Barry L. Yellin

Following a trial judgment where the plaintiff was awarded $76,275 in a breach of contract action originally claiming $250,000, the court determined the quantum of costs.

The plaintiff sought approximately $78,000, while the defendant argued for a 50% reduction based on the judgment falling within the simplified rules limit.

The court rejected both the plaintiff's claim for substantial indemnity and the defendant's request for a 50% reduction, but factored the late abandonment of the consequential damages claim into the award.

Costs were fixed at $55,000 all-inclusive.

The plaintiff purchased an edge banding machine from the defendant for its cabinetry business.

The machine failed to perform its more sophisticated functions, such as rounding, which the court found to be a breach of implicit terms of the contract.

However, because the plaintiff had accepted the goods under the Sale of Goods Act, the breach of condition was treated as a breach of warranty.

The court found the plaintiff failed to fully mitigate its damages by not taking reasonable steps to sell the machine.

Damages were awarded to the plaintiff for 50% of the contract price plus HST, totaling $76,275.

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.

Following a summary judgment in favour of the plaintiff, the parties made supplementary submissions on costs.

The plaintiff sought substantial indemnity costs from the date of its offer to settle under Rule 49.10.

The defendant argued the offer did not comply with the rule because it was made in US dollars, contrary to section 121 of the Courts of Justice Act.

The court rejected this technical argument, finding the offer was a genuine compromise.

The court awarded the plaintiff costs of $21,288.71, including substantial indemnity costs from the date of the offer.

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.

This appeal concerns a boundary dispute between two cottage owners on Lake Erie.

The respondents constructed a road and steps on what they believed was their property to improve access to the lakeshore, permitting the appellant and other neighbours to use these improvements.

Upon discovering that much of the work had been performed on the appellant's adjacent lot, the appellant sued for trespass damages.

The respondents counterclaimed for title by adverse possession.

The trial judge dismissed the appellant's trespass claim and granted the respondents title to approximately 3,400 square feet by adverse possession.

The Court of Appeal allowed the appeal, finding that the trial judge erred in law by granting the adverse possession claim without making an explicit finding that the respondents had effectively excluded the appellant from possession.

The evidence demonstrated the opposite—the respondents had permitted the appellant and others to use the road and steps freely.

The respondent stored food processing equipment owned by the appellant and claimed a storage lien under the Repair and Storage Liens Act.

The respondent retained the equipment in breach of his obligation to sell it after receiving a letter from the appellant dated May 30, 2012.

The trial judge ordered the respondent to pay damages of $129,500 USD but reduced this by crediting $27,900 for storage fees at $900 per month for 31 months.

On appeal, the appellant challenged whether credit should have been given and the amount thereof.

The Court of Appeal dismissed the appeal, upholding the trial judge's decision to grant the credit and the calculation of the storage fees.

The plaintiffs, a married couple, sued their insurer for the balance of a contents claim after their house was destroyed by fire.

The insurer appealed an interlocutory order that permitted the plaintiffs to attend each other's examinations for discovery.

The Divisional Court allowed the appeal, finding that the motion judge erred in applying a strict test from a Court of Appeal decision dealing with the exclusion of witnesses at trial.

The Court held that for discoveries, the onus is on the party seeking exclusion to demonstrate it is necessary to meet the ends of justice.

Given that the plaintiffs had identical interests, shared counsel, and their credibility was the central issue, there was a risk of tailoring evidence.

The Court ordered the plaintiffs to be examined individually.

The plaintiff, True North Vantage Inc., brought a motion seeking relief from the deemed undertaking rule to disclose evidence gathered during discoveries to the Hamilton Police Service, alleging that the defendant Steven Zhen Pang committed perjury.

The defendants resisted the motion, arguing issue estoppel or abuse of process, as a privy of the plaintiff had previously sought and been denied the same relief.

The court dismissed the motion on the grounds of issue estoppel, finding that the issue had been finally decided in prior proceedings involving the plaintiff's affiliate, Orbixa, and that the plaintiff was attempting to re-litigate the matter.

The court also found the motion constituted an abuse of process, noting it appeared to be a collateral attack on previous decisions and an attempt to gain leverage.

Following a prior decision granting summary judgment to the plaintiffs in the amount of $95,576.53 with prejudgment interest and no stay of execution, the court addressed the issue of costs.

The plaintiffs sought costs of approximately $38,000 inclusive of disbursements and HST, arguing entitlement to elevated costs under Rule 49 due to settlement offers.

The court found Rule 49.10 inapplicable because no settlement offers remained open for acceptance at the time of the summary judgment motion.

Applying the general presumption that a successful party is entitled to costs, the court held the plaintiffs were entitled to partial indemnity costs.

After considering overlap between work on the claim and counterclaim, the court fixed costs at $31,000 inclusive of disbursements plus HST.

Following dismissal of a negligence action for delay under Rule 48.14 of the Rules of Civil Procedure, the court addressed costs of the action.

The defendants sought costs, with some requesting substantial indemnity and the municipality requesting partial indemnity.

The court held that substantial indemnity was not justified in the absence of a Rule 49 offer or conduct warranting punitive costs.

Applying s. 131(1) of the Courts of Justice Act and Rule 57.01, the court awarded costs to the defendants on a partial indemnity basis, reducing the municipality’s claim due to disproportionate time spent compared with other parties.

The plaintiffs brought a motion for summary judgment against the defendant for $95,576.53 based on a personal indemnity agreement executed during the sale of a cosmetic clinic.

The defendant argued the indemnity was unenforceable because the underlying equipment leases were never formally assigned.

The court found the defendant waived the assignment requirement by completing the transaction and using the equipment for two years.

Summary judgment was granted, and the defendant's request for a stay pending her counterclaims was denied.

The defendants, representing 80% of the shareholders in a family business, brought a motion under section 248 of the Business Corporations Act seeking a compulsory buy-sell order to force the plaintiff, a 20% shareholder and widow of a deceased founder, to sell her shares.

The defendants argued that a deadlock existed because they did not want to share profits with a non-contributing shareholder.

The court dismissed the motion, finding that the defendants' desire to avoid sharing profits equally with the plaintiff did not constitute oppressive conduct under the Act.

The plaintiff's cross-motion for a forensic accounting was also dismissed.

The appellant was successful on appeal and cross-appeal and sought partial indemnity costs of approximately $30,000.

The Divisional Court found the claimed hours and rates disproportionately high and fixed the costs of the appeal at $17,500 all inclusive.

The court declined to exercise its jurisdiction to award costs of the trial, leaving that determination to the trial judge or an assessment officer due to a prior reservation of jurisdiction and a dispute over an agreement between counsel.

The plaintiffs sought certification of a proposed class action arising from explosions at a propane facility in Toronto that allegedly caused personal injury, property damage, and evacuation of nearby residents.

The court considered the certification requirements under s. 5 of the Class Proceedings Act, 1992.

It held that the pleadings against certain landlord defendants failed to disclose a viable cause of action because the allegations relying on agency, single‑group enterprise, and alter‑ego theories lacked material facts capable of piercing the corporate veil.

Those pleadings were struck with leave to amend and the certification motion against those defendants was adjourned.

The proceeding was otherwise certified as a class action against the remaining defendants, with common issues approved and representative plaintiffs appointed.

Following dismissal of a motion seeking injunctive relief for alleged passing off, the successful defendants sought costs.

The court considered written submissions on scale and quantum.

Given that the plaintiff had expanded the issues leading to additional cross-examinations and motion materials before narrowing the argument at the last minute, the court found substantial indemnity costs were appropriate.

However, the amount claimed was found excessive due to duplication of effort and lack of detailed particulars.

Costs were fixed at $12,500 all-inclusive.

The plaintiff insurance brokerage sued a former producer for breach of contract, breach of fiduciary duty, and tortious interference, claiming damages for commissions earned by the defendant after she joined a competing firm.

The defendant counterclaimed for reimbursement of unpaid premiums that the plaintiff had deducted from her earnings.

The court found that the plaintiff's unilateral imposition of a charge-back policy for unpaid premiums was a breach of contract, entitling the defendant to reimbursement.

However, the court also found that the defendant breached a valid non-solicitation clause by accepting business from the plaintiff's former clients, requiring her to disgorge the commissions earned.

The court dismissed the plaintiff's claim for breach of fiduciary duty, finding the defendant was not a key employee.

The appellants appealed a trial judgment regarding a dispute over a share of winnings.

The Court of Appeal dismissed the appeal, finding that the trial judge's factual conclusions, particularly regarding a conversation at a restaurant, were supported by the evidence and based on unassailable credibility findings.

Costs of $10,000 were awarded to the respondent.