Bradley Phillips

The plaintiff employer brought a motion to continue an ex parte Mareva injunction against two former employees, alleging they engaged in fraudulent schemes involving payroll and expense accounts.

The plaintiff also moved to strike certain evidence produced by the defendants, including surreptitious recordings and confidential documents.

The court dismissed the motion to strike, noting that illegally obtained evidence may be admissible in civil proceedings, but ordered the defendants to maintain the confidentiality of the documents.

The court dismissed the motion to continue the Mareva injunction, finding that the plaintiff failed to make full and frank disclosure on the ex parte motion and failed to demonstrate a real risk of dissipation of assets.

The moving party sought to extend the time to file notices of motion for leave to appeal from a summary judgment dismissal and a case management endorsement.

The moving party argued that a subsequent costs decision, which found professional misconduct by his lawyer, demonstrated a reasonable apprehension of bias that tainted the earlier decisions.

The Divisional Court dismissed the motion, finding that the justice of the case did not favour an extension due to the lengthy delay, significant prejudice to the responding parties given an impending trial date, and the lack of merit in the proposed appeal.

This costs endorsement addresses two applications for costs following a motion concerning a Mareva injunction, Certificate of Pending Litigation, and Norwich Orders.

The Plaintiff, Amphenol Canada Corp., sought costs against Chandra Devappa, Nandakumar Sundaram, and Sundev Technologies Inc. after Devappa unsuccessfully contested the continuation of the Mareva injunction.

MTech Ltd. sought substantial indemnity costs from Amphenol after successfully having the Mareva injunction set aside against it.

The court awarded Amphenol partial indemnity costs of $14,000 against Devappa, finding her contestation unreasonable given a prior settlement offer.

No costs were awarded against Sundaram and Sundev as they did not oppose the continuation motion.

The court awarded MTech partial indemnity costs of $16,000 from Amphenol, rejecting substantial indemnity as Amphenol's conduct in advancing the fraud claim against MTech was not deemed "reprehensible, scandalous or outrageous."

The plaintiff brought a motion to continue an ex parte Mareva injunction against the defendants, alleging a fraudulent scheme where a former employee used the plaintiff's resources to manufacture parts for third parties and kept the profits.

The court found a strong prima facie case and a serious risk of asset dissipation against the employee's spouse, continuing the injunction against her, the employee, and their company.

However, the court found insufficient evidence of knowing participation or risk of dissipation against a third-party contractor, MTech, and dismissed the motion to continue the injunction against it.

The plaintiffs sued a father and son after the son breached an agreement of purchase and sale for a residential property.

The son forfeited his deposit, and the plaintiffs sought further damages from the father, alleging the son acted as his agent or that the father induced the breach.

The father moved for summary judgment to dismiss the action against him.

The court granted the motion, finding no evidence of an agency relationship or that the father intended to induce a breach of contract.

The court held that partial summary judgment was appropriate to remove the father from the action, leaving only the quantification of damages against the son.

The appellant, Solstice Two Limited, appealed a decision granting relief from forfeiture to the respondent, Valeria Scicluna, who had advanced $293,685 toward the purchase of a condominium but failed to close due to job loss.

The application judge awarded the recovered funds to the bankruptcy trustee rather than to Scicluna.

The Court of Appeal dismissed both the appeal and cross-appeal, upholding the relief from forfeiture as appropriate given the grossly disproportionate nature of the forfeiture and confirming that the funds properly vest in the bankruptcy trustee under the Bankruptcy and Insolvency Act.

The plaintiffs moved to remove estate trustees and spousal trust trustees, and for a receiver over a holding company, alleging misconduct and oppression.

The defendants cross-moved to dismiss the action for delay and for security for costs.

The court dismissed the motions to remove trustees and appoint a receiver, finding sufficient assets secured the plaintiffs' interests and no corporate oppression.

The court also dismissed the defendants' motion to dismiss for delay against the remaining plaintiff, Leslie Barker, but ordered her to post security for costs as a non-resident.

The applicant, an adult grandson of the deceased, sought leave to appeal a decision dismissing his motion for interim support from his grandmother's estate.

The motions judge had found that the applicant failed to establish a prima facie case that he was a dependant whom the deceased was supporting immediately before her death.

The Divisional Court found no good reason to doubt the correctness of the motions judge's decision, noting the sporadic nature of the financial assistance and the deceased's deliberate removal of the applicant from her will.

The motion for leave to appeal was dismissed.

The plaintiff moved under Rule 59.06(2) to set aside or vary a prior order dismissing summary judgment, alleging fraud or newly discovered facts concerning the non-disclosure of a substantial payment from the defendant solicitor's trust account to a co-defendant paralegal, labelled "Sawah fees." The plaintiff also sought to compel the defendant solicitor's examination for discovery in Mississauga rather than Winnipeg.

The court found the non-disclosure suspicious but determined the new evidence was insufficient to overturn the summary judgment dismissal, concluding that the matter should proceed to trial for credibility assessments.

The court granted the request for discovery in Mississauga, citing efficiency and the simplified rules.

The plaintiff brought a motion seeking to invalidate Full and Final Releases she signed and a Notice of Discontinuance against two former lawyers, alleging they acted contrary to her instructions or mistakenly.

The court found that a settlement agreement existed, and the lawyers had ostensible authority to effect it.

Considering factors for setting aside a settlement, including the significant delay by the plaintiff in challenging the settlement and the public policy favoring enforcement of settlements, the court dismissed the motion.

Formerly convicted individuals brought a motion to set aside a Registrar’s administrative dismissal under Rule 48 after their civil actions for malicious prosecution and wrongful conviction had been dismissed for delay.

The court applied the four-factor framework from Reid v Dow Corning Corp, examining explanation for litigation delay, inadvertence, promptness of the motion, and prejudice to the defendants.

The court found the delay adequately explained, largely attributable to document production issues and changes in counsel, and concluded that counsel’s failure to diarize the set-down date constituted inadvertence rather than deliberate delay.

The defendants failed to establish actual prejudice, despite the age of the underlying events.

Applying a contextual approach and considering amendments to Rule 48.14, the court held that justice required permitting the plaintiffs to proceed.

Following dismissal of an action for delay against several defendants, the court addressed the issue of costs.

The moving defendants sought partial indemnity costs exceeding $200,000.

The plaintiff did not dispute entitlement to costs but argued for nominal costs based on impecuniosity.

The court accepted that financial hardship may be considered but emphasized that impecuniosity cannot shield a litigant from the costs consequences of unreasonable conduct or prolonged delay.

Balancing the plaintiff’s financial circumstances against the lengthy litigation history, the court reduced the claimed costs and fixed costs at $50,000 for each group of defendants.

The plaintiff vendor sold a property to the defendant purchaser under an agreement that included a $550,000 bonus payable if the purchaser obtained a 'favourable decision' on its 'current application' for rezoning to permit a supermarket.

The purchaser appealed the town's refusal to the Ontario Municipal Board (OMB) but ultimately settled for a zoning amendment that permitted retail use but not a supermarket.

The plaintiff sued for the bonus.

The court held that the bonus clause was triggered because the purchaser achieved the zoning it desired and urged upon the OMB, which constituted a 'favourable decision' on the appeal.

In CCAA proceedings involving shipping companies, the court addressed issues arising from a Claims Process Order and a referee’s report adjudicating maritime claims.

The court held that the referee was best positioned to determine entitlement to costs arising from the claims adjudication and directed that the referee address costs in accordance with the draft order.

The court declined to restrict cost submissions to certain claimants, holding that all claimants should be on equal footing.

A request to reconsider the referee’s decision or to receive further evidence was premature because no formal motion had been served.

The referee’s report was confirmed, the monitor’s eighth report was approved, and the monitor was discharged subject to conditions.

The applicant sought leave to appeal a costs award made by the motion judge following the dismissal of a motion against two landlords of a bankrupt tenant.

The applicant argued that the reasons for the costs award were unclear and that the costs outline improperly included attendances for mediation and an offer to settle that did not meet Rule 49 criteria.

The Divisional Court dismissed the motion for leave, finding that there were ample grounds for the motion judge's exercise of discretion, including the urgency of the motion, the resounding success of the landlords, and the significant effort required to prepare materials.

The City of Vaughan appealed a decision dismissing its motion for summary judgment, arguing that s. 20(1)(a) of the Oak Ridges Moraine Conservation Act provided complete immunity against the plaintiffs' $151 million claim for malfeasance and negligence.

The plaintiffs alleged the City deliberately delayed their zoning applications, causing them to lose the opportunity to develop their land before retroactive legislative amendments made the development impossible.

The Divisional Court dismissed the appeal, finding that the plaintiffs' cause of action and some damages accrued prior to the legislative amendments, meaning statutory immunity did not completely bar the claim.

The court also reduced the motion judge's substantial indemnity costs award from $169,156.30 to $119,156.30.

Following a decision in which the defendant was successful, the court determined the issue of costs.

Applying Rule 57.01 of the Rules of Civil Procedure and the principle that costs must be reasonable and fair, the court awarded the defendant costs on a partial indemnity scale fixed at $3,661.90, payable by the plaintiff within 60 days.

The plaintiff sought leave to appeal an order staying her wrongful dismissal action pending the resolution of her human rights complaint.

The plaintiff argued the motion judge erred in relying on certain rules and misapprehended the timeline of the human rights investigation.

The Divisional Court dismissed the motion, finding the plaintiff failed to meet the test for leave to appeal under Rule 62.02(4), as the motion judge's exercise of discretion was reasonable given the plaintiff's delay in issuing the statement of claim and the progress of the human rights complaint.

The appellant appealed an order of a Superior Court judge.

The Court of Appeal dismissed the appeal, finding that the motion judge correctly considered and weighed the relevant factors in accordance with the governing jurisprudence.

The appeal was dismissed with costs awarded to the respondents.

The appellant appealed the motion judge's decision to strike out his claims against the Association of Professional Engineers of Ontario and the Crown defendants.

The Court of Appeal agreed with the motion judge that the claim against the Association was properly struck out.

The Court also found that the claim against the Crown defendants did not make out a cause of action outside the reach of s. 7(1) of the Public Authorities Protection Act.

The appeal was dismissed with costs.