Brian Richard Whitwham

This costs endorsement addresses the outcome of an interlocutory injunction motion brought by The Matter Corporation against Southside Construction Management Limited and others.

The court reviews the partial success of the plaintiff, the divided success of the parties, and the appropriate approach to costs in the context of interim injunctions.

The court ultimately fixes the plaintiff’s partial indemnity costs at $81,074.85, to be payable in the cause, after deducting amounts for unsuccessful relief and for work that will be used in discovery.

The Matter Corporation ("Matter Corp.") sought an interlocutory injunction against Southside Construction Management Limited ("Southside"), Vito Frijia, and Wonderland Power Centre Inc. ("Trustee Corporation") regarding a joint venture.

Matter Corp., a 50% beneficial owner, alleged Southside, the managing co-owner, failed to provide disclosure, consult, and seek approval for new development, working capital commitments, and future borrowing after the death of Matter Corp.'s principal.

The court applied the "strong prima facie case" standard for mandatory injunctions.

The court granted the Production Order for existing information and records and the New Development Order requiring Southside's consultation and consent for future development of new commercial and residential space on the Joint Venture Properties.

However, the court dismissed the Production Order for documents that do not exist, the New Development Order for working capital commitments related to existing commercial space, and the Borrowing Order, finding Matter Corp. did not meet the high merits standard for these aspects.

The court found irreparable harm for new development due to irreversible commitments and that the balance of convenience favored Matter Corp. for new development, but Southside for existing space leasing and borrowing.

This is an appeal from a judgment rescinding a settlement agreement.

The respondent, Irene Deschenes, had settled a sexual assault claim against the Roman Catholic Episcopal Corporation of the Diocese of London in Ontario (the "Diocese") in 2000.

Subsequently, it was discovered that the Diocese had misrepresented its knowledge of the priest's prior abuse, as police statements from 1962 indicating earlier assaults came to light.

The motion judge rescinded the settlement based on innocent misrepresentation.

The appellants (Diocese and others) appealed, arguing the motion judge erred in applying the law of unilateral mistake, assessing materiality, and failing to uphold the finality of settlements.

The Court of Appeal dismissed the appeal, affirming that the settlement was properly rescinded for innocent misrepresentation, finding the misrepresentation material and relied upon, and that the interests of fairness and justice outweighed the principle of settlement finality in these circumstances.

The appellant, a fitness club operator, appealed a judgment declaring it had lost its right to extend its commercial lease with the respondent landlord.

The application judge found the appellant had breached the lease by: (1) operating a fitness club at Park Road in violation of geographic non-compete restrictions; and (2) failing to calculate and report gross revenue in accordance with lease provisions for percentage rental payments.

The appellant was given notice to cure but failed to do so.

The Court of Appeal dismissed the appeal, finding no overriding or palpable errors in the application judge's interpretation of the lease, rejection of waiver and promissory estoppel defences, and refusal to grant relief from forfeiture.

This is a costs endorsement following an appeal where the Court of Appeal set aside the order of the application judge dated October 5, 2015.

The parties had contested two issues on the application with divided success.

The application judge had reduced the respondent's costs from an agreed amount of $42,500 to $30,000 due to partial success.

On appeal, the Court of Appeal determined that the appellant succeeded on both issues argued at the application and therefore was entitled to the full agreed costs amount of $42,500 for the application below, in addition to $20,000 for the costs of the appeal.

The appellant appealed from a Superior Court decision that found a commercial lease for fitness club premises did not include the basement, despite the tenant's long-standing use of it.

The Court of Appeal reversed, holding that when the lease is interpreted in light of all surrounding circumstances—particularly email correspondence between the parties' lawyers—the parties clearly intended to lease the entire premises, including the basement, on a lump sum basis.

The court found the application judge erred in law by failing to consider all relevant circumstances, despite acknowledging the need to do so.