Barbara Conway

This costs endorsement follows the dismissal of applications by Belokon, Entes, Sistem, and Stans (the "Applicants") to recognize and enforce arbitral awards against the Kyrgyz Republic (the "Republic"), and to declare an exigible ownership interest of the Republic in Centerra Gold Inc. shares held by Kyrgyzaltyn JSC.

The Republic and Kyrgyzaltyn (the "Respondents") sought costs.

The court awarded costs on a partial indemnity basis, rejecting claims for full or substantial indemnity.

It also determined that costs should be payable on a several, not joint and several, basis due to the unrelated nature of the Applicants and the court-directed common issue hearing.

The court limited the costs award to the common issue hearing, excluding prior jurisdiction motions or general recognition application costs, and considered previous compensation for materials.

The defendants, Lubrizol Advanced Materials Canada, Inc. and Lubrizol Advanced Materials, Inc. (LZAM), sought leave to appeal a decision dismissing their motion for partial summary judgment.

The original motion concerned IPEX's claim to recover settlement funds paid in class actions related to defective Kitec Pipe, alleging breach of contract and contribution/indemnity from LZAM for supplying defective resin.

The court dismissed LZAM's motion for leave to appeal, finding no conflicting decisions, no good reason to doubt the correctness of the motions judge's decision, and no issues of public importance.

The self-represented plaintiffs sought leave to appeal an order refusing their request to adjourn the trial.

The plaintiffs wanted an adjournment to challenge a settlement approved for a co-plaintiff under a disability.

The motion judge had denied the adjournment, finding no prejudice to the plaintiffs proceeding to trial while continuing to challenge the settlement.

The plaintiffs failed to attend the trial, resulting in the dismissal of their claim.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions, no good reason to doubt the correctness of the order, and no matters of public importance.

The moving party sought leave to appeal a motion judge's decision dismissing his motion for summary judgment and staying his counterclaim in favour of arbitration.

The underlying dispute involved a supplementary employee retirement plan and a forfeiture clause triggered by alleged competitive activity.

The Divisional Court denied leave to appeal, finding no conflicting decisions or reason to doubt the correctness of the motion judge's conclusion that the factual issues required a trial and were not amenable to summary judgment.

The applicants sought a declaration that the Kyrgyz Republic held an exigible ownership interest in shares of Centerra Gold Inc. registered in the name of its wholly-owned subsidiary, Kyrgyzaltyn JSC, to enforce arbitral awards.

The court dismissed the applications, finding that the Agreement on New Terms (ANT) unambiguously established Kyrgyzaltyn JSC as the beneficial owner of the shares, not the Republic.

The court rejected arguments based on contract interpretation under New York law and trust principles under Canadian law, emphasizing the separate legal personality of the subsidiary and the lack of evidence for an ownership interest or trust.

The plaintiff university brought an action against its former Assistant Vice-President and Director of Maintenance, alleging they orchestrated multiple fraudulent schemes, including false invoicing, kickbacks, and using university resources for personal residence improvements.

The court found the defendants liable for fraud and breach of fiduciary duty, ordering them to pay damages.

The court also voided the transfer of the primary defendant's properties to his family members as fraudulent conveyances and rescinded his severance agreement due to material non-disclosure of his fraudulent activities.

The plaintiff appealed a motion judge's refusal to approve a class action settlement regarding alleged copyright infringement by the defendant's online legal database.

Following Supreme Court of Canada decisions that significantly enhanced the defendant's fair dealing defence, the parties agreed to a settlement including a cy-près payment and a non-exclusive licence from class members.

The Divisional Court allowed the appeal and approved the settlement, finding the motion judge erred in characterizing the licence as a property right and in elevating the standard for settlement approval by introducing 'institutional fairness' as a new factor.

The applicant, the Attorney General of Canada, sought to set aside a NAFTA arbitral award that found Canada liable for breaching the prohibition on performance requirements under Article 1106.

Canada argued that the tribunal exceeded its jurisdiction by applying the wrong criteria to determine whether the impugned guidelines fell within Canada's reservation for subordinate measures under Article 1108.

The Superior Court of Justice dismissed the application, holding that the tribunal's interpretation of the NAFTA reservation provisions was a question of merits, not a true question of jurisdiction under Article 34(2)(a)(iii) of the Commercial Arbitration Code.

Following a trial where the applicant was successful on the remaining issues, the applicant sought costs of $75,000 on a substantial indemnity basis.

The court declined to award substantial indemnity costs because the value of the applicant's shares, and thus whether his offer to settle was beaten, could not be determined until an auction was held.

The court awarded partial indemnity costs, discounted to account for claims the applicant withdrew just before trial.

The respondent was ordered to pay $30,000 all-inclusive.

Following dismissal of the defendant bank’s summary judgment motion asserting a limitations defence, the plaintiffs sought partial indemnity costs of $635,000.

The action arises from a massive Ponzi scheme involving certificates of deposit issued by an offshore bank, with the plaintiffs acting as joint liquidators pursuing damages of USD $5.5 billion against the defendant bank as correspondent banker.

The court held that although the plaintiffs were successful in resisting the motion, their claimed costs were excessive and far outside the reasonable expectations of the unsuccessful party for a two‑day summary judgment motion.

Considering the factors under Rule 57.01(1), the court fixed a fair and reasonable costs award of $120,000 all‑inclusive on a partial indemnity basis.

The award was made without prejudice to the plaintiffs’ ability to seek additional costs related to the motion at trial where the limitations issue remains live.

The plaintiffs sued a discount broker, Interactive Brokers Canada Inc., in negligence after a trader they authorized to manage their corporate account lost over $1.8 million.

The plaintiffs alleged the broker breached its 'know your client' and 'gatekeeper' obligations by failing to investigate 'red flags' regarding the trader's status as an unregistered investment advisor.

The court dismissed the action, finding the broker complied with all regulatory requirements for opening a corporate account and was entitled to rely on the corporate resolution granting the trader authority.

The court also noted that even if liability were found, the plaintiffs failed to mitigate their damages after discovering the initial losses.

The defendant bank brought a summary judgment motion seeking dismissal of a $5.5 billion negligence and knowing assistance claim arising from an international Ponzi scheme, arguing the action was barred by the two‑year limitation period under the Limitations Act, 2002.

The claim was brought by joint liquidators of an offshore bank alleging the defendant bank failed to exercise appropriate due diligence and facilitated the scheme by continuing correspondent banking services.

The court held that the discoverability of the claim before the critical limitation date involved complex factual inquiries regarding what the liquidators’ predecessors knew or ought to have known about the bank’s role in the fraud.

Given the extensive evidence, overlapping merits issues, and disputed factual questions about knowledge and investigation during the liquidation process, the court found a genuine issue requiring a trial.

Summary judgment was therefore inappropriate.

The applicants, anchor tenants in three shopping malls, sought to assign and sublease their leases to a joint venture limited partnership.

The respondent landlords refused consent.

The court held that consent was not required because the leases were being assigned to the general partner, which was an affiliate of the existing tenant, thus falling under the leases' Affiliate Exception.

Alternatively, the court found that the landlords unreasonably withheld consent for two of the leases, as the tenant would remain liable and continue operating the stores, but the landlord was entitled to arbitrarily withhold consent for the third lease based on its specific terms.

In a receivership motion concerning accounts receivable insurance, the moving party sought a declaration that no outstanding disputes remained under the policy so as to trigger payment by the insurer.

The court held that the policy’s Dispute Clause was broadly worded and suspended payment where any legitimate dispute between the insured and the buyer called into question the amount owing, including set-off claims arising from unrelated shipments.

The court rejected the argument that the clause was shipment-specific and found that the policy contemplated an ongoing buyer relationship in which unresolved unrelated complaints could affect the calculation of loss.

The motion was dismissed and costs were fixed in favour of the responding party.

The plaintiffs sought repayment of a $1 million non-refundable amount paid under a mining share and debt purchase and lock-up agreement after they failed to complete a proposed takeover bid.

They alleged breach of contract arising from the defendants’ handling of a third-party financing proposal, non-delivery of share certificates, and exercise of a repurchase option, and argued the option was an unenforceable penalty or should be relieved against in equity.

The court held there was no contractual obligation to shut down the third-party transaction, no fundamental breach in relation to share certificates or the $1.00 repurchase payment, and no damages were proven on those allegations.

Applying the relief from forfeiture jurisprudence, the court found the clause was a forfeiture provision, not penal, and in any event not unconscionable in a heavily negotiated agreement between sophisticated parties.

The action was dismissed.

The plaintiff sought leave to appeal a motion judge's decision disqualifying its counsel of record due to an alleged conflict of interest.

The motion judge had disqualified the firm because it had previously represented a former employee of the defendants and obtained confidential information, despite acknowledging the defendants were not clients of the firm.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's order since the defendants had not disclosed the information to the firm and were not clients, raising serious debate about the basis for disqualification.

Consumers brought proposed class proceedings against wireless service providers alleging that the companies billed cellular calls by rounding up partial minutes to the next full minute without adequate disclosure.

The plaintiffs advanced claims in breach of contract, breach of the Consumer Protection Act, 2002, and unjust enrichment, seeking certification of national and provincial classes.

The court held that the pleadings disclosed viable causes of action and that there was some basis in fact for common issues regarding the interpretation of standardized contracts, alleged misrepresentations about available minutes, and the uniform rounding‑up practice.

The court also held that class proceedings were the preferable procedure given the large class size and relatively small individual claims.

The actions were certified as class proceedings with defined classes and common issues.

Multiple tobacco manufacturer defendants sought partial indemnity costs of approximately $300,000 after withdrawing previously scheduled motions to strike the Crown’s statement of claim in a health care cost recovery action under the Tobacco Damages and Health Care Costs Recovery Act.

The defendants argued they were the successful parties because their motions prompted extensive amendments to the pleading and that the Crown delayed notifying them of its intention to amend.

The court held that the amendments addressed only some of the alleged deficiencies and that significant legal issues remained unresolved when the defendants chose to withdraw the motions.

As a result, success on the motions was considered divided.

Exercising discretion under s. 131 of the Courts of Justice Act, the court ordered that each side bear its own costs.

Following the court’s earlier decision declining to certify a proposed class proceeding, the parties addressed the issue of costs for the certification motion.

The plaintiffs had received funding from the Law Foundation of Ontario, which indemnified them against adverse cost awards.

The parties and the Law Foundation agreed that the costs of the certification motion would be payable to the defendant.

The court issued an endorsement reflecting the parties’ consent that costs be paid to the defendant in the amount of $50,000 inclusive of taxes and disbursements.

In a health care cost recovery action brought by the Crown against tobacco companies under the Tobacco Damages and Health Care Costs Recovery Act, 2009, a defendant moved to strike portions of the statement of claim referencing alleged misrepresentations made by tobacco companies before parliamentary committees.

The court considered whether statements made to House of Commons and legislative committees could be relied upon in a civil action.

It held that parliamentary privilege, specifically freedom of speech, protects statements made during parliamentary proceedings and committee appearances, including by non‑members who participate as witnesses.

Because the privilege is absolute and prevents courts from questioning such statements, the impugned pleadings referencing those presentations could not stand.

The motion to strike those paragraphs was therefore granted.