Brian Kolenda

This endorsement addresses the costs arising from a dismissed motion to stay an action.

The defendants, as moving parties, sought to stay the action, but their motion was dismissed with costs to the plaintiff.

The parties failed to agree on the scale and quantum of costs.

The court found the plaintiff's pre-motion offer to settle the motion was reasonable and should have been accepted, while the defendants' post-motion offer was not severable and included extraneous terms.

Consequently, the court awarded the plaintiff costs fixed at $17,800, calculated on a blended partial and substantial indemnity basis.

The defendants moved to stay an action brought by the plaintiff in Ontario, arguing that Ontario lacked jurisdiction simpliciter or was not the convenient forum, proposing Andorra as the appropriate venue.

The dispute concerned entitlement to €400,000 held in escrow under an Escrow Agreement, which contained a non-exclusive choice of law and forum selection clause in favour of Ontario.

The court found the essential nature of the lawsuit was rooted in the Escrow Agreement, which dictated Ontario law and forum.

The court dismissed the defendants' motion, finding no exceptional circumstances to disregard the forum selection clause and that Ontario was the more convenient forum.

The plaintiff university brought an action against its former Assistant Vice-President and Director of Maintenance, alleging they orchestrated multiple fraudulent schemes, including false invoicing, kickbacks, and using university resources for personal residence improvements.

The court found the defendants liable for fraud and breach of fiduciary duty, ordering them to pay damages.

The court also voided the transfer of the primary defendant's properties to his family members as fraudulent conveyances and rescinded his severance agreement due to material non-disclosure of his fraudulent activities.

The plaintiff was defrauded by its employee, who used some of the stolen funds to pay criminal restitution to his former employer, whom he had previously defrauded.

The plaintiff sued the former employer and its principal for knowing receipt and unjust enrichment, seeking to trace and recover the funds.

The court dismissed the action, finding that the plaintiff could not reliably trace the funds, the defendants lacked constructive knowledge of the second fraud when they received the payments, and there was a valid juristic reason for the defendants' enrichment.

The defendants moved to stay or dismiss an Ontario action for lack of jurisdiction and on the basis of forum non conveniens.

The dispute concerned whether a letter constituted a binding agreement requiring the transfer of wireless spectrum licences to the plaintiff.

The court held that Ontario had jurisdiction simpliciter because there was a good arguable case that the contract was made in Ontario and that the action concerned licences constituting personal property located in Ontario.

The defendants failed to rebut the presumptive connecting factors or demonstrate that California was clearly the more appropriate forum.

The motion to stay or dismiss was therefore refused.

The respondent automobile carrier brought an application seeking a declaration that the applicant automobile manufacturer breached a contract governing delivery routes for vehicle shipments.

The applicant brought a counter‑motion seeking to convert the application into an action on the basis that the dispute raised significant factual controversies, including issues of economic duress, contractual interpretation, and the doctrine of good faith in requirements contracts.

The court held that the dispute involved contested facts and credibility issues that could not properly be resolved on an application record.

The court further noted that the law relating to good faith and requirements contracts was developing and that a fuller evidentiary record was necessary.

The application was therefore converted into an action.