Brian P. Bellmore

The respondent sought leave to appeal two costs decisions.

The motion judge had declined to award costs against the applicant, who withdrew her spousal support application, due to her inability to pay.

The motion judge also declined to order costs personally against the applicant's former counsel, finding the application was not frivolous or vexatious.

The Divisional Court dismissed the motion for leave to appeal, finding the issues did not meet the high threshold for leave under Rule 62.02 and the motion judge's discretionary decisions were entitled to deference.

This was a motion for leave to appeal two costs decisions.

The appellant sought leave to appeal the motion judge's decision not to award costs against the applicant personally, citing her financial inability to pay, and not to award costs against her former counsel for allegedly initiating a frivolous application or being in a conflict of interest.

The court denied leave, finding that while there might be doubt about the correctness of denying costs based solely on inability to pay, the matter was not of sufficient importance given the applicant's circumstances.

The court also deferred to the motion judge's findings that the application was not frivolous or vexatious and that counsel was not in a conflict of interest warranting personal costs.

The moving party, a former CFO of a company undergoing CCAA restructuring, sought a declaration that a court-approved settlement and release barred the Chartered Professional Accountants of Ontario (CPAO) from commencing disciplinary proceedings against him.

The court dismissed the motion, finding that the CPAO's regulatory proceedings regarding professional misconduct did not constitute a 'claim' under the CCAA, nor were they claims against him in his capacity as a director or officer.

Furthermore, the disciplinary proceedings did not fall within the definition of released claims in the settlement order, and the CPAO was not bound by the order as it had not received notice.

Limited partners in a real estate partnership commenced an action alleging misconduct by accountants, a lawyer, and others in relation to unauthorized corporate changes and mortgages affecting partnership property.

After the action had been set down for trial, certain defendants indicated they would bring motions for summary judgment arguing the plaintiffs lacked standing because the alleged losses were those of the partnership.

The plaintiffs sought leave under Rule 48.04(1) of the Rules of Civil Procedure to bring a cross‑motion for summary judgment in response.

The court considered modern principles favouring broad access to summary judgment following Hryniak v. Mauldin and whether permitting the motion would promote a proportionate and efficient resolution.

Given that the defendants’ proposed motions could require extensive evidentiary responses and potentially raise broader issues, the court concluded that allowing the plaintiffs to bring their own motion could streamline the litigation.

Leave was therefore granted.

The applicant sought costs of $162,537.44 on a partial indemnity basis following a successful application for judicial review of a professional discipline decision.

The respondent argued the quantum should be $40,000.

The court applied the principle of proportionality and the factors in Rule 57.01, noting the applicant's counsel was already familiar with the case from prior proceedings.

Costs were fixed at $75,000 inclusive of GST and disbursements.

The applicants, three chartered accountants, sought judicial review of decisions by the Discipline Committee and Appeal Committee of the Institute of Chartered Accountants of Ontario finding them guilty of professional misconduct in relation to the 1997 audit of Livent Inc. The Divisional Court granted the applications in part.

The Court quashed the convictions on charges 1(i) and 1(iii) due to a breach of procedural fairness, as the applicants were convicted based on their treatment of a 'Put' agreement which was not part of the charges or the case they had to meet.

The Court also quashed the convictions on charges 1(iv) and 2(viii) as unreasonable.

However, the Court upheld the convictions on charges 2(ii), (iii), (iv), and (v), finding it was reasonable for the committees to conclude the auditors failed to exercise appropriate professional scepticism.

Finally, the Court quashed the costs award, holding that the Discipline Committee lacked jurisdiction to order costs because its by-law conflicted with the requirements of the Statutory Powers Procedure Act.

The Toronto Police Association brought an application seeking a declaration that a binding agreement existed to resolve disciplinary charges against officers who wore uniforms to a union rally.

The appellants moved to dismiss the application for lack of jurisdiction, arguing the matter fell under the Police Services Act.

The motion judge found the dispute was contractual and within the court's jurisdiction.

On appeal, the Court of Appeal held that the essential character of the dispute involved police discipline and the consequences of that discipline on the officers' careers.

The court concluded it lacked jurisdiction, allowed the appeal, and dismissed the application.

The respondent, an experienced in-house corporate counsel, was terminated without cause after 18 months of employment.

Upon termination, he was offered a severance package of three months' salary in exchange for signing a release.

He signed the release immediately and received the funds.

He later sued for wrongful dismissal, arguing the release was unconscionable.

The trial judge set aside the release based on a breach of good faith.

The Court of Appeal allowed the employer's appeal, finding the trial judge erred in applying the law of bad faith discharge instead of unconscionability.

Applying the four-part test for unconscionability, the Court held the transaction was not grossly unfair, the respondent did not lack legal advice, there was no overwhelming imbalance in bargaining power, and the employer did not take advantage of his vulnerability.

The action was dismissed.

The appellants appealed the dismissal of their action for specific performance of a handwritten agreement of purchase and sale for a property.

The trial judge had found that the parties were not ad idem and declined to enforce the agreement, despite finding it contained all essential terms and was not unconscionable.

The Court of Appeal allowed the appeal, holding that the executed written agreement was a clear manifestation of mutual assent and that the vendor's uncommunicated reservations did not support a defence of mistake.

Specific performance was ordered.

The appellant purchaser appealed a decision finding that a real estate transaction was for a block parcel of land rather than on a square foot basis.

The purchaser argued that the real estate agent misrepresented the land size.

The Divisional Court dismissed the appeal, finding that the purchaser was provided a site plan with precise measurements prior to closing and could not have been misled.

Furthermore, the Agreement of Purchase and Sale contained an entire agreement clause, and the purchaser did not make square footage a term of the agreement.

The appellant appealed a judgment of the Superior Court of Justice.

On consent of the parties, the Court of Appeal for Ontario dismissed the appeal without costs.

The appellant sought solicitor-and-client costs pursuant to Rule 49.10 based on an offer to settle.

The respondent argued the offer was ambiguous regarding costs and incapable of acceptance, and that the appellant failed to obtain the relief sought.

The Court of Appeal applied recent jurisprudence holding that uncertainty in an offer is only relevant to whether the party met its burden of proof under Rule 49.10.

The court found the appellant met its burden and awarded party-and-party costs to the date of the offer and solicitor-and-client costs thereafter.

The appellant corporation entered into a personal services contract with the respondent company.

The contract, drafted by the appellant's principal, contained a termination clause providing for compensation if the respondent unilaterally terminated the agreement.

The respondent's principal signed the contract without reading the termination clause.

The respondent later unilaterally terminated the agreement.

The trial judge held that the appellant's principal owed a duty to bring the termination clause to the respondent's attention and rectified the contract by striking the clause.

The Court of Appeal allowed the appeal, finding no such duty existed as the respondent's principal was an experienced businessman who was advised to read the contract.

The Court also held that rectification was inapplicable as there was no mutual intention regarding unilateral termination.

The appellants appealed a decision certifying a class action regarding the Bre-X gold mine fraud.

The motion judge had restricted the common issues to conspiracy and fraud, declining to certify negligent misrepresentation as a common issue, and limited the class to shareholders who held shares on the date the possible fraud was publicly disclosed.

The Divisional Court dismissed the appeal, agreeing that negligent misrepresentation claims require individual inquiries into reliance and causation, making a class action not the preferable procedure for those claims.

The court also upheld the temporal restriction on the class, as shareholders who sold before the disclosure date could not have suffered losses caused by the misrepresentations.

The applicant union applied for certification to displace the incumbent union as the bargaining agent for a comprehensive unit of outside workers.

After the applicant won a pre-hearing representation vote, a group of skilled tradespeople objected, seeking to be carved out into a separate bargaining unit represented by the incumbent union.

The Board dismissed the request, finding that the existing comprehensive unit had a long history of successful collective bargaining and that fragmenting it was not justified.

A certificate was issued to the applicant for the comprehensive unit.