Clifford Lax

This endorsement addresses the costs of a motion brought by the moving parties (Singh et al.) seeking consolidation of multiple actions, payment of outstanding costs orders against Talon International Inc. (Talon), and security for costs against Talon.

The court had previously dismissed the consolidation request, ordered Talon to pay existing costs or have its defence struck, and granted security for costs in one action.

In this costs decision, the court awarded partial indemnity costs to Val Levitan and the Trump parties, who successfully opposed the consolidation motion.

Costs were denied to Alex Shnaider, who was represented by the same counsel as Talon, and Talon itself did not seek costs.

The court declined to award substantial indemnity costs to Levitan, finding the settlement offer did not trigger such an award.

The moving parties sought to consolidate 19 actions related to hotel condominium units in the Trump Tower, compel payment of outstanding costs orders against Talon International Inc. (Talon), and obtain security for costs against Talon.

The court dismissed the motion for consolidation, finding it unlikely to streamline proceedings and primarily a tactical move to enforce costs.

However, the court ordered Talon to pay existing costs awards in two specific actions within ten days, failing which its defence and counterclaim in those actions would be struck.

Security for costs was granted against Talon only in the Shah/Patel action, where Talon was the plaintiff and had insufficient assets, but denied in other actions where Talon's counterclaims were deemed defenses.

The appellants sought to amend their statement of claim in a securities class action to add further particulars of wrongful conduct underlying their misrepresentation claims against the corporate respondent.

The motion judge denied leave for most of the amendments, finding they constituted discrete misrepresentation claims requiring fresh leave under s. 138.8(1) of the Securities Act, and were statute-barred under s. 138.14(1).

The Court of Appeal upheld the motion judge's decision, with one limited exception permitting the appellants to plead a narrower omission allegation relating to previously pleaded facts.

The court addressed scheduling for expedited civil actions that had not been reached during the January 2015 civil blitz sittings.

Defence counsel sought appointment of a case management judge, while the court required submissions on fixing a trial date in light of the age of the actions and an earlier expedited trial order.

The court held that the matters should proceed before the same judge on a fixed three-week trial commencing November 30, 2015.

Plaintiff's counsel was required to reassign or adjourn other matters if necessary.

The parties entered into a joint venture to purchase and convert a property into a self-storage facility, which included a put/call agreement.

The respondent exercised the put, forcing the appellant to purchase the property at a price determined by an appraiser.

The appellant refused to close, alleging the appraiser made a manifest error by not using the income approach.

The trial judge granted specific performance to the respondent and awarded substantial indemnity costs based on an unserved offer to settle.

The Court of Appeal dismissed the appeal, finding no manifest error in the appraisal, upholding the award of specific performance for the vendor, and confirming the costs award.

Following a 17‑day commercial trial in which the plaintiff obtained judgment for specific performance and damages exceeding its earlier settlement offer, the court determined the appropriate costs award.

The plaintiff relied on Rule 49 of the Rules of Civil Procedure, arguing that a written settlement offer transmitted by email triggered substantial indemnity costs consequences.

The court held that the email constituted a valid Rule 49 offer notwithstanding the “without prejudice” designation and rejected the defendants’ argument that such wording removed the offer from Rule 49.

In assessing quantum, the court applied the principles under s.131 of the Courts of Justice Act and Rule 57.01, emphasizing reasonableness rather than strict adherence to actual legal fees.

The court fixed costs at a lump sum reflecting partial and substantial indemnity principles and adjustments for conduct that lengthened the proceedings.

The plaintiff and defendants entered into an Option Agreement for the purchase and sale of a retro-fitted self-storage facility.

The plaintiff exercised a 'Put' option requiring the defendants to purchase the property at an appraised value.

The defendants refused to close, alleging the appraisal contained a manifest error and that the roof was defective, breaching a warranty.

The court found no manifest error in the appraisal and that the roof issues were maintenance problems which the defendants, as property managers, had failed to address.

The court granted specific performance of the sale at the appraised value of $7.3 million and awarded the plaintiff $728,080.05 in carrying costs.

The applicants sought a declaration that they validly exercised a shotgun buy/sell provision in a shareholders agreement, requiring the respondents to transfer their shares in the corporation.

The respondents argued the shotgun notice was invalid because it was issued jointly by two shareholders, and alternatively, that the applicants repudiated the agreement by demanding a release not required by the contract.

The court held that the shotgun provision, interpreted in its factual matrix, allowed for joint exercise by the applicants as a single shareholder group.

The court further found that the applicants did not repudiate the agreement, as they were ready and willing to close without the disputed release, whereas the respondents refused to close.

The application was granted, and the respondents were ordered to transfer their shares.

The plaintiffs sought leave under Part XXIII.1 of the Securities Act and certification of a proposed class proceeding alleging secondary market misrepresentation by a public issuer and its directors and officers in continuous disclosure documents.

They also requested approval to discontinue common law negligent misrepresentation and oppression remedy claims in favour of the statutory cause of action.

The court held that the plaintiffs met the statutory leave test by demonstrating good faith and a reasonable possibility of success at trial.

It further concluded that discontinuance of the common law and oppression claims would not prejudice class members because the statutory claim avoided reliance issues and certification difficulties.

The action was certified as a class proceeding, with identifiable class members, common issues, and a preferable procedure established.

The applicant, a former employee and pension plan member, sought an order compelling the employer to commence proceedings to wind up the pension plan under s. 68(1) of the Pension Benefits Act.

The employer brought a motion to strike these claims, which was dismissed by the motion judge and the Divisional Court.

On appeal, the Court of Appeal allowed the appeal and struck the claims, holding that based on the Supreme Court's decision in Buschau, the court does not have jurisdiction to compel an employer to wind up a pension plan at the request of plan members.

Doing so would circumvent the statutory scheme and usurp the authority of the Superintendent of Financial Services.

The appellants appealed a summary judgment dismissing their action against the respondents.

The dispute arose from the exercise of a shotgun buy/sell provision in a unanimous shareholders' agreement.

The appellant alleged breach of fiduciary duty, theft of corporate opportunity, and other claims after learning the respondent financed the buyout by agreeing to transfer corporate properties to a lender.

The Court of Appeal dismissed the appeal, finding the motion judge applied the correct summary judgment test and correctly concluded that no fiduciary duty exists between shareholders exercising a shotgun provision, nor was there any appropriation of a corporate opportunity.

The appellant, an executor of the Lorraine Penna estate, appealed the dismissal of a motion for a declaration that claims against the estate were statute-barred.

The respondents sought to hold the estate liable for the fraudulent actions of a co-trustee in the administration of the Paul Penna estate.

The Court of Appeal held that the two-year limitation period in s. 38(3) of the Trustee Act applied and was preserved by s. 19 of the Limitations Act, 2002.

The court found that the fraud exception in s. 43(2) of the former Limitations Act did not apply because the deceased trustee was not a party or privy to the fraud.

The court also declined to apply the special circumstances doctrine to add the estate as a defendant.

The appeal was allowed in part, declaring the summary judgment motion barred by the limitation period.

The complainant, who is visually impaired, brought a human rights complaint against the Toronto Transit Commission for failing to announce all surface transit stops.

Following an interim decision finding the TTC in breach of the Human Rights Code, the Tribunal issued final remedies.

The Tribunal ordered the TTC to implement automated stop announcements with a 98% reliability rate, conduct extensive training for staff and management, hold annual public forums on accessibility, and pay $35,000 in damages to the complainant.

The complainant, who is blind, alleged that the Toronto Transit Commission (TTC) discriminated against him and other visually impaired persons by failing to consistently announce all streetcar and bus stops.

The Human Rights Tribunal of Ontario found that the failure to announce all stops constituted a prima facie breach of the Human Rights Code.

The TTC argued that requiring drivers to announce all stops would cause undue hardship due to safety concerns, but the Tribunal rejected this defence, noting the lack of expert evidence and the fact that drivers already announce stops in inclement weather.

The Tribunal issued an interim order requiring the TTC to implement a program to clearly and consistently announce all surface stops within 30 days.

The appellant appealed a trial decision admitting an unsigned copy of his mother's 1997 will for probate.

The respondent, the testator's common law husband, had presented a 'cut and paste' photocopy after the original was lost.

The appellant argued the trial judge erred in applying the test for proving a lost will and failed to consider suspicious circumstances.

The Court of Appeal dismissed the appeal, finding the trial judge correctly applied the four-part test for proving a lost will, including rebutting the presumption of revocation and proving the contents.

The Court also held that the facts did not amount to suspicious circumstances that would vacate the presumption of testamentary capacity.

The appellants appealed a motion judge's decision striking their statement of claim against the respondents, who were patent agents for the appellants' competitors.

The Court of Appeal upheld the motion judge's finding that the statement of claim disclosed no viable causes of action.

The court found no fiduciary duty or duty of care owed by the respondents to the appellants, no basis for a constructive trust, no pleaded conspiracy, no conversion, and no statutory cause of action for false statement since the respondents were not competitors.

The appeal was dismissed with costs.

The appellant lawyer sued his former law firm and its managing partner for defamation based on comments published in a legal newspaper following his departure from the firm.

The defendants successfully moved to strike the statement of claim on the basis that the words were not reasonably capable of bearing the defamatory meanings alleged.

The Court of Appeal upheld the motion judge's decision, finding that the impugned words, when construed in context and according to their natural meaning, were not capable of meaning that the appellant was forced out, unable to work as a team, selfish, or unprofessional.

The appeal and a motion for leave to appeal costs were dismissed.

The respondent resigned as a partner from the appellant law firm and commenced an action asserting financial claims, a claim regarding the transfer of client files, and a dispute over a non-competition clause.

The appellant moved to stay the claims on the basis that they were subject to mandatory arbitration under the partnership agreement.

The motion judge declined to order a stay.

On appeal, the Court of Appeal held that the arbitration clause, which covered any dispute 'in connection with' the agreement, was broad enough to encompass all of the respondent's claims.

The court allowed the appeal and ordered that the action be stayed.

The defendants brought a motion for leave to appeal a decision dismissing their motion for summary judgment.

The underlying action involved claims of conspiracy and unlawful interference against the defendants, who acted as opposing counsel in a prior oppression proceeding that settled.

The court granted leave to appeal under Rule 62.02(4)(ii), finding good reason to doubt the correctness of the motions judge's decision due to a failure to provide sufficient reasons addressing whether the action was frivolous and vexatious, and determining the issue was of sufficient public importance.

The appellants appealed a decision of the Ontario Court of Appeal regarding the allocation of losses between beneficiaries after a trustee made unauthorized disbursements from a mingled bank account.

The appellants argued that the 'first-in, first-out' rule in Clayton's Case should apply to determine how the remaining insufficient funds were distributed.

The Supreme Court of Canada dismissed the appeal, agreeing with the Court of Appeal that the rule should not apply and adopting the reasons of the lower court.