Barbara Green

The defendant sought approximately $100,000 in costs on a full indemnity basis against the plaintiff and its lawyers following the dismissal of the action against it and the discharge of a certificate of pending litigation registered against property.

The court considered the principles governing costs under s.131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, including the high threshold for awarding elevated costs or personal costs against counsel.

The court held that although the defendant was successful, the plaintiff’s decision to include the defendant in the claim was reasonable given the timing of the mortgage transfers and allegations of misappropriation.

The plaintiff withdrew its claim promptly after receiving evidence establishing the legitimacy of the defendant’s mortgage interest.

Partial indemnity costs of $35,000 were awarded against the plaintiff, and the request for costs against the plaintiff’s lawyers was dismissed.

Following motions for security for costs brought by two defendants, the court addressed the costs of those motions.

The defendants had obtained security for costs orders but in amounts lower than requested.

The court considered the factors under s. 131 of the Courts of Justice Act and Rules 1.04, 56.01, and 57.01 of the Rules of Civil Procedure.

While the moving parties were largely successful, reductions were warranted due to incomplete success and procedural issues related to timing of a statement of defence.

The court declined to award substantial indemnity costs and instead fixed fair and reasonable partial indemnity costs payable by the plaintiff.

Defendants brought motions for security for costs under Rule 56.01(1)(a) of the Rules of Civil Procedure against a foreign corporate plaintiff resident in Russia with no assets in Ontario.

The court confirmed the two‑stage framework for security for costs motions and held the defendants met the initial burden because the plaintiff was ordinarily resident outside Ontario.

The plaintiff failed to demonstrate impecuniosity or other circumstances making a security order unjust, despite having substantial funds abroad.

The court exercised its discretion to order staged security for costs, including amounts related to pending motions to discharge a certificate of pending litigation.

The court also granted a sealing order over a document containing non‑party investors’ financial information and awarded partial indemnity costs to the plaintiff for the confidentiality motion.

The Bank of Montreal sought leave to appeal a decision certifying two related class actions arising from a Ponzi scheme perpetrated by a bank customer.

The Bank argued that the motions judge erred in finding that the pleadings disclosed causes of action in knowing assistance and negligence, relying on section 437 of the Bank Act and the Anns test for duty of care.

The Bank also challenged the finding that the claims raised common issues.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motions judge's conclusions that it was not plain and obvious the claims would fail and that there was some basis in fact for the common issues.

The plaintiff sought certification of a proposed class proceeding against a financial institution relating to losses arising from a fraudulent investment scheme involving a tooth whitening promotion.

Earlier reasons had found that the criteria under s. 5 of the Class Proceedings Act, 1992 were satisfied except for the requirement that the representative plaintiff adequately represent the class.

The court had concerns regarding the plaintiff’s health following a stroke and his ability to perform the role.

After further medical evidence was filed, including expert neurological evidence confirming no cognitive impairment, the court accepted that the plaintiff could adequately represent the class and that the litigation plan addressed communication with class members and management of damages.

The court concluded that the statutory criteria were met and certified the proceeding as a class action.

The plaintiff sought certification of a proposed class action arising from an alleged investment fraud involving monies deposited into bank accounts held at the defendant bank.

Earlier reasons had found the certification criteria satisfied except for the adequacy of the litigation plan under s. 5(1)(e)(ii) of the Class Proceedings Act, 1992.

After filing a revised litigation plan addressing communication with class members, management of damages, and procedural issues including a jury notice, the court determined the deficiencies had been remedied.

The court approved revised common issues and concluded the statutory requirements for certification were met.

The proceeding was certified as a class action and a representative plaintiff was appointed.

The plaintiff sought to certify a class action against the Bank of Montreal (BMO) arising from a $77 million Ponzi scheme perpetrated by Salim Damji.

The plaintiff alleged that BMO knowingly assisted in Damji's breach of trust, knowingly received fraudulent funds, and was negligent in its receipt of these funds.

The court granted leave to bring the certification motion and found that the plaintiff met the first four criteria for certification under s. 5(1) of the Class Proceedings Act.

However, the court found the representative plaintiff's health issues and deficiencies in the litigation plan rendered the final criterion unsatisfied.

The certification motion was adjourned for 30 days to allow the plaintiff to address these deficiencies.

The plaintiff sought to certify a class action against the Bank of Montreal arising from a $77 million investment fraud perpetrated by Salim Damji.

The plaintiff alleged that BMO knowingly assisted in Damji's breach of trust, knowingly received fraudulent funds, and was negligent in its receipt of these funds.

The court found that the plaintiff satisfied the criteria for certification under s. 5 of the Class Proceedings Act, except for the requirement of a workable litigation plan.

The court adjourned the certification motion to allow the plaintiff to provide an acceptable litigation plan.

The appellant property owners appealed the dismissal of their action against a former property manager for alleged misappropriation of flea market revenues, negligence, and breach of fiduciary duty.

The Court of Appeal upheld the trial judge's findings that the evidence of misappropriation amounted only to suspicion and that the manager owed no duty of care regarding the flea market's operation.

The Court also affirmed the trial judge's discretionary refusal to order disgorgement of profits from the manager's undisclosed outside business activities, noting the employer suffered no damages and the manager had performed his duties satisfactorily.

The appellants appealed a decision regarding their claims for water leak repairs under a statutory warranty.

The court previously dismissed the appeal but issued this supplementary endorsement to address remaining issues regarding the interpretation of settlement releases, a side letter, and estoppel.

The court held that the releases constituted the entire agreement and that the side letter did not bind the warranty program.

Furthermore, the appellants were estopped from relying on the side letter against the program because the program had reasonably relied on the releases to its detriment by relinquishing security.

The appeal on the remaining issues was dismissed with costs.

The appellant condominium corporations appealed a Licence Appeal Tribunal decision disallowing their warranty claims against the Ontario New Home Warranty Program.

The appellants argued that under s. 13(6) of the Ontario New Home Warranties Plan Act, statutory warranties continue in force despite any agreement to the contrary, rendering their previously executed releases with the builder unenforceable.

The Divisional Court distinguished prior case law, noting the releases were executed by sophisticated parties with legal advice to settle a known, properly filed warranty claim.

The Court held that the Act encourages settlements and does not bar parties from settling claims in exchange for a release.

The appeal was dismissed.