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 plaintiff brought a motion for summary judgment on 34 promissory notes totaling $998,181.23 and sought to dismiss the defendants' counterclaim.

The parties filed voluminous records totaling over 2,000 pages.

The court dismissed the motion, finding that the sheer volume of evidence made it impossible to determine if there was a genuine issue for trial within the scheduled two-and-a-half-hour motion, and concluded the matter was not suitable for summary judgment.

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 moving parties brought a motion for leave to appeal an adjournment order.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs fixed on a substantial indemnity basis.

The moving parties brought a motion for leave to appeal from a benefit permit order.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs of $7,418 to the responding parties.

The moving parties sought leave to appeal from a power of attorney order.

The Divisional Court dismissed the motion for leave to appeal.

The moving parties were ordered to pay costs of $8,640 to the responding parties.

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 defendants brought a motion for an interlocutory injunction and declaratory relief to prevent the plaintiff from interfering with land development projects governed by Joint Venture Agreements.

The plaintiff, whose principal had been terminated as project manager, had been contacting third parties and refusing to execute necessary documents, jeopardizing the final plan approval of the Johnson Point project.

The court found that the defendants had final decision-making authority under the agreements and met the test for a prohibitory interlocutory injunction.

The court granted the requested relief, limiting it to the Johnson Point project, and ordered the plaintiff not to cancel a related environmental permit.

The plaintiff brought a motion seeking an order to transfer ownership of an Endangered Species Act benefit permit to the defendants.

The defendants opposed the motion, arguing the plaintiff failed to comply with a prior security for costs order and failed to serve the Ministry of Environment, Conservation and Parks.

The court granted the plaintiff leave to bring the motion despite a minor delay in paying costs, but dismissed the motion on the basis that the court lacked jurisdiction to transfer the permit without notice to the Ministry.

The respondents moved for an order under r. 39.02(2) of the Rules of Civil Procedure granting them leave to examine the appellants' former lawyer regarding communications relating to the appeals.

The appellants had sought leave to file Supplementary Notices of Appeal, arguing the current appeals did not reflect their instructions to their former lawyers.

The Court of Appeal granted the motion, finding the instructions given to counsel were highly relevant to the appellants' motion and the respondents had moved promptly.

Following the consented annulment of the debtor's bankruptcy proposal, the moving party sought solicitor and client costs of over $62,000.

The court rejected the application of Rules 38.08(1) and 23.05(1), finding that section 197 of the Bankruptcy and Insolvency Act governed the costs motion.

Applying the factors in Rule 57.01(1), the court found the debtor's conduct in filing the proposal was ill-advised but not reprehensible enough to warrant solicitor and client costs.

Finding the claimed hours excessive and unreasonable, the court fixed costs at $8,000 inclusive of HST.

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 appellant appealed an order refusing to set aside a default judgment on a mortgage and a promissory note.

The Court of Appeal upheld the mortgage enforcement but referred a $5,000 default fee to a Master.

The court set aside the default judgment on the promissory note, directing that it be pursued in Small Claims Court.

The appellant was granted a one-month stay of enforcement to allow for refinancing.

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.

The appellants appealed the trial judge's decision allowing the respondents' claims for the balance of a vendor take-back loan and wrongful dismissal, and dismissing the appellants' action for breach of contract and fiduciary duty arising from a complex business sale.

The Court of Appeal upheld the trial judge's interpretation of the contractual documents, finding that the non-competition covenant had to be read in conjunction with a mutual undertaking that granted a right of first refusal for distribution contracts.

The Court also agreed that the respondent did not owe a fiduciary duty to the appellants, as the parties were at arm's length and of equal strength.

The appeals were dismissed.

The appellant insurer appealed a jury verdict awarding the respondent insured disability benefits, aggravated damages, and punitive damages following the denial of a disability claim.

The Court of Appeal allowed the appeal and directed a new trial, finding fatal defects in the trial judge's charge to the jury.

Specifically, the charge on aggravated and punitive damages was wholly inadequate, failing to explain the legal requirements or direct the jury to relevant evidence.

Furthermore, the trial judge erred in law by instructing the jury that a six-year limitation period applied for breach of contract rather than the one-year limitation period mandated by the insurance policy, and failed to instruct the jury on the discoverability principle.