Bruce D. Marks

The applicant solicitor sought directions regarding the continuation of a solicitor-client assessment of accounts, which had been postponed by an Assessment Officer due to an automatic stay under the Bankruptcy and Insolvency Act against some respondents.

The court clarified the effect of an appeal on the bankruptcy stay and, exercising its discretion, lifted the stay to permit the assessment to proceed.

The court also provided directions to the Assessment Officer regarding the exclusion of observers and the disregard of unsworn ex parte communications.

This is a costs endorsement following the dismissal of an appeal by the Court of Appeal for Ontario.

The respondents sought full indemnity costs, citing contractual language in mortgage actions and the appellants' "reprehensible conduct" and "scurrilous accusations." The appellants argued the claim was excessive and duplicative.

The court, while acknowledging contractual full indemnity, exercised its overriding discretion due to the complex and overly litigious nature of the case, finding both parties contributed to procedural skirmishes.

The court fixed costs payable by the appellants to the respondents at $170,000, all-inclusive, a reduction from the $190,372 claimed.

The appellants (Beach parties) appealed summary judgments granted in favour of the respondents (Magenta parties) in three mortgage enforcement actions, and the motion judge's refusal to stay enforcement of those judgments.

The Court of Appeal dismissed the appeals, finding no error in the motion judge's decision to grant summary judgment or to decline a stay.

The court clarified and applied a restated multi-factorial approach for stays under Rule 20.08 of the Rules of Civil Procedure, considering the merits of the counterclaim, the relationship between claims, the defendant's litigation conduct, and the balance of prejudice.

The Appellants sought two orders from the Court of Appeal: an extension of time to file a Supplementary Notice of Appeal to clarify that they were appealing the underlying summary judgment on both grounds raised below, and permission to file fresh evidence.

The court granted the extension for the Supplementary Notice of Appeal, finding that the Appellants had intended to appeal both issues from the outset and that it was in the interest of justice to permit this clarification.

However, the motion to adduce fresh evidence was denied, as the evidence was not new and could have been adduced at the original summary judgment motion.

The plaintiff, Farley Manufacturing Inc., brought a motion for an order under Rule 32 of the Rules of Civil Procedure to inspect the defendant, Oz Optics Ltd.'s, dome facility by two experts and senior representatives.

Oz Optics objected to one expert's qualification and the presence of plaintiff's representatives.

Farley Manufacturing also sought an order for mediation within 90 days, which Oz Optics opposed, arguing it should occur after expert reports.

The court granted the inspection order, finding it "useful" and "probative," and allowed the plaintiff's chosen experts and representatives to attend.

The court also ordered Oz Optics to pay the travel and accommodation costs for one expert due to Oz Optics' unreasonable conduct in obstructing the inspection.

Mediation was ordered to be held within 90 days.

The moving parties sought directions regarding compliance with a prior court order addressing undertakings, advisements, and objections arising from examinations for discovery.

The dispute concerned whether the defendants had adequately addressed issues relating to corporate ownership and control, particularly whether a named entity was a subsidiary of other defendants.

The court accepted admissions provided by defence counsel confirming the relevant corporate relationships and held that these admissions satisfied the earlier order’s requirements.

The admissions were permitted to be entered into evidence to prove the truth of their contents.

The moving parties were awarded modest costs payable by certain defendants.