Charles L. Merovitz

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 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.

The defendants brought a motion to consolidate several debt enforcement actions with a related action they commenced against the plaintiff and others, arising from a failed joint venture.

The court dismissed the motion, finding that the debt enforcement actions were capable of summary determination and that the balance of convenience did not favour consolidation, as it would unnecessarily delay the adjudication of the debt claims.

The plaintiff mortgagee sought summary judgment on multiple defaulted mortgages granted to the defendants to fund a joint venture land development project.

The defendants argued the mortgages were unenforceable due to an oral agreement that the loans would only be repaid from future lot sales, and disputed the amounts owing.

The court granted summary judgment, holding that the alleged oral agreement was barred by the Statute of Frauds and the doctrine of part performance did not apply.

The court also declined to stay the enforcement of the judgments under Rule 20.08, finding the defendants' counterclaims lacked merit and the prejudice to the plaintiffs in delaying recovery was significant.

Following the dismissal of the defendants' motion for a certificate of pending litigation to stop power of sale proceedings, the successful parties sought costs.

The court awarded costs on a substantial indemnity basis, finding that the defendants' pursuit of the motion without evidence or pleading of fraud in relation to the mortgages was reprehensible conduct.

The court fixed the costs at $24,500, noting that the amount was fair and reasonable given the urgency and complexity of the inter-related actions.

The defendants in a mortgage enforcement action brought a motion for a certificate of pending litigation over nine parcels of land to stop power of sale proceedings.

They alleged that the mortgages were unenforceable due to the plaintiffs' breach of joint venture agreements and bad faith.

The court dismissed the motion, finding that the defendants had no reasonable claim to an interest in land, had not offered to redeem the mortgages, had not pleaded fraud affecting the right to redeem, and that damages would be a sufficient remedy.

The respondent in matrimonial litigation moved to have the former case management judge recuse himself due to a reasonable apprehension of bias.

The new case management judge dismissed the motion, finding it premature and pointless as the former judge was not scheduled for future involvement.

The court determined the respondent had an ulterior motive to revisit prior rulings and that the motion constituted an abuse of process, contrary to the Family Law Rules' objectives of saving time and expense.

The appellants appealed an order striking their statement of defence and sought to introduce fresh evidence, arguing their failure to file defending material was their lawyer's fault.

The Court of Appeal dismissed the appeal and the motion to admit fresh evidence, finding that the appellants' failure to comply with numerous court orders was due to their own intransigence.

The court agreed with the motion judge that this was one of the rare cases where striking a statement of defence was appropriate.

The plaintiff corporation brought a motion for summary judgment to enforce a mortgage against the defendant corporation.

The dispute involved two brothers, one acting as the plaintiff's director under a power of attorney from their father, and the other as the sole shareholder of the defendant.

The defendant argued that an oral agreement precluded enforcement and that the father lacked capacity to grant the power of attorney authorizing the action.

The court rejected the oral agreement defence based on the Statute of Frauds and the parol evidence rule.

However, finding a genuine issue regarding the father's capacity, the court stayed the motion for 30 days to allow the defendant's principal to commence proceedings under the Substitute Decisions Act to challenge the power of attorney.

The plaintiff brought a motion for a certificate of pending litigation regarding a terminated agreement of purchase and sale for commercial property.

The plaintiff had failed to close the transaction due to a lack of funds and waived tender, resulting in the forfeiture of its deposits.

The plaintiff subsequently alleged that the defendant failed to disclose unrelated litigation in Quebec, arguing this non-disclosure kept the agreement alive.

The court found the Quebec litigation irrelevant, determined the property was not unique, and concluded damages would be an adequate remedy.

The motion was dismissed.

The appellant brought a motion to adjourn its appeal of a decision by the Board of the Alcohol and Gaming Commission of Ontario.

The appellant sought the adjournment pending the outcome of an unrelated judicial review application by another licensee challenging the Board's institutional impartiality.

The Divisional Court dismissed the motion, finding that an adjournment could prejudice the respondent and delay the resolution of four-year-old allegations.

Crucially, the court noted that the appellant had never raised the issue of bias in its own case and declined to amend its Notice of Appeal to do so.

The appellant appealed a decision of the Board of the Alcohol and Gaming Commission of Ontario convicting it of infractions under the Liquor Licence Act, including permitting drunkenness, selling liquor to an intoxicated person, and overcrowding a patio.

The appellant argued there was a breach of natural justice due to delayed notice, that the Board misapprehended evidence, and that the defence of necessity applied to the overcrowding.

The Divisional Court dismissed the appeal, finding no unreasonable delay in notice, no palpable and overriding error in the Board's assessment of the evidence, and that the defence of necessity could not be raised for the first time on appeal.

The appellant appealed a decision dismissing his action based on absolute privilege and declaring him a vexatious litigant.

The Court of Appeal agreed with the application judge that the alleged statements were protected by absolute privilege and that the appellant had persistently and without reasonable grounds instituted vexatious proceedings.

The appeal was dismissed with costs.

The appellant appealed an order dismissing his action against several defendants, including his former partner, her lawyer, and a Quebec civil registry official, as frivolous, vexatious, and an abuse of process.

The action arose following a long history of paternity disputes and the appellant's conviction for criminal harassment.

The Court of Appeal found no basis to interfere with the motion judge's decision, noting that the claims against the registry official and the lawyer lacked foundation, and the action against the former partner was properly deemed an abuse of process.

The appellant appealed the dismissal of its claim for real estate commission on the sale of an apartment building.

The trial judge found that the respondents did not deliberately delay the transaction to avoid paying commission and that the final offer was a separate and discrete transaction.

The Court of Appeal held that these findings of fact were well supported by the evidence and dismissed the appeal.