Christopher J. Cosgriffe

The moving party brought a motion for leave to appeal the decision of the lower court judge.

The Divisional Court dismissed the motion for leave to appeal.

The moving party was ordered to pay costs of $5,000 inclusive of disbursements and HST to the responding party.

Ryerson Futures Inc. brought a Rule 21 motion to strike the oppression claim against it for failure to disclose a reasonable cause of action.

The plaintiff alleged that minority shareholders orchestrated his termination and the undervalued sale of company assets through a shareholders' agreement mechanism.

The court found that the pleadings disclosed no viable oppression claim against Ryerson, as it had no active role in the termination, lacked voting power to prevent the shareholder resolution, and its consent to the transaction was irrelevant.

The court granted leave to amend within 20 days, with costs awarded to Ryerson.

This costs endorsement follows a successful application by Figaro Dominion Ltd. and Figaro Gate Ltd. for a permanent injunction restraining the developer from obstructing a laneway and parking behind the applicants’ units.

The court awarded the applicants $33,000 in costs against the developer and awarded the Church full indemnity costs of $68,076.53, also payable by the developer.

The decision addresses the scale and quantum of costs, the effect of settlement offers, and the application of an indemnity clause in a Crane Swing Agreement.

The Applicants, commercial landlords, sought a permanent injunction against the Developer and the Church regarding the use of a right-of-way (ROW) over a laneway behind their properties.

The court found that the Developer’s construction activities, including staging, parking, and storage, substantially interfered with the Applicants’ use of the ROW, particularly for parking and access by tenants and customers.

The court granted a permanent injunction restraining the Developer from obstructing the laneway and from allowing its workers to park directly behind the Applicants’ units, but declined to order removal of all construction equipment due to the stage of construction and delay in seeking relief.

The applicant sought the appointment of an arbitrator under a construction agreement.

The respondent cross-applied for a declaration that the arbitration was barred by the Limitations Act, 2002, and that procedural preconditions were not met.

The court granted the application to appoint an arbitrator and dismissed the cross-application, holding that under the competence-competence principle and the 'hands-off' approach to arbitration, the arbitrator should determine their own jurisdiction and the limitation period defence.

The moving party, Eacom Timber Corporation, brought a motion to strike a counterclaim against it on the basis that it disclosed no reasonable cause of action.

The responding parties sought contribution and indemnity from Eacom for amounts they might owe under equipment leases, alleging Eacom wrongfully terminated a related contract.

The court found no reasonable cause of action because there was no tort alleged and no contractual provision requiring Eacom to indemnify the responding parties.

The court struck the counterclaim and denied leave to amend, noting the responding parties had already claimed the same damages in a separate outstanding action against Eacom.

The plaintiff developer purchased limited partnership units back from the defendant investor.

The plaintiff mistakenly calculated the purchase price based on an assumed original investment of $300,000 instead of the actual $150,000, resulting in a windfall to the defendant.

Upon discovering the error, the plaintiff sought rectification or rescission.

The court found that the transaction proceeded on a common mistake and that the defendant could not rely on the entire agreement clause to take advantage of an obvious error she could have verified.

The court granted the plaintiff equitable relief, allowing the defendant to elect between rescission or rectification (returning the $132,300 overpayment).

In a wrongful dismissal action, the plaintiff brought a motion to strike the defendant's statement of defence, alleging a pattern of delay and evasion in fulfilling discovery obligations and answering undertakings.

The defendant argued it had made best efforts but was hindered by the sale of its assets and records to a third party, which had restricted access due to the COVID-19 pandemic.

The court declined to strike the defence, finding the defendant's efforts were genuine and its conduct did not rise to the level of deliberate or unequivocal default.

However, the court ordered a limited two-hour re-examination of the defendant's representative and appointed itself for light-touch case management to ensure the action progressed.

Subway Franchise Restaurants of Canada Ltd. appealed the dismissal of its application for relief from forfeiture after failing to exercise a lease renewal option within the specified timeframe.

Subway argued that BMO Life Assurance Company, the landlord, breached its duty of good faith by remaining silent when Subway inquired about the lease termination date, which Subway had incorrectly diarized.

The Court of Appeal upheld the application judge's decision, finding that BMO did not lie, mislead, or actively contribute to Subway's misapprehension.

The court distinguished the facts from the Supreme Court's decision in *C.M. Callow Inc. v. Zollinger*, emphasizing that a duty to correct a misapprehension only arises if the party contributed to it.

Subway had access to the correct termination date via an estoppel certificate and failed to make diligent efforts to comply with the lease terms.

The Applicant, a commercial tenant, sought relief from forfeiture after failing to exercise its lease renewal option within the stipulated timeframe.

The tenant had mis-diarized the lease expiry date despite having signed an Estoppel Certificate with the correct date.

The court dismissed the application, finding that the onus was on the tenant to comply with the lease terms and that the landlord had no duty to correct the tenant's errors or disclose information beyond the contractual obligations.

The plaintiff sought costs of $5,379.80 on a partial indemnity scale following a motion to compel answers to undertakings and refusals.

The defendant argued no costs should be awarded due to divided success, as the plaintiff only obtained orders for 10 of the 27 undertakings and refusals argued.

The court found that while success was divided, the motion was necessary to compel compliance and the defendant had taken an improper position regarding access to its records.

The court awarded the plaintiff costs fixed at $2,000 inclusive of HST and disbursements.

Following the dismissal of the applicants' request to remove a boundary tree, the successful respondents sought costs.

The respondents had made an offer to settle prior to the hearing, which the applicants did not accept.

The court awarded the respondents costs on a partial indemnity scale up to the date of the offer and on a substantial indemnity scale thereafter.

The court found the respondents' counsel's hourly rates and staffing choices reasonable, fixing total costs at $77,000 inclusive of disbursements and HST.

The applicants sought an order authorizing the removal of a mature boundary tree shared with the respondents to facilitate a home extension.

The applicants argued the tree constituted a nuisance because its protection zone prevented their proposed construction.

The court dismissed the application, finding that the tree did not interfere with the applicants' current use and enjoyment of their property, but only with their desired enhancement.

The applicants failed to demonstrate that the tree was a substantial and unreasonable interference or that there were no reasonable alternative designs for their renovation.

The appellant, a bank in liquidation, appealed a decision of the Superior Court of Justice.

Counsel for the appellant advised the court that he was unable to obtain clear instructions from his client and that the instructions received indicated it was not in the appellant's interest to prosecute the appeal.

The Court of Appeal proceeded on the basis of the written record and found no basis to interfere with the motion judge's decision.

The appeal was dismissed with costs awarded to the respondent.

The defendants were successful at trial and sought costs of $346,561.72 on a partial indemnity basis.

The plaintiff objected to the amounts claimed for examinations for discovery, senior counsel's hourly rate, and the cost of the defendants' expert report.

The court rejected the plaintiff's arguments regarding discovery and counsel rates, finding the $450 hourly rate for senior counsel reasonable.

However, the court reduced the disbursement for the expert report by $22,500 to reflect work attributable to an excluded portion of the report.

The court fixed the defendants' costs at $315,000 all-inclusive.

The plaintiff brought a motion to remove Shawna Sosnovich and Devry Smith Frank LLP as counsel for the defendant Anna Chen, alleging a conflict of interest.

The conflict arose because a partner at the firm, Lorne Shapiro, was likely to be a material witness at trial, having provided an affidavit that contradicted the plaintiff's evidence regarding key events leading to the litigation.

The court granted the motion, finding that the proper administration of justice required the removal of counsel due to the inherent conflict between a lawyer's duty of objectivity to the court and the obligation to present evidence favorably to a client, a conflict that cannot be waived.

The plaintiff brought a motion seeking answers to undertakings and questions refused during the examination for discovery of the defendant Juice DMS Advertising Inc., and an order compelling a representative of Juice DMS to re-attend discovery.

The court granted most of the plaintiff's requests for answers to undertakings and refusals, including compelling Juice DMS to make inquiries of a former employee now adverse in interest.

A re-attendance on discovery was ordered by consent.

Costs were awarded to the plaintiff.

The plaintiff moved for summary judgment against her former employer, claiming wrongful dismissal and breach of her employment contract.

The core issue was whether her contract automatically renewed for an additional year because the employer failed to provide a 30-day notice of non-renewal prior to the end of the initial three-year term.

The court found no genuine issue requiring a trial, interpreting the contract to mean it had automatically renewed.

The court awarded the plaintiff her base salary and performance bonus for the remainder of the initial term plus the one-year renewal period, but denied her claims for health insurance stipends and office expenses.

The plaintiff, Brand Name Marketing Inc., brought an action against Rogers Communications Inc. for breach of a non-disclosure agreement and breach of confidence.

The plaintiff alleged that it provided confidential marketing concepts to Rogers regarding a 'Pink Phone program' and a 'Call for the Cure program', which involved affinity marketing with a breast cancer charity.

The plaintiff claimed that Rogers misused this information to launch its own 'Pink Razr campaign' and sought over $14 million in damages.

The Superior Court of Justice dismissed the action, finding that the plaintiff could not enforce the NDA as it was not a party to it at the relevant time.

Furthermore, the court held that while certain financial projections were confidential, the general concept of a charitable donation tied to a product sale was public knowledge.

Ultimately, the court concluded that Rogers did not use the plaintiff's confidential information in designing or implementing the Pink Razr campaign, which was fundamentally different from the plaintiff's proposals.

An employee who was employed as CEO and president for nine years brought an appeal challenging the trial judge's finding that the employer's refusal to pay a bonus on profits from the sale of real estate investments did not constitute constructive dismissal, despite breaching the employment contract.

The Court of Appeal upheld the trial judge's decision, finding that the breach did not substantially alter an essential term of the employment contract and did not evince an intention by the employer to no longer be bound by the contract.

The court applied the two-branch test from Potter v. New Brunswick Legal Aid Services Commission, finding that neither branch was satisfied on the facts.