Brendan van Niejenhuis

The applicants sought judicial review of an administrative directive redirecting frozen racing funds to the benefit of the Ontario racing industry rather than re-distributing them race by race.

The court held that the applicants had no remaining right or interest to challenge the directive because the earlier forfeiture order had finally disposed of the entire frozen account and any argument that some funds were from non-purse sources should have been raised in the original proceedings.

The court also held that judicial review is discretionary and declined relief because the application was perfected more than six years after commencement, the delay was excessive and inadequately explained, and prejudice was presumed.

The application was dismissed with agreed costs.

The appellant trainer appealed a 10-year suspension and $40,000 penalty arising from an out-of-competition test on a racehorse that yielded synthetic darbepoetin alfa.

The panel heard and decided only the threshold issue of whether the Certificate of Positive Analysis was valid, with the appellant attacking the chain of custody, laboratory standards compliance, shipping integrity, and the inability to promptly retest residual samples.

The panel held that the screening and confirmatory testing were properly performed, that the absence of a tamper-proof layer on shipment to the confirmatory laboratory did not undermine the reliability of the result, and that no actual or apprehended bias arose from identifying material in shipping documents.

The panel found clear, cogent and convincing evidence that the tested blood sample contained synthetic DPO and upheld the certificate, leaving the remaining issues in the appeal for later hearing.

This application concerned a dispute over a Costs Sharing Agreement between Manning Developments Inc. and the Municipality of Lakeshore, primarily focusing on the issue of costs.

The applicant, Manning, sought various orders compelling the respondent, Lakeshore, to fulfill obligations under the agreement, such as providing accounting, engineering drawings, and conveying land.

The court found that most of the relief sought by Manning was either moot, premature, or lacked practical utility, as Lakeshore had largely complied or was prepared to comply when conditions were met.

The court determined that Manning's conduct, including commencing and quickly discontinuing a "Misfeasance Action" against Lakeshore's council members and staff, necessitated Lakeshore bringing a separate Municipal Conflict of Interest Act (MCIA) application.

The court concluded that Manning's application constituted "harassment of another party by the pursuit of fruitless litigation" and dismissed the application.

Lakeshore was awarded substantial indemnity costs for the main application and partial indemnity costs for the related MCIA application.

The Gendelman Defendants sought to vary a Mareva order for the third time, requesting authorization to sell a property (Ravel Property) and access proceeds for legal fees, increased living expenses, and repayment of third-party debts.

The Plaintiff opposed the variation.

The court applied the four-part Credit Valley test for varying Mareva injunctions, finding that the Gendelman Defendants failed to establish they had no other assets available, were not fully transparent about their finances and income, and did not adequately explain significant discrepancies in their net worth statements or the nature of the debts they sought to repay.

The court dismissed the motion, emphasizing the strong prima facie case of the Plaintiff regarding alleged misappropriation of funds.

This is a costs endorsement following the disposition of three appeals.

The parties settled the issue of costs by agreement.

The appellant was ordered to pay costs of $13,750, all inclusive, to the respondents.

The appellant, Voreon Inc., appealed the dismissal of three applications arising from a business relationship breakdown.

Two appeals concerned real estate developments (Higher Living and Eminence Living) and the interpretation of a Settlement Agreement versus a shareholders agreement regarding promissory notes.

The third appeal (MHH appeal) involved a mortgage's validity, a set-off claim for a promissory note, and the transfer of condominium units.

The Court of Appeal dismissed the Higher Living and Eminence Living appeals, affirming the application judge's finding that the Settlement Agreement superseded the shareholders agreement and discharged the promissory notes.

However, the MHH appeal was allowed in part, remitting the issues of the $64,135 set-off note and the transfer of the parking/storage units to the Superior Court for adjudication, citing unaddressed issues and a palpable error regarding party status.

The appellants sought leave to appeal a motion judge's decision on costs, which had awarded partial indemnity costs of $450,000 to Pembina Pipeline Corp. and $500,000 to BluEarth Renewables Inc. The Court of Appeal for Ontario denied leave to appeal, finding that the motion judge's costs award was a discretionary decision entitled to deference.

The court concluded that there was no error in principle and the award was not plainly wrong, as the motion judge had properly considered factors such as the respondents' success, the complexity of the proceeding, the amounts at stake, and the conduct of the litigation.

The appellants, Greta Energy Inc. and Great Grand Valley 2 Limited Partnership, appealed a summary judgment dismissing their action against Pembina Pipeline Corporation and BluEarth Renewables Inc. The case involved the sale of bundled assets, some subject to Rights of First Refusal (ROFRs).

The appellants alleged that the respondents manipulated asset prices in bad faith to prevent the exercise of ROFRs, breaching duties of good faith and honest performance, inducing breach of contract, and conspiracy.

The Court of Appeal upheld the motion judge's findings that the respondents did not breach their duty of good faith, did not owe a fiduciary duty, did not conspire, and did not induce breach of contract, as their actions were commercially reasonable and not intended to "eviscerate" the ROFRs.

The appeal was dismissed.

The moving parties brought motions for leave to appeal the order of Koehnen J. dated June 9, 2022.

The Divisional Court dismissed the motions for leave to appeal with no order as to costs.

The appellants appealed a Notice of Proposal by the Registrar to revoke T-Dot's Cannabis Retail Operator licence and refuse a Cannabis Retail Manager licence to Manoharan.

The Registrar alleged that Manoharan's spouse was an "interested person" in the business and that his past conduct, along with Manoharan's alleged misrepresentations and financial history, provided reasonable grounds to believe they would not carry on business with integrity, honesty, or financial responsibility.

The Tribunal found that the spouse was not an interested person under the Cannabis Licence Act, 2018, as he had no beneficial interest, control, or financing role in the business.

The Tribunal also found insufficient evidence of misrepresentations or financial irresponsibility.

The Tribunal set aside the Notice of Proposal and directed the Registrar to issue the manager licence without conditions and maintain the operator licence subject to a condition requiring annual review engagements.

This is a costs endorsement following successful summary judgment motions by the defendants.

The court determined the scale and amount of costs payable by the plaintiffs to the defendants.

The defendants sought substantial indemnity costs based on their offers to settle, which proposed dismissal of the action without costs.

The court found that such offers, while relevant, do not automatically attract substantial indemnity costs, and awarded partial indemnity costs, considering factors like success, complexity, amounts at stake, and litigation conduct.

The plaintiffs, who held a right of first refusal (ROFR) over certain wind farm assets, sued the vendor and the third-party purchaser, alleging they conspired to artificially inflate the purchase price allocation of the ROFR assets to discourage the plaintiffs from exercising their rights.

The plaintiffs sought damages for breach of the duty of good faith, breach of fiduciary duty, conspiracy, and inducing breach of contract.

On cross-motions for summary judgment, the court dismissed the plaintiffs' claims, finding that the vendor acted in good faith and the purchaser was entitled to act in its own commercial self-interest.

The court held that a difference in valuation or a strategic bid allocation does not, without more, constitute a breach of the duty of good faith or an intent to eviscerate the ROFR.

Following a 14-day trial on an application to pass accounts where the applicant trustees were ordered to repay $150,531.14 to the trust, the respondent sought $567,157.64 in substantial indemnity costs.

The court found the respondent was the successful party and entitled to costs.

However, the court declined to award enhanced costs, finding that while the applicants failed to keep proper records and created documents to reconstruct the accounts, their conduct was not reprehensible or scandalous.

The court also found the respondent's costs claim was disproportionate and unreasonable due to over-lawyering and unreasonable litigation conduct.

The court awarded the respondent $90,000 in costs inclusive of disbursements and taxes.

Following the dismissal of the applicant's application and motion for leave to file fresh evidence, the parties made written submissions on costs.

The respondent sought substantial indemnity costs of $110,654, arguing the applicant's conduct was reckless and the application meritless.

The court found the applicant's conduct did not rise to the egregious level required for substantial indemnity costs and awarded partial indemnity costs.

The court declined to award costs for the fresh evidence motion, finding the respondent's evidence was confusing and undisclosed.

The applicant was ordered to pay $50,000 in all-inclusive costs.

The applicant developer sought declarations and mandatory orders alleging the respondent municipality breached a Costs Sharing Agreement by failing to construct municipal services with sufficient capacity for a proposed high-density residential development.

The municipality argued the application was premature because the proposed development was not permitted under current zoning and capacity studies were ongoing.

The court dismissed the application, finding it premature and lacking practical utility, as the meaning of 'full development' in the agreement could not be determined while zoning appeals and municipal processes were still pending.

A motion to admit fresh evidence was also dismissed.

The applicants, parents and trustees of a trust established for their son following a serious brain injury, applied to pass their accounts.

The trust received $418,675.25 over 17 years, but the trustees administered it entirely in cash and lacked receipts for most disbursements.

The court found that the trustees failed to keep proper records and included fictitious loans and unpaid services in the accounts.

While some expenses were allowed, the trustees failed to account for $165,531.14.

After deducting $15,000 for trustee compensation, the court ordered the trustees to repay $150,531.14 to the trust.

The plaintiffs brought a motion to certify the action as a class proceeding for settlement purposes against TD, RBC, Credit Suisse, and Deutsche Bank in a case alleging a conspiracy to fix prices in the futures exchange market.

The court found that the criteria for certification under section 5(1) of the Class Proceedings Act, 1992 were met and granted the motion, approving the settlement agreements and the plan of dissemination.

The applicants sought to enforce two letters rogatory issued by the U.S. District Court for the District of Columbia to compel documentary and oral evidence from the respondent, a non-party in the underlying U.S. patent infringement litigation.

The respondent opposed, arguing the requests were overly broad, moot due to discovery deadlines, and contrary to public policy as they sought proprietary source codes.

The court granted the applications, enforcing the letters rogatory but narrowing their scope and imposing protective conditions, including compliance with a supplemental protective order and the deemed undertaking rule.

The appellant appealed a decision of a Reference Judge upholding the Chief Firearms Officer's refusal to renew his firearms licence.

The refusal was based on three past incidents of alleged domestic violence that resulted in criminal charges, which were ultimately withdrawn but led to two peace bonds.

The appellant argued the Firearms Officer unreasonably relied on unsworn police reports and withdrawn charges.

The Superior Court of Justice dismissed the appeal, finding that the Firearms Officer reasonably considered the cumulative effect of the incidents and peace bonds in determining that issuing the licence was not in the interests of public safety.

The Plaintiffs sought partial indemnity costs and disbursements totaling $1,391,715.45 following a successful, but partially limited, certification motion in a class action against several financial institutions.

The Defendants argued for a significant reduction, citing their substantial success in narrowing the class definition and potential double recovery from prior settlements.

The court awarded the Plaintiffs $700,000 in legal fees and HST, payable forthwith, and ordered disbursements of $468,705.06 payable in the cause.

The reduction in fees reflected the Defendants' success in streamlining the class action and reducing their potential liability, which the court deemed important for the integrity of the class actions regime and to discourage overambitious claims, without constituting a distributive costs award.