Brett David Moldaver

Following an appeal that was allowed in part with divided success, the parties made written submissions regarding costs in the court below.

The appellants sought to set aside a $20,000 costs award against them, while the respondent argued the costs order should remain.

The Court of Appeal held that the divided success on appeal informed the appropriate disposition of costs below.

The court set aside the $20,000 costs award and ordered no costs of the motion in the court below.

The appellants appealed a motion judge's order that permanently stayed their action against a law firm (A&B) on the basis that it constituted an abuse of process for not having been added to an existing 'Main Action' involving the same factual circumstances.

The Court of Appeal found that the motion judge erred in concluding that commencing a separate action was an abuse of process, as it is not always abusive to start a new action instead of amending an existing one, especially when distinct claims or privilege concerns are involved.

However, the Court upheld the procedural direction that the claims should proceed in a single action.

The appeal was allowed in part, setting aside the permanent stay and replacing it with a temporary stay, allowing the appellants to bring a motion to add A&B as a defendant to the Main Action, with the ultimate determination of a permanent stay to be made by the motion judge hearing that application.

The Corporation of the City of Ottawa moved to set aside a Registrar's order dismissing its action for delay and to reinstate the action.

The motion was opposed by some third parties.

The court applied the test for setting aside a dismissal order for delay, finding that the City provided a satisfactory explanation for the delay, consistently intended to prosecute the action, and acted promptly to address the dismissal.

The court also determined that the opposing parties would not suffer significant prejudice from the reinstatement.

The motion was granted, reinstating the main action and automatically reviving derivative third-party claims.

The appellant, an unsecured creditor, appealed a motion judge's order authorizing a pooled distribution of assets under a receivership, which included both individual and corporate debtors.

The appellant objected to sharing corporate assets with creditors of only the individual debtors.

The Court of Appeal upheld the motion judge's decision, finding no error in piercing the corporate veil to pool assets, as the corporate assets were derived from fraudulent transfers by the individual debtors to defeat creditors.

The court also found no procedural unfairness in determining the issue on a motion for directions and upheld the disallowance of certain interest charges claimed by the appellant.

The appellant, a U.S. law firm, appealed an order declaring mortgages it held over six Ontario properties, granted by its clients (the Hutchens) to secure legal fees, void ab initio as fraudulent conveyances under the Fraudulent Conveyances Act.

The Court of Appeal dismissed the appeal, affirming the motion judge's findings that the judgment creditors had standing, were "creditors or others" under the Act, and that the mortgages were not granted in good faith, thus not falling under the statutory exceptions.

The court also rejected arguments of res judicata or abuse of process.

The Applicants, judgment creditors of the Respondents (Hutchens), brought a motion seeking a declaration that $2M mortgages registered by Adroit Advocates LLC against the Hutchens' Ontario properties were void ab initio.

The mortgages were registered shortly after a significant US judgment was rendered against the Hutchens for mortgage financing fraud.

The Applicants argued that the mortgages were intended to defeat creditors and were given for insufficient consideration.

Adroit, the responding non-party, challenged the Applicants' standing and asserted the mortgages were granted in good faith for good consideration.

The court found the Applicants had standing and, applying the Fraudulent Conveyances Act and the Assignments and Preferences Act, determined that the mortgages were intended to give Adroit an unjust preference over other creditors and were given for inadequate consideration, primarily consisting of future, unbilled legal fees.

The motion was granted, declaring the mortgages void and directing their discharge.

Honeycomb Hospitality Inc. sought a stay pending its application for leave to appeal a Divisional Court decision that affirmed summary judgment for wrongful dismissal and damages in favour of the employee.

The motion judge applied the three-part test for a stay, finding that while a serious issue was raised regarding pregnancy's role in Bardal factors, the employer failed to demonstrate irreparable harm if required to pay the judgment and costs into trust.

The balance of convenience also favored denying the stay.

The appellants appealed a decision concerning damages from an interim injunction they obtained against the respondents and compensation for work the respondents were obliged to complete under a 2010 court order.

The Court of Appeal dismissed the appeal, upholding the trial judge's assessment of damages, which included interest rate differentials and lender's amendment fees due to the injunction, and the compensation for expenditures related to the 2010 order.

The court found no palpable and overriding error in the trial judge's factual findings and deferred to his interpretation of the 2010 order.

This decision addresses the costs of a wrongful dismissal action following a successful summary judgment motion where the plaintiff was awarded five months' notice.

The plaintiff sought partial indemnity costs of $47,519.40, while the defendant sought costs related to abandoned claims for punitive, aggravated, moral, and Human Rights Code damages.

The court awarded the plaintiff $22,000 in all-inclusive costs, finding that while the recovery was within Small Claims Court limits, commencing the action in Superior Court was initially appropriate due to the complexity of claims and defences.

The court declined to make a cross-award for costs related to abandoned claims, emphasizing that abandoning claims can be a reasonable litigation step and that proportionality and fairness are key considerations in costs awards.

The plaintiff, Sarah Nahum, was terminated without cause by the defendant, Honeycomb Hospitality Inc., after four and a half months of employment while five months pregnant.

On a summary judgment motion, the court addressed the reasonable notice period, specifically considering the impact of pregnancy on its calculation.

The court found pregnancy to be a Bardal-type factor affecting employability and awarded the plaintiff five months' notice, resulting in damages of $34,194.87.

This case concerns an atypical receivership where the court-appointed receiver sought approval for its activities, including a cash collateral arrangement with Tarion Warranty Corporation and the payment of unsecured creditors' proven claims.

The debtor and a related party objected, arguing that the unsecured claims were statute-barred under the Limitations Act, 2002, and that Tarion was not an unsecured creditor or not entitled to full indemnification for legal fees.

The court approved the receiver's reports, finding that the Limitations Act, 2002 bars the remedy of commencing a proceeding but does not extinguish the underlying debt.

It held that a court-authorized claims process in a receivership is a separate remedy not barred by the Act.

The court also approved the cash collateral arrangement and Tarion's claim for indemnified legal fees, confirming its status as an unsecured creditor.

The plaintiffs, a hair salon tenant and its principals, brought a motion for injunctive relief and access to commercial leased premises after the landlord locked them out due to alleged rent arrears and property damage concerns during the COVID-19 pandemic.

The landlord had purported to exercise a right of distress for an inflated amount including by-law infraction costs.

The court found the landlord's actions constituted a forfeiture of the lease and an illegal distraint.

The court granted the plaintiffs' requested access to retrieve chattels and ordered the landlord to pay substantial indemnity costs due to its "reprehensible, scandalous or outrageous conduct" in holding the chattels hostage during a vulnerable time.

This endorsement addresses the quantum of costs following the Applicants' success in an application to reduce a mortgage from over $5,000,000 to $10,000.

The Applicants sought $139,642.93 on a partial indemnity basis, while the Respondent proposed a maximum of $70,000.

The court considered the high stakes, the urgency of the matter exacerbated by COVID-19, and the Respondent's delaying tactics.

Despite finding the Applicants' bill somewhat high due to senior counsel's involvement, the court awarded costs of $100,000.00 inclusive of disbursements and taxes to the Applicants, emphasizing their full success and the Respondent's conduct.

The plaintiff, Janeric Engineering Inc., sought summary judgment for $400,000 plus interest based on a promissory note given by the defendant, 2496110 Ontario Inc., in the context of an asset purchase agreement.

The defendant argued that conditions precedent for payment were not met and asserted a right of setoff.

The court granted summary judgment, finding the promissory note enforceable as amended by an addendum, dismissing the defendant's arguments regarding banking documents and the right of equitable setoff against a promissory note.

The court also denied a stay of judgment as no counterclaim was filed.

The Estate Trustee During Litigation (ETDL) for the estate of Elias Gefen brought a motion seeking payment of his significant fees and disbursements from disputed estate assets, a priority charge on these assets, and permission for interim payments.

The motion was supported by Harry Gefen and the estate of Yehuda Gefen, and opposed by Henia Gefen, Harvey Gefen, and a non-party co-tenant.

The court found that the ETDL was entitled to payment from the 'Property Interest' (disputed assets) and a charge on it, interpreting the original appointment order broadly to include assets with contingent estate interests.

The court denied the ETDL's request to further mortgage the properties to raise funds, citing potential adverse effects on non-parties.

The ETDL was granted the right to make interim payments from available distributions, subject to a final passing of accounts.

Costs were awarded against the opposing parties personally and the balance from the Estate.

The appellants appealed an order enforcing a settlement agreement.

The respondents had commenced an action claiming specific performance of an agreement to purchase shares and damages for misrepresentation, alleging they had invested $283,500 to purchase shares that were never delivered.

The appellants made a written settlement offer on September 9, 2016 for $428,537.

The respondents countered on October 5, 2016 with an offer for $900,000.

On November 23, 2016, the appellants' solicitor wrote indicating the shares had been registered in the respondents' names.

On December 22, 2016, the respondents accepted the September 9, 2016 offer.

The motion judge found a settlement had been reached and enforced it.

The appellants appealed, arguing enforcement would result in double recovery.

The Court of Appeal dismissed the appeal, finding the appellants failed to lead evidence establishing double recovery.

The plaintiffs moved to enforce a settlement agreement for $428,537 against the defendants.

The defendants argued their offer was terminated by a counter-offer and that enforcement would be unjust due to alleged double recovery from both shares and the monetary settlement.

The court found a binding settlement under Rule 49.07(2) of the Rules of Civil Procedure, noting that a counter-offer does not automatically terminate an original offer under the Rules.

The court also determined that the defendants failed to demonstrate a real risk of clear injustice to warrant declining enforcement, as the plaintiffs' claims extended beyond share ownership to substantial damages.

The motion to enforce the settlement was granted, and the plaintiffs were awarded $6000 in partial indemnity costs.

The plaintiffs sought damages from the vendor for alleged deficiencies in a renovated home they purchased.

The defendant vendor, who was self-represented and failed to appear at trial, was sued for costs incurred to rectify the issues.

The court examined whether alleged oral agreements and various deficiencies constituted warranties that survived the completion of the Agreement of Purchase and Sale (APS) or were merely conditions of closing.

The court found that most claims related to conditions of completion and did not survive closing, except for specific warranties regarding chattels and an undertaking for a $10,000 holdback.

The plaintiffs were awarded the $10,000 holdback and a limited amount for specific breaches of surviving warranties, totaling $3,563.31 plus pre-judgment interest.

The plaintiff, Muskoka Minerals & Mining Inc., supplied sand for indoor volleyball courts and was not paid in full.

It registered a lien and sued the property owner, Gorge Holdings Inc., and the operators.

The court found Gorge Holdings Inc. contractually liable because its employee signed the supply agreement as a purchaser, actively supporting the venture.

Gorge Holdings Inc. was also deemed a "statutory owner" under the Construction Lien Act due to its interest in the premises, request for improvement, and consent/credit provided.

Judgment was granted against Gorge Holdings Inc. for the outstanding amount plus interest, and the lien was upheld.