Christopher M. Stanek

Following the dismissal of the plaintiff's motion to oppose the confirmation of a referee's report granting partial summary judgment, the defendant sought costs of $40,872.16 on a partial indemnity basis.

The plaintiff argued costs should be deferred to the final disposition of the reference or reduced.

The court declined to defer costs, noting that costs should generally be awarded for every step of the litigation process.

The court fixed costs at $35,000, finding this amount closer to the reasonable expectations of the parties given the complexity and importance of the issues.

The appellant developer sought a declaration that a COVID-19 emergency regulation extending limitation periods also extended the 36-month deadline in a City of Toronto by-law for submitting a building permit application after receiving a demolition permit, which would have entitled the appellant to a development charge reduction of $6.7 million.

The application judge dismissed the application, finding the by-law deadline was not a limitation period within the meaning of the regulation.

The Court of Appeal found no error and dismissed the appeal.

Following a trial in a construction dispute, the court issued an addendum correcting a tabulation error, resulting in an increased damages award of $179,681.59 to the plaintiff.

On the issue of costs, the court found the defendant was substantially successful on liability but reduced its costs recovery because it failed to prove the majority of its claimed damages.

The court rejected the defendant's argument for full indemnity costs under the subcontract, awarding $415,000 in partial indemnity costs.

The plaintiff was awarded prejudgment interest at 2% per annum from the date the project was substantially performed.

This is a costs endorsement following the dismissal of a motion for an injunction.

The respondent sought costs in the amount of $116,344.59, including a claim for substantial indemnity costs based on offers to settle.

The court considered whether costs should be reserved to trial or awarded forthwith.

While the general rule is that costs on unsuccessful injunction motions should be paid forthwith, the court found that costs should be reserved to the cause based on the particular circumstances of the case, including the respondent's delivery of an undertaking that addressed the applicant's concerns and formed the basis for the dismissal.

A construction lien dispute arising from the termination of a mechanical subcontract.

The plaintiff, a mechanical contractor, claimed a lien for unpaid work and damages for wrongful termination.

The defendant, the construction manager, terminated the subcontract citing multiple defaults including failure to provide adequate manpower, delays in completing critical work, and failure to correct deficiencies.

The court found the defendant properly exercised its contractual right to terminate based on the plaintiff's failure to properly and diligently perform the work, but awarded the plaintiff the net unpaid balance of the subcontract after deducting the defendant's completion costs and other back-charges.

The applicants sought a permanent or interlocutory injunction to prevent the respondent from interfering with their easement rights over a laneway.

The respondent, a non-profit charitable corporation, intends to construct a long-term care home and has proposed restrictions to the laneway width and temporary closures.

The court dismissed the motion for an interlocutory injunction, finding that while the applicants demonstrated a substantial issue to be tried, they failed to establish irreparable harm.

The court noted that the applicants had previously agreed to similar restrictions in a Memorandum of Understanding in exchange for removal of a restrictive covenant, and that any damages would be quantifiable.

The balance of convenience favoured the respondent's development of the long-term care facility.

This case arose from a dispute over the enforcement of a settlement agreement where the defendants attempted to pay the settlement funds in monthly installments without the plaintiff's consent.

Following a case conference, the court previously ruled that the funds must be paid in a single installment within a reasonable time.

In this subsequent endorsement, the court addressed outstanding issues regarding the final order, including the inclusion of the settlement amount, post-judgment interest, and costs.

The court ordered the defendants to pay the full settlement amount, post-judgment interest starting from forty-five days after the settlement was reached, and costs of eight thousand dollars to the plaintiff.

The appellant software company appealed the dismissal of its claim that the respondent breached a distribution agreement by copying the features and functionality of its software to create a derivative work.

The Court of Appeal upheld the trial judge's factual findings that no copying occurred and that the respondent's use of a marketing presentation was authorized.

The Court also found no error in the trial judge's evidentiary rulings, including the exclusion of an omnibus package of documents under the party admissions exception to the hearsay rule and the exclusion of an expert report that lacked necessity.

The appeal was dismissed.

This action concerned a Distribution Agreement between MJL Enterprises Inc. (plaintiff) and SAL Marketing Inc. (defendant) for MJL's software, iSTAR.

The plaintiff sought damages for alleged breach of contract, including failure to market the software, non-payment of invoices for development work, and copying of software features.

The defendant maintained it was a standard distribution agreement, the software was not marketable, invoices were not properly approved per the contract, and no copying occurred.

The court found no breach of the Distribution Agreement by the defendant, that the invoices were not issued in compliance with the contract, and that there was no evidence of software copying, misrepresentation, fraudulent misrepresentation, or breach of confidence.

All claims for damages were dismissed.

The applicant sought a declaration that it had provided a valid and enforceable notice of extension under a 2015 lease.

The court dismissed the application, finding that the applicant and respondent had entered into a new binding agreement on November 24, 2021, which superseded the original lease terms.

Consequently, the applicant could not extend the 2015 lease by notice of extension and was ordered to pay past due rent and costs to the respondent.

Siemens Canada Limited brought a motion for summary judgment seeking to limit its liability to Symtech Innovations Ltd. to admitted holdback and to dismiss Symtech's significant prolongation claim.

The court found that Symtech failed to provide timely contractual notice of its prolongation claim, which was a condition precedent to maintaining the claim.

Consequently, the prolongation claim was dismissed.

However, the court found genuine issues requiring a trial regarding Siemens' alleged breaches of the sub-subcontract and the quantification of other earned and unpaid amounts.

The court also declined to grant summary judgment in a related breach of trust action, noting jurisdictional differences.

The applicant, J. Lang Management Inc., brought a motion for a certificate of pending litigation (CPL) over the "Jordon Lands" based on a contractual term in an asset management agreement.

This term stipulated that the respondents would grant a mortgage over the Jordon Lands to secure asset management fees if the applicant had a reasonable apprehension of non-payment.

The respondents argued the fees were not owed and that the applicant had provided no valuable services.

The court found that the applicant had raised a triable issue regarding its interest in the land and that granting the CPL was just and equitable.

The court rejected the respondents' proposed alternative security, emphasizing the importance of upholding the specific security terms negotiated in the commercial agreement.

This is the third installment of a trial to determine the fair value of a corporate entity and other damages owed by an estate, following previous findings of oppression.

The court addressed complex accounting issues, including the outstanding balance of a shareholder loan, financing fees, and the ownership interests and loan obligations of added parties in related entities.

The court made specific findings on these financial adjustments, leading to a significant payment ordered from the estate to the applicant.

The decision also clarified the application of res judicata in multi-stage proceedings and emphasized the consequences for parties responsible for poor financial record-keeping.

The applicants and respondents were shareholders in a corporation that acquired a hotel and redevelopment project.

Following a finding of oppression against the respondent, the corporation was ordered to be liquidated.

In this trial to resolve disputes over the distribution of liquidation proceeds, the respondent claimed entitlement to development fees, hotel management fees, reimbursement of expenses, and repayment of shareholder loans including advances made to a subsidiary.

The court dismissed the claims for development and management fees, finding no written agreement and a failure to comply with the disclosure requirements for self-interested contracts under s. 132 of the Business Corporations Act.

The court allowed certain business expenses while characterizing others as loan repayments, and held that it was just and equitable to include advances made to the subsidiary in the calculation of the respondent's shareholder loan.

This appeal concerned the sale of Lash Point, a family cottage property owned by a non-profit corporation (LPAC).

Family members were divided between "Remainers" (who wanted to keep the property) and "Departers" (who wanted to sell their interests).

A lower court initially ordered a staged buy-out, but due to delays, a motion judge later approved an en bloc sale of the entire property to third parties, reversing the original plan.

The appellants (Remainers and LPAC) appealed, arguing the motion judge lacked jurisdiction to vary the original order and erred in approving the sale without satisfying the principles for sale approval in receivership contexts (Soundair principles).

The Court of Appeal affirmed the motion judge's jurisdiction to vary the order but found that the sale approval was flawed as it did not meet the Soundair principles, particularly regarding efforts to obtain the best price and the integrity of the sales process.

The appeal was allowed, the sale order set aside, and the Receiver was directed to develop a proper sales process for the entire property.

The court-appointed Receiver brought a motion for directions regarding an offer to purchase a large Muskoka property en bloc.

The original buy-out order directed the Receiver to sever the property to allow departing members of the corporation to be paid their share while remaining members kept a retained parcel.

After four years of delays and significant expenses, the severance process was incomplete.

The court found it had jurisdiction to vary the original order due to materially changed circumstances.

The court directed the Receiver to halt the severance process and accept the en bloc purchase agreement, which had the support of the vast majority of stakeholders and represented fair market value.

The applicant Receiver sought judicial review of an Ontario Labour Relations Board decision declaring it a successor employer under the Labour Relations Act.

The Receiver had been operating an insolvent debtor's retirement home business for several years.

The Divisional Court upheld the Board's decision, finding it reasonable that the Receiver met the test for a successor employer.

The Court also agreed that section 14.06(1.2) of the Bankruptcy and Insolvency Act does not immunize a receiver from prospective collective bargaining obligations, but only from pre-appointment liabilities.

The application for judicial review was dismissed.

The defendants brought a motion for an order requiring the plaintiffs to serve a further and better affidavit of documents, specifically seeking financial documents relevant to the plaintiffs' damages claims.

The plaintiffs argued that the defendants were precluded from seeking these documents because they had agreed to a Discovery Plan that excluded them.

The court found that the defendants had explicitly reserved their right to pursue the financial information when agreeing to the Discovery Plan.

The court ordered the plaintiffs to produce their financial statements and tax returns, as they were relevant to the claims for business losses, but declined to order production of other speculative documents at this stage.

The plaintiff brought a motion in a construction lien claim.

On consent of the parties, the court ordered that the matter be referred to a Master for trial.

Following the dismissal of the defendant's motion for leave to serve and rely on a late expert report, the parties could not agree on costs.

The plaintiff sought substantial indemnity costs of over $20,000, arguing the defendant's conduct warranted a punitive scale.

The court found the defendant's position on the motion was arguable and did not constitute an intentional breach of a prior order.

Applying the factors in Rule 57, the court awarded the plaintiff partial indemnity costs fixed at $10,000 plus HST.