Authorities Act.

Concluding that the matter was properly a judicial review and not satisfying the urgency requirement for Superior Court jurisdiction, the court ordered the application transferred to the Divisional Court.

The plaintiff, Quality Truck Bodyshop Inc., sought summary judgment against Acear Inc. and Scottish & York Insurance Co. Limited for over $300,000 in towing, tear down, and storage fees for a stolen and recovered commercial truck.

The defendants opposed, arguing that granting partial summary judgment would lead to increased costs, delays, and potential inconsistent findings, citing the three-part test from Malik v. Attia.

The court dismissed the motion for summary judgment, agreeing that it was not appropriate given the related ongoing actions and the risk of duplication or inconsistent findings.

The plaintiffs brought a motion for summary judgment after the defendant failed to close a real estate transaction.

The defendant argued he was justified in not closing because he discovered a concealed latent defect in the basement floor, which he alleged was evidence of a major flood and structural damage.

The court rejected the defendant's evidence as lacking credibility, finding that the defect was patent, visible during the initial inspection, and that the rule of caveat emptor applied.

Summary judgment was granted to the plaintiffs for damages resulting from the aborted sale.

Minto Commercial Properties Inc. sued Le Gourmand 3 Inc., Le Gourmand Inc., and Milton Nunes for breach of lease and arrears of rent after Le Gourmand 3 Inc.'s restaurant failed.

The defendants counterclaimed for damages, alleging Minto fundamentally breached the lease by failing to provide adequate heating and air conditioning.

The court found Minto in fundamental breach of its lease obligations regarding HVAC, which materially caused the restaurant's failure.

Minto's claim was dismissed, and the defendants' counterclaim for damages related to the LG3 location's outfitting costs, security deposit, and repair expenses was granted, totaling $446,690.87 plus interest.

Claims for losses related to the other two Le Gourmand locations were dismissed as too remote.

The defendant moved under Rule 59.06(2)(a) to set aside a summary judgment previously granted in favour of the plaintiffs after an aborted real estate transaction.

The defendant, who was self-represented at the time, had failed to attend the original summary judgment motion due to injuries from a fall and a motor vehicle accident, but his request for an adjournment had been denied.

Applying the test from Tsaoussis v. Baetz, the court found that the new medical evidence explaining his absence could not have been put forward with reasonable diligence at the time, and that an adjournment would have been granted had the court been aware of the injuries.

The motion to set aside the judgment was granted.

The defendant brought a motion under Rule 37.14(1)(b) of the Rules of Civil Procedure to set aside a summary judgment order, arguing he was unable to attend the hearing for health reasons.

The court dismissed the motion, finding that Rule 37.14(1)(b) does not apply where a party requests an adjournment that is denied, but rather only when a party fails to appear.

The dismissal was without prejudice to the defendant's right to bring a motion under Rule 59.06(2)(a) based on fresh evidence before the original motion judge.