Brendan van Niejenhuis

This is a costs endorsement following the release of reasons in an appeal.

The respondents advised that the court had misapprehended the appellants' oral costs submissions regarding quantum.

The parties were permitted to provide further written submissions on the costs issue.

The court affirmed its costs order for the appeal but altered the costs of the motion below, reducing the amounts payable by Bank of Montreal and Toronto Dominion Bank.

The appellants sought to add Toronto Dominion Bank and Bank of Montreal as defendants to an existing class action alleging a secret conspiracy to manipulate the foreign exchange market.

The motion judge dismissed the motion on the basis that the claim against the respondents was statute-barred under the Limitations Act, 2002.

The Court of Appeal allowed the appeal, finding that the motion judge erred by establishing too high an evidentiary threshold and by finding that the respondents' identities could have been discovered with reasonable diligence without proper evidentiary foundation.

The court held that the appellants provided a reasonable explanation for why they could not have identified the respondents before the limitation period expired, and that the issue of due diligence should be determined on a summary judgment motion or at trial.

The plaintiffs in a class action alleging a price-fixing conspiracy in the foreign exchange market brought a motion to amend their statement of claim to add BMO and TD as defendants.

The proposed defendants argued the claims were statute-barred under the Limitations Act, 2002.

The plaintiffs claimed they only discovered the involvement of BMO and TD after receiving a proffer of evidence from a settling defendant.

The court dismissed the motion, finding that the plaintiffs failed to exercise reasonable diligence to discover the claims against BMO and TD before the expiry of the limitation period.

In a proposed class action alleging price-fixing in the foreign exchange market, the plaintiffs sought to add BMO and TD as defendants.

BMO and TD argued the claims were statute-barred.

On cross-examination for the joinder motion, the plaintiffs' deponent refused to answer questions about a settlement proffer from another defendant, which the plaintiffs claimed was the source of discovering the claims against BMO and TD.

BMO and TD brought a motion to compel answers.

The court ordered the deponent to answer the questions, finding that the evidence was relevant to rebutting the presumption of discovery under the Limitations Act, 2002, and that any privilege attaching to the proffer had been waived when the plaintiffs voluntarily relied on it.

The appellants appealed the Divisional Court's dismissal of their judicial review application challenging three decisions of the Ontario Racing Commission: a Suspension and Freezing Order against the owner, a procedural decision dismissing motions to quash or stay the orders, and a merits decision imposing licence suspensions, account forfeiture, and a fine.

The appellants raised three grounds of appeal: inadequate notice and particulars, loss of jurisdiction due to a panel member's expired term, and inadequate reasons.

The Court of Appeal dismissed the appeal, finding that the notice was sufficient, the panel member could continue to sit under the Statutory Powers Procedure Act, and the reasons were adequate to permit review of the reasonableness of the decision.

These consolidated appeals arise from related class actions certified in 2012 concerning bingo license and administration fees charged by two municipalities.

The appellants, charitable organizations, sought to amend their pleadings after the opt-out period expired to claim disgorgement of all allegedly illegal fees received by the municipalities, including those paid by persons who had opted out of the class.

The Court of Appeal quashed appeals of interlocutory orders lifting protective orders that had shielded the identities of opt-outs during a reconsideration period, and dismissed appeals of orders refusing leave to amend the statements of claim.

The court held that the proposed amendments would fundamentally alter the nature of the certified claims and lacked reasonable prospect of success.

The Plaintiffs' motion for a third inspection was dismissed, leading to this costs endorsement.

The Defendants, having succeeded on the motion, sought partial indemnity costs.

The Plaintiffs argued for "costs in the cause," contending that the motion was premature rather than a final determination of inspection entitlement.

The court, however, found no reason to depart from the usual rule that costs follow the event, as the motion was dismissed outright.

The court awarded the Defendants partial indemnity costs of $48,880.70, deeming the amount fair and reasonable given the complexity of the technical issues and the parties' sophistication.

This appeal concerns whether a proposed securities class action asserting a statutory cause of action for misrepresentation under Part XXIII.1 of the Ontario Securities Act was time-barred by the three-year limitation period in section 138.14.

The appellant commenced a class action in May 2009 but did not bring a motion for leave to proceed with the statutory claim within the limitation period.

The motion judge refused to grant leave nunc pro tunc (retroactively), finding that the appellant failed to meet the test established by the Supreme Court of Canada in Canadian Imperial Bank of Commerce v. Green.

The Court of Appeal upheld the motion judge's decision, finding no error in principle in the exercise of discretion to deny nunc pro tunc relief.

The plaintiffs sued the defendants for allegedly breaching a software license agreement by using proprietary source code to develop a competing product.

The plaintiffs brought a motion under Rule 32.01 of the Rules of Civil Procedure for an order to inspect the defendants' computer systems.

The court dismissed the motion, finding it premature as traditional documentary discovery had not yet occurred, and noting that the proposed inspection was wide-ranging and highly intrusive.

The dismissal was without prejudice to the plaintiffs' right to bring a new motion after discovery.

The defendants were successful on a motion for leave to appeal brought by the plaintiffs in a class proceeding.

The defendants sought partial indemnity costs of $10,000, while the plaintiffs suggested $5,000 was appropriate given the motion was in writing.

The court fixed costs at $6,500 payable forthwith, considering the costs awarded on the underlying contempt motion and the merits of the leave application.

The plaintiffs in two class action proceedings sought leave to appeal the dismissal of their motion for contempt against the defendants.

The contempt motion alleged that the City of Windsor breached an order limiting communication with class members during an opt-out period.

The court denied leave to appeal, finding that the original judge correctly applied the test for contempt, which requires proof beyond a reasonable doubt, a clear and unequivocal order, and deliberate and willful disobedience.

The court found no error in the original judge's conclusion that the order was ambiguous and that a wilful breach was not proven.

Furthermore, the court determined that the plaintiffs failed to identify any conflicting decisions or raise matters of such importance to warrant leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure.

The defendants brought a motion to dismiss the plaintiff's action, arguing that a Founders' Restricted Rights Agreement explicitly mandated arbitration for all disputes.

Despite the plaintiff initially commencing an action to gain discovery advantages, both parties ultimately agreed on the validity and enforceability of the arbitration clause.

The court dismissed the action, finding the plaintiff had no right to litigate the dispute in court and should have pursued arbitration or discontinued the action earlier.

Costs were awarded to the defendants due to the plaintiff's unnecessary litigation and refusal to withdraw the action.

The plaintiffs brought a contempt motion alleging that the defendants, the City of Windsor and the Town of Tecumseh, breached a January 29, 2016 order regarding an opt-out campaign in a class proceeding.

The alleged breaches involved new radio advertisements and a live interview by the Mayor of Windsor.

The court found that the order's terms were arguably subject to more than one interpretation and that the defendants did not deliberately and willfully breach the order.

The contempt motion was dismissed, and the plaintiffs' request for further disclosure was denied.

The plaintiff sought leave to enforce a consent judgment obtained following a settlement agreement arising from a large employee fraud.

The moving party argued that the defendant had materially breached the settlement agreement by failing to disclose assets, gifts, and financial transactions and by failing to account for significant proceeds obtained from resale of goods purchased through the fraud.

The court held that the consent judgment was contractually linked to the settlement agreement and therefore subject to conditions restricting enforcement against the defendant’s residence unless a material breach occurred.

The court found multiple material breaches, including undisclosed loans, gifts, assets, and evasive disclosure regarding hundreds of thousands of dollars in proceeds.

The breaches removed the contractual protection against execution.

Leave was granted nunc pro tunc for issuance of a writ of seizure and sale.

The plaintiff brought a motion for summary judgment seeking repayment of a $400,000 loan advanced for the production of a film.

The borrower and guarantor argued that a separate agreement governing distribution of film revenues subordinated repayment of the loan until other liabilities were satisfied and effectively transformed the loan into a risk investment.

The court held that the loan agreement and promissory note clearly provided that the loan was payable on demand and were not modified by the revenue-sharing agreement.

The defendants’ interpretation would contradict the express contractual language and render the loan agreement meaningless.

Summary judgment was granted for the full loan amount plus interest.

The moving party regulator brought a motion to strike a lengthy statement of claim alleging various wrongs arising from disciplinary proceedings, settlement agreements, trustee services, and bankruptcy matters.

The court held that many allegations were barred by a prior settlement and release, constituted impermissible collateral attacks on regulatory decisions, were statute-barred, or disclosed no reasonable cause of action.

The court considered whether the pleadings could support the tort of misfeasance in public office but found that the material facts alleged did not establish deliberate unlawful conduct or knowledge of likely harm.

Even accepting the pleaded facts as true, the claim could not succeed in law and amendment would not cure the defects.

The action against the regulator was therefore dismissed and costs were awarded.

A jockey brought a civil action alleging malicious prosecution against racing stewards and the provincial racing regulator after his one‑year suspension for failing to persevere with his mount was overturned on appeal by the regulator.

The defendants moved for summary judgment.

The court held that issue estoppel and abuse of process barred the action because the propriety of the stewards’ investigation and their alleged malice had already been addressed in a full de novo hearing before the regulatory tribunal.

In any event, the plaintiff failed to establish essential elements of the tort of malicious prosecution, including absence of reasonable and probable cause and malice.

Summary judgment was granted dismissing the action.