Brendan Brammall

The court fixed costs following trial in favour of Kingsdale Partners LP, the successful party, in the amount of $475,000.00 on a partial indemnity basis.

The decision reviews the factors relevant to the exercise of discretion under section 131 of the Courts of Justice Act and Rule 57.01, including the complexity of the litigation, the conduct of the parties, and the reasonableness of the costs claimed.

The court reduced the amount sought due to concerns about duplication of work and high hourly rates, but found the overall claim proportionate to the litigation and the parties' resources.

The court considered whether Kingsdale Partners LP was entitled to a success fee from Sprott Asset Management LP under an engagement agreement relating to Sprott’s acquisition of Central Fund of Canada Ltd. (CFCL).

The court found that the agreement was not limited to a single strategy and was not terminated prior to Sprott’s acquisition of CFCL’s assets.

The court held that Kingsdale was entitled to the success fee and an additional management fee, rejecting Sprott’s arguments that the fee was not triggered or should be de minimis due to the structure of the transaction.

The Canadian Union of Postal Workers (CUPW) sued Quebecor Media Inc., Sun Media Corporation, TVA Group Inc., Jerry Agar, and Avi Benlolo for defamation.

The claim arose from statements published in print and broadcast media in 2014, alleging that CUPW and its members were terrorist sympathizers and supported Hamas, following a demonstration where CUPW flags were seen near a Hamas flag.

The court addressed CUPW's standing as an unincorporated association to sue for defamation, finding it had standing.

The court then examined the defamatory meaning of the impugned statements and the defendants' defences of truth, fair comment, responsible communication, and statutory privilege.

The court found that the defendants successfully established the defence of fair comment, as their opinions were honestly held and based on a sufficient factual substratum, and also discharged their duty of responsible communication and statutory privilege.

The action was dismissed with costs.

The plaintiff, Mastronardi Produce Limited (MPL), sued the defendant, Rainbow Acres Inc. (RAI), for $516,686.40 for unpaid seeds and packaging materials.

RAI conceded the principal debt but argued it was largely statute-barred under the Limitations Act, 2002, and disputed the 18% interest rate.

The court found that MPL successfully rebutted the presumption of discoverability, determining the claim was not discoverable until 2014 due to the nature of the long-standing commercial relationship and ongoing payment efforts.

The court also found that the debt constituted a running account, and RAI's partial payments and signed acknowledgements reset the limitation period.

However, the court declined to apply the 18% contractual interest rate, finding no implied agreement, and instead awarded pre-judgment and post-judgment interest at the default rates prescribed by the Courts of Justice Act.

This is an appeal concerning indemnification for pre-closing tax liabilities following a share purchase agreement (SPA).

The appellants (FQM) sold shares of a Finnish mining company (Kevitsa) to the respondents (Boliden).

A Finnish tax reassessment increased Kevitsa's taxable income for 2012-2016, leading to additional tax liabilities for those years and consequential liabilities for 2017-2018 due to the effective loss of accumulated tax losses.

The application judge found FQM liable under both a general indemnification provision (for breach of representation that there were "no grounds for reassessment") and a tax-specific indemnity.

The Court of Appeal dismissed FQM's appeal, upholding the application judge's finding of liability under the general indemnification provision, specifically confirming that the "no grounds for reassessment" warranty was absolute and that the loss of tax losses was a reasonably foreseeable consequential loss under Ontario contract law principles.

The applicants purchased a Finnish mining company from the respondents under a share purchase agreement containing tax indemnities.

Post-closing, the Finnish tax authority reassessed the company's pre-closing tax years, disallowing deductions and effectively eliminating tax loss carry forwards that the applicants had intended to use in post-closing years.

The applicants sought indemnification for the reassessed taxes and the resulting increased tax burden in post-closing years.

The Superior Court of Justice held that the reassessment breached the respondents' unqualified warranty that there were no grounds for reassessment.

The court further held that the increased taxes in post-closing years were a reasonably foreseeable consequence of the reassessment and fell within the scope of the indemnities.

The respondents were ordered to pay the amounts already collected by the tax authority, with the remainder to be determined after the conclusion of Finnish tax appeals.

The Ontario Human Rights Commission sought leave to intervene in a pending motion for leave to appeal from a Divisional Court decision dismissing a Charter challenge to Ontario's sex education curriculum directive.

The OHRC argued it would make unique contributions by addressing the public interest dimension and alleged errors in the Divisional Court's discrimination analysis.

The motion judge dismissed the OHRC's request for intervener status on the motion for leave to appeal, finding that such interventions should be rare and extraordinary, and that the applicants were already capable of advancing these arguments.

The motion judge adjourned the OHRC's request for intervener status on any subsequent appeal.

The appellant, 2138746 Ontario Inc., appealed a trial judgment finding that the respondent, Friday Harbour Village Inc., acquired legal and beneficial ownership of the Marina Strip by adverse possession, did not abandon its titled right of way over the Marina Strip, had a prescriptive easement over the Marina Strip, and did not commit actionable trespass.

The respondent cross-appealed a finding that its right of way over the Western Strip was abandoned.

The Court of Appeal dismissed all appeals, upholding the trial judge's findings on adverse possession and related matters.

Following a seven-day trial regarding adverse possession and a right of way, the parties appeared to settle the formal judgment and address costs.

The court amended the judgment under Rule 59.06 to include an omitted declaration regarding a gate encroachment and adopted registerable Land Titles descriptions for the disputed lands.

On costs, the court found the plaintiff was the substantially successful party and had beaten its pre-trial offer to settle.

The court fixed costs at $500,000 payable to the plaintiff, reflecting the high quality of advocacy and the application of Rule 49.10.

The defendants, Home Services Energy Inc. and The HSE Group of Companies Inc. ("HSE"), brought a motion seeking particulars of the plaintiffs' (Enercare Inc. et al., "Enercare") statement of claim, specifically the identities of customers to whom alleged misrepresentations were made, and for the production of certain contracts.

Enercare's action alleged misrepresentations leading to customer loss and sought damages and injunctive relief.

The court granted the request for customer names, finding them essential for HSE to properly plead its defence, particularly under Rule 25.06(8) for misrepresentation allegations.

The court also ordered production of "lost contracts" with its former customers, which formed the basis of its damages claim, but declined to order production of contracts between HSE and former Enercare customers.

The Plaintiff, Enercare Inc., brought a motion to strike portions of the Defendant's (Energy Canada Home Services Inc.) Statement of Defence and Counterclaim (SDC).

The motion sought to strike allegations of anticompetitive conduct, fraudulent misrepresentation, negligent misrepresentation, and unjust enrichment.

The court struck the allegations of anticompetitive conduct, fraudulent misrepresentation, and unjust enrichment, granting leave to amend.

The claim for negligent misrepresentation was struck without leave to amend, as the court found no reasonable chance of success, particularly regarding a duty of care between competitors.

Costs were awarded to the Plaintiff.

The plaintiff, Husky, brought an action against its founder, Robert Schad, his new company Athena, and others, alleging misuse of confidential information relating to injection molding machines.

Husky claimed that Athena accessed confidential information from Husky machines placed at a third-party facility (Niigon) and used it to develop competing machines.

The defendants argued the claims were statute-barred, that most issues were settled during prior negotiations, and that no confidential information was misused.

The court dismissed Husky's claims, finding they were statute-barred as Husky knew of the material facts more than two years before commencing the action.

The court also found that the commercially available machines were not confidential, and that Athena did not make material use of any confidential information from the prototype machines.

Athena's counterclaim for abuse of process and injurious falsehood was also dismissed for lack of evidence.