Barry L. Yellin

The moving party defendants in a multi-defendant civil action brought a motion for dismissal of the action against them without costs.

The plaintiff municipality had settled the action with the moving parties.

Having regard to the consents filed, the unopposed defendants, and the defendants who had not responded despite being duly served, the court granted the motion and issued an order in accordance with the draft order filed.

This costs decision follows an application under the Partition Act for the sale of two jointly owned properties.

The applicant, Tara-Lee Daniel, sought and was granted an order for the sale of the properties, with the only contested issue at the hearing being the terms of sale for a cottage property.

The court awarded Daniel full indemnity costs and awarded the intervening neighbours partial costs, finding the respondents' opposition to be without merit and their conduct to have unnecessarily increased costs.

The court considered an application by Tara-Lee Daniel for the partition and sale of two properties co-owned with Michael Angelo Rizzo, following the end of their relationship.

The main issue was whether the sale order for the Trent Lakes property should require any purchaser to cooperate in granting a right-of-way to neighbouring properties, as set out in a prior agreement (Schedule "C").

The court found that including this term was fair and necessary to avoid uncertainty and facilitate the sale, and granted the order for sale with the requested provision.

The defendant, Michelangelo Rizzo, moved to stay a Toronto action as an abuse of process due to a partial settlement agreement between the plaintiffs and co-defendant Tara Daniel that was disclosed to him but not to the court.

The plaintiffs sought a right of way over property owned by Rizzo and Daniel, or damages in lieu.

The court found that the procedural agreement did not sufficiently change the litigation alignment to justify a stay, but the plaintiffs' failure to disclose the agreement to the court warranted a costs sanction.

The motion for a stay was dismissed, but costs were awarded to Rizzo.

The appellant, Bishop Girgis, appealed a lower court decision that interpreted and rectified a will to distribute proceeds from a property sale to the estate of the deceased's brother, rather than to the residuary beneficiary (Bishop Girgis).

The Court of Appeal dismissed the appeal, upholding the rectification on the basis that it gave effect to the testator's plain intention, despite disagreeing with the application judge's specific analytical path.

Costs were awarded against the appellant.

This appeal concerned the enforceability of a restrictive covenant in the context of a dentistry practice sale.

The appellants, Dr. Cooke, 6326471 Canada Inc., and Dr. B. Zaricniak Dentistry Professional Corporation, challenged a five-year, 15 km non-competition covenant after Dr. Cooke terminated his association and began working at a nearby practice.

They argued the trial judge erred in applying the burden of proof and in finding the covenant's duration and geographic scope reasonable.

The Court of Appeal dismissed the appeal, affirming that restrictive covenants in commercial contexts are presumed valid and attract less scrutiny than in employment, and upheld the trial judge's assessment of the covenant's reasonableness.

Following a summary trial where the plaintiffs were awarded $50,000 for a fraudulent misrepresentation regarding home renovations, the plaintiffs sought costs on a substantial indemnity basis.

The defendant argued that substantial indemnity costs should only apply after the date of the plaintiffs' Rule 49 offer to settle.

The court found that the defendant's conduct amounted to a reprehensible form of fraud, justifying an award of substantial indemnity costs for the entire proceeding.

The defendant was ordered to pay costs fixed at $28,282.94.

The plaintiffs, Renee and Peter Wilson, sued the defendant, Ryan David Hill (d.b.a.

Crown Hill Builders), for the return of a $50,000 cash deposit paid for home renovations that were never performed.

The defendant denied receiving the money.

The case hinged on credibility.

The court found the plaintiffs' evidence, corroborated by text messages, bank records, a police report, and their son's testimony, to be credible.

The defendant's evidence was deemed not credible, and an adverse inference was drawn from his failure to produce documents.

The court concluded that the defendant engaged in fraudulent misrepresentation, taking the deposit with no intention of performing the work, and then disappearing.

Judgment was granted in favour of the plaintiffs for the principal amount of $50,000 plus pre-judgment interest, with costs to be determined.

Following a successful motion by the defendant Nelson to permanently stay the action and crossclaim against him, the parties could not agree on costs.

Nelson sought costs for both the stay motion and a moot summary judgment motion brought by the co-defendant Halton.

The court declined to award costs for the moot summary judgment motion.

However, the court awarded Nelson his costs for the successful stay motion on a partial indemnity basis, rejecting Halton's argument that Nelson's criminal conduct should preclude a costs award.

Halton was ordered to pay Nelson $19,000 in costs.

The defendant Tad Nelson moved to permanently stay the action against him due to the plaintiff and co-defendant Regional Municipality of Halton's failure to immediately disclose a settlement agreement.

This agreement included an assignment of the plaintiff's claim against Nelson to Halton.

The court found that the settlement significantly altered the litigation landscape and the adversarial relationship between the parties, requiring immediate and full disclosure.

The delayed and partial disclosure constituted an abuse of process.

The court rejected arguments of no prejudice and delay in bringing the motion.

The action and Halton's crossclaim against Nelson were permanently stayed.

This appeal concerned the procedural fairness requirements when a court, on its own motion, strikes the pleadings of a self-represented Indigenous party for alleged contempt and abuse of process.

The motion judge had found the appellant, an alleged protest leader, in defiance of court orders, struck his pleadings, and granted a permanent injunction with significant costs.

The Court of Appeal found that the motion judge erred by conflating contempt and abuse of process, failing to provide the appellant with adequate procedural safeguards, and denying him a fair opportunity to be heard, especially given his self-represented and Indigenous status.

The appeal was allowed, the orders striking pleadings and granting the permanent injunction were set aside, and the costs award was also set aside.

The Court of Appeal for Ontario heard motions for leave to intervene from three public interest organizations (1492 Windsor Law Coalition, Aboriginal Legal Services, and Canadian Civil Liberties Association) in an appeal concerning the striking of an Indigenous appellant's pleadings and a substantial costs award in an injunction proceeding related to a land dispute.

The motions judge had found the appellant in contempt of court.

The Court dismissed all motions for intervention, finding that 1492 WLC and ALS's submissions inappropriately expanded the legal issues on appeal by focusing on injunctions, and CCLA's submissions largely overlapped with the appellant's arguments.

The court concluded that the appellant could adequately address the Indigenous perspective.

No costs were awarded against the proposed interveners.

The Regional Municipality of Halton sought default judgment against Tad Nelson, who had been noted in default.

Nelson subsequently retained counsel and sought to set aside the noting in default.

The court convened a case conference to schedule both motions.

The judge decided that both motions should be heard orally and together by a judge, rather than Nelson's motion to set aside default being heard by a Master first.

The decision emphasized efficiency, affordability, and proportionality over tactical considerations regarding appeal routes.

The defendant brought a motion to transfer the action from Hamilton to Toronto pursuant to Rule 13.1.02 of the Rules of Civil Procedure.

The plaintiff opposed the motion.

Noting that a summary judgment motion was already scheduled to be heard in Hamilton on consent, the court found the transfer motion premature.

The motion was dismissed without prejudice to renew it following the determination of the pending summary judgment motion.

This is a costs endorsement following an appeal from orders of the Superior Court of Justice dated June 26, 2017 and March 6, 2018.

The appellants were unsuccessful in their appeal.

The Court of Appeal awarded costs to the appellants on a partial indemnity scale in the amount of $25,000 inclusive of disbursements and HST.

The appellants appealed a contempt sentencing order from the Superior Court.

The respondent had brought an action claiming monies advanced to the appellants were not properly disbursed and that the appellants lacked a proper accounting system.

An interim order required the appellants to account for monies received, disclose documents to an appointed accounting firm, and pay unpaid accounts.

The appellants were found in contempt for failing to comply with the accounting and disclosure requirements.

On appeal, the appellants did not contest the contempt finding but challenged the sentencing as based on an erroneous finding that they had not purged their contempt and as disproportionate.

The Court of Appeal allowed the appeal in part, finding the motion judge erred in refusing to admit fresh evidence regarding purge of contempt, and that the sentence was disproportionate.

The plaintiff moved for an interlocutory injunction to prevent the defendants from blocking access to a laneway on lands owned by the plaintiff.

The defendants cross-moved for an injunction preventing the plaintiff from using the lands, claiming they had acquired title by adverse possession.

The court found the defendants failed to establish a strong prima facie case of adverse possession, as they could not show the true owner was excluded for the requisite 10-year period prior to the lands being converted to Land Titles.

The court granted the plaintiff's motion, ordering the defendants to remove gravel blocking the laneway, and dismissed the defendants' cross-motion.

The appellant, a distributor of the respondent's product, appealed a summary judgment awarding the respondent payment for goods sold and delivered in the amount of $47,301.92 USD plus interest and costs.

The appellant raised defences of waiver and failure to mitigate, claiming the respondent had allegedly agreed to take back unrelated product ordered years prior.

The Court of Appeal found no factual foundation for either defence and upheld the summary judgment.

The court also rejected the appellant's challenge to the costs award on a substantial indemnity basis, finding the offer to settle complied with applicable rules.

Bone Safety Signs, LLC (Bone) brought a motion for summary judgment against Work Zone Safety Products Inc. (Work Zone) for unpaid invoices totaling $47,301.92 USD for temporary traffic control products.

Work Zone attempted to rely on a credit note issued by Bone, claiming defenses of estoppel, promissory estoppel, and equitable set-off, and alleging product defects and a duty to mitigate damages.

The court found that Work Zone did not act in accordance with the agreed-upon terms of the credit note, having unilaterally attempted to return goods "collect" and claim additional costs.

The court dismissed Work Zone's defenses, finding no genuine issue for trial regarding the unpaid invoices.

The court also found Work Zone's counterclaim for breach of contract and losses due to product defects to be weak, lacking corroborative evidence and inconsistent with prior statements.

Summary judgment was granted in favor of Bone for the unpaid amount plus interest, and costs were fixed at $19,192, with an order for the return of security for costs to Bone.

Applejack Developments Inc. sought summary judgment against 2294894 Ontario Inc. for $500,000 based on a promissory note and amending agreements.

The defendant 2294894 Ontario Inc. argued lack of consideration, as funds were paid to a joint venture partner (2305992 Ontario Inc.), and that the claim was statute-barred under the Limitations Act.

The court found that the defendant failed to rebut the presumption of consideration, noting that payment to a joint venture partner constituted consideration.

The court also dismissed the limitation period argument, finding that the due date for the promissory note was automatically extended, making the action timely.

Summary judgment was granted to the plaintiff.