Brian D. Belmont

This is a costs decision in an estate administration dispute between two co-estate trustees.

The applicant sought costs of approximately $125,933 on a substantial indemnity basis (or $87,728 on a partial indemnity basis) following a successful application to compel the respondent to sign documents necessary for estate administration.

The respondent argued the application was unnecessary and that all parties should bear their own costs.

The court awarded costs of $16,000 all-inclusive on a partial indemnity basis, finding that while the applicant acted reasonably in bringing the application, the claimed costs were disproportionate to the modest estate value and the applicant's own conduct in refusing to fund estate counsel contributed to the escalation of legal expenses.

The appellants appealed an order for summary judgment in a mortgage action.

The respondents on appeal moved for an order dismissing the appeal based on the appellants' failure to satisfy a prior court order to pay outstanding costs totaling $46,280.

The Court of Appeal dismissed the appeal, finding that the appellants had not complied with the previous order and that their arguments against dismissal, including claims of unfairness and inability to pay, lacked merit.

This addendum was issued by the Court of Appeal for Ontario to clarify the total outstanding costs owed by the responding parties to the moving parties, Harsha Rathod and Bluekat Capital Corp. It consolidates costs orders from previous decisions by Roberts J.A. and a three-judge panel, specifying the combined amounts due to each moving party.

This motion was brought by the moving parties seeking to dismiss the responding parties' appeal due to unpaid costs orders, or alternatively, to compel payment of these orders by a deadline, or to require further security for costs.

The court, presided over by a single judge, determined it lacked jurisdiction to dismiss the appeal.

However, it ordered the responding parties to pay the outstanding costs orders by August 28, 2024, clarifying that costs orders are generally payable within 30 days even if no specific deadline is stated.

The appeal is scheduled to be heard on September 24, 2024, regardless of any further motion to dismiss.

Ijeoma Chijindu moved to set aside an order from Justice Lois B. Roberts that required her and other appellants to post security for costs of $35,605.12.

The motion judge had found that the criteria for security for costs under r. 61.06(1)(a) and (c) of the Rules of Civil Procedure were met, noting the appellants' inability to pay and the low prospect of success of their appeal.

The Court of Appeal dismissed Ms. Chijindu's motion, finding no error in the motion judge's determination and upholding the order for security for costs.

The appellants were ordered to pay all-inclusive costs to the respondents.

The applicant, a co-beneficiary and registered owner of an estate property, sought exclusive possession and termination of the respondent's occupancy, who had been living rent-free for 20 years.

The respondent, another beneficiary, resisted vacating, citing a purported wish of the deceased mother and claiming significant renovation expenses.

The court, noting the respondent's history of delays and non-compliance with previous orders, granted the applicant exclusive possession and an order for the respondent to vacate within 30 or 60 days, contingent on payment of outstanding costs.

The property is to be sold, and proceeds will be subject to a mutual accounting.

The moving parties sought security for costs of an appeal arising from mortgage disputes.

The responding parties (appellants) had defaulted on mortgages, and proceeds from power of sale were paid into court.

The motion judge ordered payment of these funds to the moving parties, which the responding parties appealed.

The Court of Appeal granted security for costs under Rule 61.06(1)(a) and (c), finding the appeal frivolous and vexatious with a low prospect of success, and that the appellants had insufficient assets or would be difficult to collect from.

The plaintiffs brought an action seeking a "corporate divorce" and remedies for oppression under s. 248 of the Business Corporations Act against the defendant, a 50% shareholder and director of the corporate plaintiff.

The defendant had abandoned his role in the business but continued to make unauthorized withdrawals from the corporate accounts for personal expenses, while also failing to pay personal taxes which resulted in CRA demands against the corporation.

The court found the defendant's conduct to be oppressive and ordered the corporation to purchase his shares for cancellation.

The court valued the defendant's 50% interest at $217,500 based on a current valuation without a minority discount, and deducted $50,000 for specific unauthorized withdrawals and tax payments made on his behalf, resulting in a final buyout price of $167,500.

The court also dismissed the defendant's late request to amend his pleadings to raise a limitations defence due to prejudice to the plaintiffs.

The plaintiff sought leave to amend its statement of claim to correct misnomers and substitute "Doe" defendants with named individuals, alleging fraud and misappropriation.

The motion was unopposed for five proposed defendants and granted.

For the five vigorously opposed proposed defendants, the court applied Rules 5.04 and 26.01, considering prejudice and the "litigating finger" test.

The court found that the claims against Parray and Khanlarov were too vague and outside the relevant time period, and against Kovalov, the "litigating finger" was not sufficiently pointed, and potential prejudice was noted.

Therefore, the motion to substitute Parray, Khanlarov, and Kovalov was dismissed.

However, the motion to substitute Halatullah and Kolesnik was granted, as the claims against them were sufficiently particularized or their first name matched a "Doe" defendant, and any prejudice was deemed inherent to litigation.

The defendant moved for an order setting aside his noting in default.

The court considered the factors for setting aside default, including the defendant's explanation for delay, the substantial value of the claim, and the lack of prejudice to the plaintiffs.

The motion was granted, and the noting in default was set aside on terms, allowing the defendant to file a statement of defence and setting timelines for document exchange.

The applicant sought to amend a previous judgment to correct the commencement date for prejudgment interest on a recognized Indian judgment.

The court granted the amendment, changing the interest start date from April 20, 2015, to April 8, 2013, as per the original Indian judgment.

The applicant, Corona Steel Industry Private Limited, sought substantial indemnity costs from the respondent, Integrity Worldwide Inc., following its successful application to recognize and enforce an Indian judgment.

Corona argued for substantial indemnity due to the respondent's litigation conduct and based on an offer to settle.

The court found no basis for substantial indemnity due to the respondent's conduct, as their actions were within their rights to challenge the application.

Furthermore, the offer to settle did not qualify for Rule 49.10(1) consequences because it had effectively expired before the hearing.

Consequently, the court awarded costs on a partial indemnity scale, reducing the claimed hours due to Corona's initial failure to provide evidence on Indian law, which caused an adjournment.

The applicant sought recognition and enforcement of a foreign judgment obtained in India against the respondent for unpaid goods.

The respondent opposed, arguing the expert evidence on Indian law was inadmissible due to bias, the Indian court lacked jurisdiction, the claim was statute-barred, and there was a denial of natural justice.

The court admitted the expert evidence, found a real and substantial connection to India, held the limitation period did not begin until the foreign appeal period expired, and found no denial of natural justice.

The application was granted and the Indian judgment was recognized.

The Court of Appeal reversed the trial judge's finding that the purchaser (241 Ontario) had actual notice of a defect in the power of sale process.

The trial judge had conflated actual knowledge with constructive knowledge, finding that receipt of information suggesting the need for inquiry constituted actual notice.

The appellate court clarified that actual notice requires actual knowledge of the defect itself, not merely knowledge of facts that might prompt inquiry.

The court held that 241 Ontario was a bona fide purchaser for value without notice and could rely on the protections of the Land Titles Act.

The court also found that sections 35 and 36 of the Mortgages Act do not limit the right to rely on registration under the Land Titles Act, and that these provisions provide complementary methods of protecting bona fide purchasers.

The post-sale mortgagees' interests were upheld, and Ginkgo's mortgage was found to be valid.

Over Z LLC brought a motion for contempt against N-Krypt International Corp. for failing to comply with a consent order requiring the production of audited financial statements, an accounting of investment, and other documents by specific deadlines.

N-Krypt admitted non-compliance but argued good faith, citing auditor delays due to tax season and an interpretation dispute regarding the accounting.

The court, applying the principles from Carey v. Laiken, found that N-Krypt acted in good faith and exercised its discretion to dismiss the contempt motion.

N-Krypt's cross-motion for directions to extend deadlines and schedule a new shareholders' meeting was allowed.

Costs were deferred pending N-Krypt's compliance with the new order.

The plaintiff landlord sued the tenant and guarantor for unpaid rent after the defendants vacated leased commercial premises before the lease term expired.

The defendants alleged they were induced to enter the lease by negligent misrepresentations regarding the presence of physicians in the building and the expected volume of patient referrals.

Applying the principles for negligent misrepresentation from Queen v. Cognos, the court held that no actionable misrepresentation was established and that the alleged statements were either unproven, not relied upon, or constituted expectations rather than guarantees.

The court also noted that the written lease contained an entire agreement clause negating extraneous representations.

The defendants voluntarily assumed the business risk and the landlord had taken reasonable steps to mitigate damages.

Judgment was granted for the plaintiff for the outstanding rent and interest.