Benjamin Bathgate

The plaintiffs sought costs in relation to an ex parte Mareva, Norwich and preservation order obtained against the defendants and for responding to a motion to set aside the order.

Farhad Eshfagh, who was partially successful in having the Mareva injunction lifted, also sought costs.

The court declined to award costs at the interlocutory stage, finding it premature to do so given that the matter remains ongoing and no final determination on the merits has been made.

The court rejected claims for substantial indemnity costs, finding no reprehensible or scandalous conduct warranting such an award.

Costs were ordered to be in the cause, to be determined at trial.

The decision concerns a motion to set aside or vary a Mareva injunction, Norwich order, and preservation order obtained ex parte by the plaintiffs in a cryptocurrency mining business dispute.

The court finds a strong prima facie case of fraudulent misrepresentation against most defendants, upholds the Mareva and preservation orders (except as against Farhad Eshfagh), and addresses the standards for full and frank disclosure on ex parte motions, risk of dissipation, and balance of convenience.

The applicants, Inivos Limited and Warrick Fentiman, brought a motion seeking a civil contempt order against the respondent, Richard Marsh, for allegedly breaching a prior Ontario Superior Court order that recognized and enforced English High Court injunctions prohibiting him from publishing defamatory statements.

The court dismissed the motion, finding that the November 7 order was not sufficiently clear and unequivocal to require the respondent to take positive steps to remove pre-existing defamatory content from the internet.

Furthermore, the applicants failed to prove beyond a reasonable doubt that the respondent had actual knowledge of the order's full terms until January 1, 2024, and he posted no new violating material after that date.

The court also stated it would have exercised its discretion to decline a contempt finding, as contempt is a remedy of last resort and there had been substantial compliance since the respondent gained full knowledge of the order.

The plaintiff, Cicada 137 LLC, sought further directions from the court regarding the execution of an Anton Piller order.

The issue arose from delays caused by the defendant's parents in reviewing seized foreign language documents for privilege and their conditions for returning seized computers.

The court declined to provide additional directions, emphasizing that counsel should proceed confidently and transparently under the existing order, and that the Rules of Civil Procedure are not intended for constant judicial supervision of every procedural step.

The plaintiff brought an ex parte motion for a preservation order and an Anton Piller order, alleging the defendant stole $15 million in digital assets.

The court found a strong prima facie case of conversion and noted the defendant's efforts to conceal his identity and transactions.

The court granted the preservation order to freeze the specific digital tokens and the Anton Piller order to allow search and seizure of the defendant's wallet passwords, emphasizing that the law applies to the internet and digital assets.

The plaintiffs brought a motion for judicial approval of 13 discrete auto part class action settlements with the HIAMS, Mitsuba, NGK, and Sumitomo Riko defendants, totaling approximately $14.8 million.

The court found that each of the proposed settlements fell within a zone of reasonableness, noting that the Canadian settlement amounts were proportionate to related American settlements.

The court also approved class counsel's request for a 25 percent contingency fee, plus disbursements and taxes, finding it presumptively valid.

The individual defendants, former directors and officers of Old Noranco, brought a motion seeking advancement of legal expenses from the plaintiff (successor to Old Noranco and the purchaser) to defend against claims of misrepresentation in financial statements and a crossclaim by BDO Canada LLP.

The court determined that the claims, despite being framed against them as shareholders, implicated their fiduciary capacities, thus triggering indemnification rights.

The plaintiff failed to establish a "strong prima facie" case of bad faith against one defendant, Kelly Clinton, which would have disentitled him to funding.

The court also ruled that the existence of third-party funding did not preclude the individual defendants from recovering their legal expenses.

The motion for advancement of legal expenses was granted.

The self-represented plaintiffs sought leave to appeal an order staying their civil action pending the final disposition of related criminal proceedings against one of the plaintiffs.

The civil action alleged various torts and Charter breaches arising from wiretap authorizations that led to the criminal charges.

The Divisional Court denied leave to appeal, finding no reason to doubt the correctness of the motion judge's decision.

The court noted that the fundamental issue in the civil claim—the lawfulness of the wiretap authorization—was identical to a key issue in the criminal case, making the circumstances exceptional enough to warrant a stay.

The self-represented plaintiffs, who are currently incarcerated, brought a motion to extend the time to deliver a motion for leave to appeal an order staying their civil action pending the disposition of criminal charges against one of the plaintiffs.

The court found that the plaintiffs had a bona fide intention to appeal, adequately explained the delay caused by their incarceration and administrative errors, and that the defendants suffered no prejudice.

The court also found that the proposed leave to appeal motion had merit, as the motion judge had not considered the high threshold required to stay a civil proceeding pending criminal charges.

The extension of time was granted, and costs were awarded to the moving party.

Bell Canada sought an interlocutory injunction against Cogeco Cable Canada GP Inc. regarding two aspects of Cogeco's new advertising campaign: the phrase "the best Internet experience in your neighbourhood" and the rebranding of Internet packages with the prefix "Ultra" (e.g., UltraFibre 250).

Bell alleged false and misleading representations under the Competition Act and Trade-marks Act, as well as common-law claims.

The court applied the RJR-MacDonald test for interlocutory injunctions.

It found a serious question to be tried, irreparable harm, and that the balance of convenience favored granting an injunction against the use of "the best Internet experience in your neighbourhood" as Cogeco could not objectively claim to offer the best speed and performance in all areas.

However, the court denied an injunction regarding the "UltraFibre" branding, deeming it puffery when accompanied by specific speed commitments.

The plaintiff was successful on a motion for a stay of proceedings and security for costs against the defendant.

In this costs endorsement, the court fixed the plaintiff's costs of the motion at $15,500 on a partial indemnity basis.

The court considered the extensive litigation history, the defendant's unpaid costs awards, and the reasonable expectations of the parties.

The defendant was ordered to pay the costs by a specified date, failing which its forthcoming motion to set aside the trial judgment would be dismissed.

The plaintiff sought an order prohibiting the defendant, Rosen Ridge Farms Ltd., from pursuing an upcoming motion to set aside a trial judgment unless outstanding costs orders were satisfied and security for costs for the new motion was posted.

The court found that Rosen Ridge had repeatedly failed to comply with previous costs orders and that its claim of impecuniosity was not valid given its shareholder's refusal to post security.

The court ordered Rosen Ridge to pay $47,000 in outstanding costs and post $40,000 as security for costs by June 30, 2016, failing which its motion to set aside the trial judgment would be automatically dismissed.

The appellants abandoned their appeal before the respondent began preparing oral arguments, although the respondent's factum had already been filed.

The Court of Appeal dismissed the appeal as abandoned.

After hearing the cross-appeal and submissions on costs, the court awarded $25,000 in costs to the respondent, noting the complexity of the record.

The cross-appellant appealed the trial judge's deletion of the word 'sham' and the removal of accounting and seizure remedies from the formal judgment.

The Court of Appeal found no error in the trial judge's decision to omit the factual finding of a 'sham' from the declaration that the transaction was void.

However, the Court allowed the cross-appeal in part, granting the accounting and seizure remedies against the corporate defendant, but not against the individual who was not a party to the trial.

The trial judgment was varied accordingly.

This was a costs endorsement following a nine-day trial in a fraudulent conveyance and property transfer dispute in which the plaintiff was entirely successful against the remaining defendant.

The court held that the plaintiff's unaccepted Rule 49 offer engaged the presumptive consequences in Rule 49.10(1), because the judgment was as favourable as the offer, entitling the plaintiff to partial indemnity costs before the offer and substantial indemnity costs thereafter.

Applying the trial judge's discretion under s. 131 of the Courts of Justice Act and the Rule 57.01 factors, the court found the claimed costs generally fair and reasonable given the complexity, duration, expert evidence, and vigorous defence.

However, the court reduced tranche 3 fees by one-ninth for unnecessary focus on irrelevant property transactions, and fixed total costs at $671,331.17 inclusive of disbursements and HST.

The plaintiffs, operators of cheque cashing and currency exchange businesses, sued a bank for breach of contract after the bank froze their accounts and reversed deposits arising from several fraudulent cheques.

The bank counterclaimed for overdraft balances and sought to enforce personal guarantees and personal liability against the principal of the companies.

The court held the bank acted within its contractual rights under the financial services agreements to reverse dishonoured deposits and debit the accounts.

Evidence showed the principal failed to respect the separate corporate identities, was wilfully blind to obvious indicators of cheque fraud, and used corporate accounts interchangeably for personal purposes.

The court pierced the corporate veil and imposed joint and several liability on the companies and their principal for the outstanding debts and overdrafts.

The plaintiff appealed a motion judge's order substituting a former employee as the discovery witness for the corporate defendant instead of its president and CEO.

The plaintiff argued the former employee was not an eligible witness under Rule 31.03(2)(a) and that he should have been granted an adjournment.

The Divisional Court dismissed the appeal, holding that the plaintiff could not raise the eligibility issue for the first time on appeal and that the motion judge did not err in refusing the adjournment.

The appellants appealed an order dismissing their action for failing to comply with a consent order to post $200,000 in security for costs.

The appellants sought an adjournment of the appeal, alleging the respondents' counsel was in a conflict of interest.

The court denied the adjournment, noting the delay and the discrete legal issue on appeal.

On the merits, the court upheld the Master's finding that under Form 56A of the Rules of Civil Procedure, an order for security for costs requires payment in cash unless the order specifies another form of security.

The appellants' attempt to file a late, foreign letter of credit covering only one plaintiff was insufficient.

The appeal was dismissed.

The appellant, an undischarged bankrupt, appealed an order refusing to set aside a previous order that permitted the respondent to enforce several German judgments in Ontario.

The appellant argued that a mutual release signed in a separate action precluded the enforcement.

The Court of Appeal upheld the motion judge's finding that the release did not apply to the respondent, who was not a party to that action.

The Court also refused to admit a settlement agreement as fresh evidence, noting the appellant had previously refused to include it and it failed to meet the Palmer criteria.

The appeal was dismissed.