Charles Wagman

The plaintiff brought a motion for partial summary judgment alleging civil fraud arising from altered trust ledger statements relating to land transfer tax amounts in three condominium transactions.

The moving party alleged the defendant misrepresented tax amounts, resulting in a $40,000 discrepancy and sought damages, tracing, and disgorgement.

The court found that the defendant had made a false representation and knew it was false, but determined that the plaintiff failed to establish the required element of loss because the $40,000 had been repaid pursuant to a certified cheque delivered in connection with criminal proceedings.

As a result, the claim for repayment of the $40,000 could not succeed on summary judgment.

Remaining claims, including disgorgement and related relief, were left to be determined at trial.

The court addressed costs following an earlier order converting an application into an action with terms.

The judge considered the discretionary nature of costs under s. 131(1) of the Courts of Justice Act and the factors listed in Rule 57.01(1) of the Rules of Civil Procedure.

Although successful parties are generally entitled to costs, the court found reason to depart from the general rule given the litigation history and prior failures by certain respondents to comply with court orders that delayed the matter.

Costs were ordered to be in the cause between the corporate respondents, Robert Parr, and the applicant, fixed at $5,900 all-inclusive.

A respondent who was not a moving party was held not entitled to costs.

Following an earlier decision staying the plaintiff’s Ontario action on the basis that Quebec was the forum with the clearest connection to the dispute, the court determined costs of the successful defendants’ motion.

The defendants sought partial indemnity costs of $35,536.54, citing the complexity of the motion, extensive affidavit evidence, cross-examinations requiring interpretation, and the seriousness of allegations made in a $5 million claim.

The plaintiff argued the matter was straightforward and that the requested rates exceeded reasonable expectations.

Applying the principles governing costs under s. 131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court fixed costs at a fair and reasonable amount rather than the defendants’ full claimed amount.

Partial indemnity costs of $24,000 all-inclusive were awarded to the defendants.

Corporate respondents brought a motion under Rules 14 and 38.10 of the Rules of Civil Procedure to convert an application into an action before the application hearing.

The underlying dispute involved allegations of diversion of corporate assets, claims for $5 million in damages for conversion, punitive damages, and oppression remedies under the Business Corporations Act.

The court held that conversion was appropriate where the matter involved complex factual disputes, credibility issues, and anticipated expert evidence.

Given the magnitude of the damages claims and the likelihood of conflicting expert testimony, a full evidentiary record and viva voce evidence were required.

The court converted the application into an action and imposed procedural directions to expedite the litigation.

The defendants brought a motion to dismiss or stay an Ontario action alleging negligent legal advice and breach of contract arising from legal services provided in connection with Quebec litigation.

The plaintiff argued Ontario had jurisdiction because the defendant law firm carried on business in Ontario and an Ontario lawyer participated in providing the impugned tax advice.

The court held that presumptive connecting factors established jurisdiction simpliciter under the framework from Club Resorts Ltd. v. Van Breda.

However, applying the doctrine of forum non conveniens, the court concluded Quebec was clearly the more appropriate forum given the Quebec retainer agreement, Quebec governing law, the location of most witnesses and events, and parallel proceedings in Quebec.

The Ontario action was therefore stayed.

The defendant sought costs following success on motions heard December 23, 2011.

The court found the plaintiff had brought a meritless contempt motion and failed to diligently advance the litigation.

Given the defendant’s complete success and the conduct of the moving party, the court awarded costs on a substantial-indemnity basis.

Costs were fixed in the amount of $15,377.41 all-inclusive.

The plaintiff consulting company sued for unpaid contingency fees under a contract to prepare and submit claims for research and development tax credits.

After an initial meeting with a CRA reviewer, the defendant company lost confidence in the plaintiff and proceeded directly with CRA without the plaintiff’s involvement, eventually receiving reduced tax credits.

The court held that the contract required the defendant to allow the plaintiff to represent it in audits and to remain involved in the claim process.

By excluding the plaintiff and continuing the claim process independently while still benefiting from the credits, the defendant breached the contract.

The plaintiff was therefore entitled to the agreed percentage fee calculated from the credits ultimately received.

The plaintiff, an 18-year employee, was terminated from his position as Service Manager but immediately offered an identical position at the same salary at a related dealership.

The plaintiff refused the offer, citing concerns about seniority and the future of the new dealership, and sued for wrongful dismissal.

The court found that the plaintiff's refusal was objectively unreasonable and that he failed to mitigate his damages.

The action was dismissed with costs awarded to the defendant.

The plaintiff brought a motion for summary judgment seeking payment of $45,000 arising from a taxi licence sale transaction handled by the defendant, a lawyer.

The defendant cross-moved for dismissal, arguing he acted as a gratuitous bailee and that the plaintiff's claim was barred by the doctrine of ex turpi causa due to alleged tax avoidance.

The court weighed credibility under Rule 20.04 of the Rules of Civil Procedure and found the defendant’s evidence unreliable while accepting the plaintiff’s account.

The court held the defendant was acting as counsel in the transaction and was obligated to account for purchase funds that he failed to remit.

The defences of bailment and illegality were rejected, and summary judgment was granted to the plaintiff.

The plaintiff brought a motion to set aside a registrar’s order dismissing the action for delay and sought return of funds held pursuant to an earlier court order.

The defendant sought dismissal of a contempt motion, termination of an ex parte injunction relating to race horses, and costs.

Applying Rule 37.14 and the contextual approach described in Reid v. Dow Corning Corp. and subsequent appellate authority, the court considered the explanation for delay, inadvertence, promptness of the motion, and prejudice.

The court found the plaintiff had persistently failed to prosecute the action and had taken virtually no litigation steps, causing prejudice to the defendant.

The motion to set aside the dismissal was refused, the contempt motion was dismissed, and the injunction was terminated.

On competing summary judgment motions, the plaintiff sought commission recovery arising from a completed sale of commercial property, while the defendant sought dismissal of the action.

The court held the record established no enforceable agreement requiring the defendant vendor to pay commission on the closed transaction, particularly given contractual terms assigning commission responsibility to the purchaser.

The court further found that, even if such an agreement could be inferred, dual agency conflict principles and inadequate disclosure would bar recovery.

Applying Rule 20 to dispose of the matter without trial, the court granted the defendant's cross-motion and dismissed the action.