Brendan Fitzpatrick Morrison

Nobilis Health Corp. sought costs after successfully defending a class action certification motion and leave application brought by Vince Cappelli.

Nobilis requested $200,000 in partial indemnity fees and $311,696.39 in disbursements, primarily for three expert reports.

Cappelli did not oppose the fees but challenged the disbursements as excessive and duplicative.

The court found the expert evidence necessary and critical, despite some overlap, and deemed the disbursements fair and reasonable given the litigation risk.

Costs were awarded to Nobilis as requested, with the Class Proceedings Fund ultimately responsible for payment.

The plaintiff, 1085372 Ontario Limited, brought an action under the Bankruptcy and Insolvency Act (BIA) and the Fraudulent Conveyances Act (FCA) to set aside a transfer of shares in Linus Entertainment Inc. from Michael Shumak to Geoff Kulawick.

The plaintiff alleged the transfer was at undervalue or a fraudulent conveyance.

The court found that the parties dealt at arm's length, the transaction occurred outside the one-year clawback period under the BIA, and the transfer was not at undervalue.

Furthermore, the court found no fraudulent intent on the part of Shumak and that Kulawick acted in good faith and paid good consideration.

The action was dismissed.

The court issued its third and final set of reasons following a hearing on June 27, 2018, confirming an interim ruling and addressing costs.

The court drew negative inferences against Greyslone Ltd., Belview Management Ltd., and Mr. Czerlau due to evasive conduct and lack of corporate authority, disallowing claims of privilege over solicitors' files.

It ordered all solicitors' files (Assuras, Lof, Brown) to be delivered to an Independent Supervising Solicitor for review and production of relevant documents to the plaintiff.

The court awarded substantial indemnity costs of $19,878.53 against Mr. Czerlau, Greyslone Ltd., and Belview Management Ltd. jointly and severally, and partial indemnity costs of $13,626.70 against Ms. Assuras, also jointly and severally with the others to that extent.

The plaintiff, Canadian National Railway Company (CN), brought a motion to compel the production of files and examination for discovery of three non-party lawyers: Mr. Brown, Mr. Lof, and Ms. Assuras.

The motion arose from a Mareva and Anton Pillar order and a subsequent summary judgment against Greyslone and Belview, which were found to have no legal status at the time of certain transactions and failed to account for $661,000.

Ms. Assuras, counsel for Greyslone and Belview, opposed the motion, asserting privilege, while Mr. Lof and Mr. Brown took no position.

The court found Mr. Czerlau's (who instructed Ms. Assuras) testimony to be evasive and misleading, and inferred that Greyslone and Belview were not acting at arm's length to Mr. Holmes, suggesting they were shams.

Consequently, the court proposed to draw negative inferences against Greyslone and Belview's bona fides, disallow claims of privilege, and ordered the production of the entire files of Ms. Assuras, Mr. Lof, and Mr. Brown to the plaintiff, subject to a 14-day period for further submissions.

The appellant, a police officer who pleaded guilty to dangerous driving causing death in a 2008 collision that killed an 18-year-old, posted comments on Facebook in 2015 after completing his sentence.

The respondents, relatives of the deceased, commenced a defamation action.

The appellant brought a motion under s. 137.1 of the Courts of Justice Act to dismiss the action, arguing his posts related to matters of public interest.

The motion judge dismissed the motion, finding the posts did not relate to public interest but rather constituted an attempt to shift blame to the deceased and her family.

The motion judge awarded costs to the respondents despite the statutory presumption against such awards.

The Court of Appeal upheld both the dismissal of the s. 137.1 motion and the costs award.

Indigenous peoples from Ecuador obtained a US$9.5 billion judgment against Chevron Corporation for environmental devastation caused by oil exploration.

After failing to enforce the judgment in the United States due to findings of fraud by the plaintiffs' counsel, they sought to enforce it in Ontario against Chevron Canada, a seventh-level subsidiary.

The motion judge dismissed the claim, finding that Chevron Canada's shares and assets were not exigible under the Execution Act and that the corporate veil should not be pierced.

The appellants appealed, arguing both that the Execution Act permitted seizure of Chevron Canada's assets and that the corporate veil should be pierced in the interests of justice.

The Court of Appeal dismissed the appeal on the merits but reduced the costs award, recognizing the litigation as public interest litigation.

Indigenous Ecuadorian villagers obtained a US$9.5 billion judgment against Chevron Corporation in Ecuador for environmental pollution.

They sought to enforce the judgment in Ontario against Chevron Corporation and its seventh-level indirect subsidiary, Chevron Canada.

The motion judge granted an order requiring the plaintiffs to post security for costs of approximately $942,951 before the appeal could proceed.

The appellants moved to vary this order.

The Court of Appeal set aside the security for costs order, finding that the motion judge erred in principle by failing to conduct a holistic analysis of the justness of the order in all circumstances.

The court emphasized that security for costs orders must be just and should not be used as a litigation tactic to prevent cases from being heard on their merits.

The Ecuadorian plaintiffs sought to enforce a judgment of approximately 9.5 billion dollars from an Ecuadorian court against Chevron Corporation and its subsidiary, Chevron Canada Limited, in Ontario.

Following the Supreme Court of Canada's affirmation of Ontario's jurisdiction to hear the enforcement action, the motion judge granted summary judgment in favor of Chevron and Chevron Canada, dismissing the plaintiffs' claims on the basis of separate corporate personality.

The plaintiffs appealed.

Chevron and Chevron Canada brought a motion for security for costs.

The court held that security for costs was warranted because the plaintiffs were ordinarily resident outside Ontario, had not demonstrated impecuniosity, and had not established a good chance of success on appeal.

The court rejected the plaintiffs' argument that a new approach to security for costs should apply to foreign judgment enforcement actions, finding that comity does not require foreign litigants to be treated more favorably than domestic litigants.

The Holmes defendants sought leave to appeal an order dismissing their fourth motion to set aside a Mareva injunction and ancillary orders.

The motion judge had dismissed the Mareva order challenge on grounds of waiver and res judicata.

The applicant argued for leave based on conflicting decisions and doubt regarding the order's correctness.

The court denied leave, finding no conflicting decision on principle and no serious debate about the order's correctness, emphasizing the unique circumstances and the history of repeated, unsuccessful motions.

The appellants appealed the motion judge's decision to strike paragraph 25 of their statement of claim, which alleged that the respondent West Face distributed a defamatory report to unnamed third parties whose identities were known to West Face.

The appellants had already established a prima facie case of defamation by alleging publication to named persons at a specified time and place.

The Court of Appeal held that the motion judge erred in striking the paragraph, finding that the appellants had demonstrated they were proceeding in good faith with a prima facie case and were not on a fishing expedition.

The court allowed the appeal and set aside the order striking paragraph 25.

The defendants sought security for costs against the plaintiff, alleging outstanding costs orders and that the action was frivolous and vexatious.

The court granted the motion for security for costs against three of the four defendants, finding the claims against them to be frivolous and vexatious and rejecting the plaintiff's plea of impecuniosity due to unexplained resources.

The claim against the fourth defendant was not deemed frivolous or vexatious at this stage due to unresolved credibility issues.

The successful moving parties were deprived of their costs for the motion due to a procedural breach.

This endorsement addresses costs for several prior motions.

The plaintiffs (Nicholson Group) were awarded costs for a successful motion for leave to amend their statement of claim.

The Janza group and Horbatiuk defendants were awarded costs for their successful motions regarding abandoned motions and contempt proceedings.

Andrey Pinsky was awarded costs against the plaintiffs for successfully opposing an indemnity motion brought by Mr. Nicholson.

The court applied principles under the Courts of Justice Act and Rule 57.01(1), declining substantial indemnity where no egregious conduct was found.

The defendants brought a motion to stay the proceeding, arguing that the plaintiff corporation lacked authority to continue the action due to ongoing litigation (the "Newmarket application") concerning its ownership and management.

They also contended that two court orders from the Newmarket application, which restrained settlement of the Barrie action, effectively constituted a stay.

The plaintiff opposed the motion, asserting its proper authority to proceed and arguing that the Newmarket orders only restricted settlement, not the progress of litigation.

The court dismissed the defendants' motion, finding that the Newmarket orders did not stay the Barrie proceedings and that the plaintiff's sole director and majority shareholder possessed the requisite authority to retain and instruct counsel for the action.

In a foreign judgment recognition and enforcement appeal, the Court held that an enforcing forum need not establish a real and substantial connection between itself and either the dispute or the judgment debtor.

The only jurisdictional prerequisite is that the foreign court issuing the judgment had proper jurisdiction under the real and substantial connection framework or traditional grounds.

The Court also held that traditional presence-based jurisdiction over a corporate defendant is established where the corporation carries on business in the province and is served there.

Questions about ultimate enforceability against related corporate entities were left for later procedural stages.

The defendant insurer brought a motion to stay a civil action on the basis that the dispute was subject to an arbitration agreement under a broker/agent agreement.

The plaintiff argued it was not a party to the arbitration agreement, having signed only a later addendum for limited purposes.

The court applied the principle that where it is arguable a dispute falls within an arbitration agreement, the matter should be referred to arbitration and the arbitral tribunal should determine jurisdiction.

The court found it was arguable that the plaintiff had become a party to the underlying agreement and its arbitration clause through the addendum and its own pleadings alleging breach of that agreement.

The action against the moving defendant was therefore stayed in favour of arbitration.