Charles Haworth

This endorsement addresses costs following a successful motion by the defendants (Smiths) to set aside a noting in default.

Both the defendants, who were successful on the underlying motion, and the plaintiff sought costs.

The court clarified that there is no general rule precluding a party seeking an indulgence from being awarded costs, emphasizing that costs decisions are discretionary.

Despite the Smiths' success on the underlying motion, the court found their lack of diligence, failure to comply with court orders, and deficient materials weighed against a costs award.

Similarly, the plaintiff was denied costs due to their lack of diligence in pursuing the action and contributing to the delay.

Ultimately, the court ordered that each party bear their own costs for the motion.

The defendants, Shane Smith and Nadine Smith, successfully moved to set aside a noting in default.

The plaintiff, Norman Wong, had initiated the action alleging fraudulent conveyance.

The Smiths were noted in default after failing to file a Statement of Defence, despite having served an affidavit of documents.

The court found that the delay was excusable due to confusion and previous counsel's health issues, that the plaintiff would not suffer non-compensable prejudice, and that the Smiths had an arguable defence with an "air of reality" regarding the fraudulent conveyance allegations.

The decision emphasized the strong preference for deciding civil actions on their merits.

The appellants appealed a partial summary judgment dismissing claims related to the validity of a 2002 estate freeze of a family business (Master Steaks) and an oppression remedy concerning the distribution of funds from a vendor takeback mortgage (VTB) related to other family businesses (Truckers Haven).

The Master Steaks estate freeze excluded the appellant daughter, benefiting her brothers.

The motion judge found the estate freeze was validly implemented in 2002, or alternatively, regularized in 2013.

The motion judge also found that the distribution of VTB proceeds was not oppressive, applying the business judgment rule to the directors' decisions.

The Court of Appeal upheld the motion judge's findings, deferring to his factual and credibility assessments, particularly his adverse findings against the appellant.

The appeal was dismissed.

The plaintiff, Liquid Capital Exchange Corp., sought damages for fraud against multiple defendants, including two individuals (Cook and Daoust) who created false invoices, and an Enbridge employee (Zito) and Enbridge Gas Distribution Inc., alleging their involvement or vicarious liability.

The court found that Liquid Capital failed to prove Mr. Zito's participation in the fraud on a balance of probabilities, noting the plaintiff's significant lack of due diligence due to an misplaced trust in one of the fraudsters.

The court also determined that even if Mr. Zito had been involved, Enbridge would not be vicariously liable as Mr. Zito acted outside the scope of his employment and lacked the authority to approve such contracts or invoices.

The action against the defendants was dismissed.

The respondent law firm moved to set aside an assessment order obtained by the applicants, arguing it was statute-barred, and sought payment of outstanding legal fees.

The applicants cross-moved for an assessment of all 32 accounts rendered over a four-and-a-half-year retainer.

The central issue was whether the accounts were "interim" or "final" for the purpose of limitation periods under the Solicitors Act.

The court found that the accounts were final, based on the parties' intention, regular payment without complaint, and the nature of the billing.

The court concluded that the assessment order was statute-barred and ordered the applicants to pay the outstanding legal fees.

The Plaintiffs sought costs after the Defendants abandoned a motion they had brought seeking various reliefs, including an injunction and declarations regarding a mortgage loan.

The court found that the Defendants' motion was deemed abandoned under Rule 37.09(3) of the Rules of Civil Procedure, entitling the Plaintiffs to costs forthwith.

The court rejected the Defendants' argument that these were "interim costs" or should be "costs in the cause," distinguishing them from the extraordinary circumstances for interim costs.

While the Defendants' abandoned motion included a request for a declaration that could have disposed of the entire action (akin to a summary judgment), the court declined to award substantial indemnity costs under Rule 20.06, finding that the Defendants did not act unreasonably or in bad faith in bringing or abandoning the motion, as they were genuinely attempting to secure alternative financing.

The Plaintiffs were awarded costs on a partial indemnity basis.

The plaintiff mortgagee brought a motion for possession of a residence after the mortgagor defaulted.

The mortgagor brought a cross-motion in a related oppression action seeking an injunction to restrain the mortgage enforcement and an order for interim funding to pursue the oppression claim.

The court found that the mortgagor did not establish a strong prima facie case of oppression or show that he would suffer irreparable harm if the injunction was not granted.

The court also found that the mortgagor did not meet the test for interim funding.

The motion for possession was granted, and the cross-motion for an injunction and interim funding was dismissed.

The plaintiff mortgagee brought a motion for possession of a residence after the mortgagor defaulted.

The mortgagor brought a cross-motion in a related oppression action seeking an injunction to restrain the mortgage enforcement and an order for interim funding to pursue the oppression claim.

The court found that the mortgagor did not establish a strong prima facie case of oppression or show that he would suffer irreparable harm if the injunction was not granted.

The court also found that the mortgagor did not meet the test for interim funding.

The motion for possession was granted, and the cross-motion for an injunction and interim funding was dismissed.

The applicant obtained ex-parte Mareva and Norwich orders against his brother and sister-in-law, alleging they mismanaged a jointly owned corporation and breached an oral trust agreement.

The respondents moved to set aside the orders, arguing material non-disclosure and failure to meet the evidentiary threshold.

The court agreed, finding the applicant failed to disclose relevant correspondence and that contradictory evidence precluded a strong prima facie case.

However, given evidence of potential misappropriation, the court ordered a forensic accounting and froze the respondents' real property pending the investigation.

The moving party defendants brought a motion to dismiss the plaintiff's action under s. 137.1 of the Courts of Justice Act, which was dismissed as meritless.

The responding party plaintiff sought costs of the motion.

The court found that the plaintiff's claim had none of the indicia of a SLAPP and there was no public interest in protecting the impugned expression.

The presumption against awarding costs to a successful respondent under s. 137.1(8) was rebutted, and costs were awarded to the plaintiff in the amount of $44,320.57.

Mary Aquino brought a motion for a garnishment hearing under Rule 60.08(16) of the Rules of Civil Procedure to vary garnishment letters issued by the Minister of Finance.

The Minister had assessed Aquino for her common law spouse's pre-existing unpaid tax debt under the Retail Sales Tax Act (RSTA) and subsequently issued garnishment letters against her commissions and wages.

The court dismissed Aquino's motion, holding that Rule 60.08(16) does not apply to the Minister's garnishment letters issued under section 36 of the RSTA, and therefore, the court lacked jurisdiction to grant the requested relief.

The defendants brought an anti-SLAPP motion to dismiss a defamation action initiated by the plaintiff, Canadian Standards Association (CSA Group).

The court found that while the defendants' expressions related to a matter of public interest, the plaintiff demonstrated substantial merit to its defamation claim.

The court further determined that the defendants had no valid defences (truth, fair comment, qualified privilege, public interest responsible communication) due to a lack of verification, unsubstantiated allegations, and evidence of malice.

The court concluded that the harm suffered by the plaintiff was sufficiently serious to outweigh the public interest in protecting the defendants' expression.

Consequently, the motion to dismiss was denied, and the matter was ordered to proceed to trial.

The appellant appealed a summary judgment dismissing his professional negligence claim against a tax lawyer.

The appellant had retained the tax lawyer to advise on tax implications of a matrimonial settlement involving the purchase of his ex-spouse's shares in a family corporation.

The tax lawyer provided advice on two approaches: a direct purchase (which would trigger significant personal tax liability) and a redemption approach (which would avoid the tax hit).

The appellant ultimately settled using the direct purchase approach with a negotiated "tax discount" rather than the recommended redemption approach.

The appellant subsequently incurred approximately $1.3 million in tax liability and sued for negligence.

The motion judge granted summary judgment dismissing the claim, finding the tax advice was correct.

The Court of Appeal allowed the appeal, finding that partial summary judgment was inappropriate in these circumstances and that serious issues remained regarding the lawyer's professional obligations to ensure advice was communicated to and understood by the client.

The plaintiff, Norman Wong, sought costs following a successful motion for leave to issue a certificate of pending litigation and to amend the statement of claim.

The court awarded costs to the plaintiff, but significantly reduced the amount sought and ordered separate payments from the Sereda defendants ($2,000) and the Smith defendants ($6,000), payable in the cause, rather than on a joint and several basis.

The court declined to award substantial indemnity costs from the date of an offer to settle, finding the offer did not fully address the relief granted.

The appellant, a major language services company, appealed the dismissal of its defamation action against the respondents under section 137.1 of the Courts of Justice Act.

The respondents had posted comments on an online bulletin board criticizing the appellant's business practices in the context of a federal election candidate's suitability for office.

The motion judge dismissed the action, finding that the posts related to a matter of public interest and that the public interest in protecting freedom of expression outweighed the public interest in permitting the claim to proceed.

The Court of Appeal upheld the dismissal and refused leave to appeal the costs award of $30,000 on a full indemnity basis.

The applicant sought an interlocutory injunction to extend the voting period in the respondent political party's leadership contest, alleging that he and others had not received the necessary verification numbers to vote electronically.

The court dismissed the application on two grounds.

First, the applicant failed to exhaust the internal dispute resolution mechanisms provided in the party's election rules before seeking court intervention.

Second, applying the tripartite test for an interlocutory injunction, the court found that the balance of convenience heavily favoured the respondents, as extending the voting period at the eleventh hour would prejudice the tens of thousands of members who had already voted and disrupt the scheduled leadership convention.

The plaintiff brought a motion seeking leave to amend the statement of claim and leave to issue a certificate of pending litigation (CPL) against two properties, alleging fraudulent conveyances and/or resulting/constructive trusts.

The court granted leave to amend the statement of claim, finding no uncompensable prejudice.

For the CPL, the court applied the tests for fraudulent conveyances and found a prima facie case of fraud and "badges of fraud" for the Spillsbury property.

For the Wispi property, the court found a triable issue regarding a resulting or constructive trust based on the source of funds.

Both requests for CPL were granted.

The defendants brought a motion under s. 137.1 of the Courts of Justice Act to dismiss the plaintiff's defamation action arising from a blog post made during a federal election.

The blog post criticized a political candidate's association with the plaintiff corporation.

The court found the expression related to a matter of public interest.

The plaintiff failed to establish that its claim had substantial merit, that the defendants had no valid defence, or that the harm suffered outweighed the public interest in protecting the expression.

The action was dismissed with full indemnity costs awarded to the defendants.

The plaintiff clinic sued a chiropractor and her husband for removing patient files and loss of income.

The chiropractor counterclaimed for unpaid fees and loss of income resulting from the disruption of her practice.

At the summary judgment hearing, the clinic abandoned its main claim.

The court found that the clinic breached its business arrangement with the chiropractor, causing her a loss of income.

The court awarded the chiropractor damages for loss of income and unpaid fees, plus costs, against the clinic, but dismissed the counterclaim against the clinic's principal personally.