Craig Murray Bater

Following a motion to consolidate 48 actions where the moving defendants were largely successful but the plaintiff successfully resisted consolidation of one action, the court determined costs.

Considering the divided success and a reasonable settlement offer made by the plaintiff, the court ordered the moving defendants to pay partial indemnity costs of $7,500 to the plaintiff and $5,522.91 to the successful co-defendant, Boston Pizza.

The plaintiff commenced 48 separate actions (38 in Superior Court, 10 in Small Claims Court) relating to various loan transactions, primarily alleging negligence and breach of fiduciary duty against its former lawyers.

The defendant lawyers brought a motion to consolidate the actions.

The court ordered that 37 of the Superior Court actions be consolidated into a single action to avoid multiplicity of proceedings and reduce costs.

The 10 Small Claims Court actions were also consolidated and ordered to be transferred and tried together with the Superior Court action.

All actions were ordered to be case managed.

Following a trial regarding adverse possession where the respondents were completely successful, the parties made written submissions on costs.

The respondents sought substantial indemnity costs based on offers to settle, while the applicants argued the case was novel and no costs should be awarded.

The court rejected the applicants' argument, finding the case was a classic adverse possession dispute.

The court awarded the respondents partial indemnity costs fixed at $53,605.26, inclusive of disbursements and HST.

The Applicants sought a declaration of ownership over a portion of a shed straddling a property line, claiming adverse possession.

The Respondents, and their predecessors in title, had openly, continuously, and exclusively possessed and renovated the shed since at least 1990, effectively excluding the true owner.

The court found that the Respondents and their predecessors had acquired the rear portion of the shed (Part 1 on Plan 15R-10725) through adverse possession by 2000.

Additionally, the court found that the Applicants had acquired an overhanging roof of a commercial shed (Part 3 on Plan 15R-10725) on the Residential Property through adverse possession.

The appellants appealed an order declaring a family trust invalid and vesting its assets in the respondent Trustee in Bankruptcy.

The respondent moved to dismiss the appeals, and the alleged trustee of the trust brought a cross-motion.

The Court of Appeal found significant irregularities regarding the notice provided for the original hearing, noting that the hearing proceeded in the absence of the undischarged bankrupt and any representative of the trust.

The court set aside the original order and remitted the matter for a new hearing in the Superior Court of Justice to ensure procedural fairness.

The appellant, a permanent golfing member of a share capital social club, sought to transfer to a social membership category while retaining his Class B voting share.

The club's board adopted a policy requiring members transferring out of permanent golfing categories to resign, thereby cancelling their voting shares, and reapply.

The appellant argued this policy unlawfully varied his share rights under the Corporations Act.

The court held that the policy did not vary share rights, as the appellant could keep his share by remaining in his current category, and the policy was a reasonable exercise of the board's authority.

The court also determined that the appeal properly lay to the Divisional Court, reconstituting itself to dismiss the appeal.

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.

On the return of a civil contempt motion, the plaintiff sought incarceration after the defendant failed to purge an earlier contempt finding by providing complete answers to undertakings.

The court found the defendant continued to mislead the court through repackaged, redacted, and unreliable documents and had not purged his contempt.

Applying the established principles governing civil contempt sentencing, the court held that a further custodial sanction was unnecessary given the prior striking of the defence, partial judgment, and earlier costs award.

The court instead imposed a $7,500 fine, authorized further tracing steps through signed authorizations, and awarded substantial indemnity costs of $12,000.

Following a finding of contempt and a motion to strike the defence, the successful party sought full indemnity costs exceeding $67,000.

The court considered the aggravating factors under Rule 57.01 of the Rules of Civil Procedure and the conduct of the responding party, including findings that the responding party had deliberately misled the court and bankruptcy officials.

The court held that the contempt finding justified costs on a higher scale, namely substantial indemnity.

However, the court reduced the amount claimed to account for prior cost awards and some duplication related to a previous motion to lift a stay of proceedings.

Costs were fixed at $50,000 inclusive of HST and disbursements.

The plaintiffs claimed damages for breach of a written contract to purchase a yacht.

The defendant argued that he and the deceased plaintiff had verbally agreed to waive performance of the written contract and instead entered into a month-to-month rental agreement.

The court applied section 13 of the Evidence Act, requiring corroboration of the defendant's evidence against the deceased's estate.

The court found sufficient circumstantial evidence corroborating the defendant's version of events, concluding that the parties had mutually waived performance of the written contract.

The plaintiffs' action was dismissed.

Following a two‑day motion concerning interim relief in an estate-related civil action, both parties sought costs after investing substantial legal resources in preparing and arguing the motion.

The court determined that most of the legal work related to investigating the merits of the underlying claims and would be more appropriately treated as costs in the cause.

However, the moving party achieved limited success by obtaining interim recovery of personal property and a certificate of pending litigation relating to land.

The court therefore awarded modest partial costs for those aspects of the motion while declining to award the broader costs sought by either side.

Additional submissions regarding an alleged lien on the vehicle were refused, and security in the amount of $35,000 was ordered to be paid into court pending resolution of the action.

The plaintiff brought a motion in a dependant’s relief action under the Succession Law Reform Act seeking interim support from the deceased’s estate, interim possession of a residence, and possession of a motor vehicle allegedly gifted inter vivos by the deceased.

The court held that the plaintiff failed to establish a prima facie entitlement to support because the evidence did not demonstrate cohabitation for three years or otherwise satisfy the definition of “spouse” under the Act, nor did she establish financial need.

Interim possession of the residence was also refused because the property was owned by a family trust and there was no statutory or injunctive basis to grant exclusive possession.

However, the plaintiff established a strong prima facie case that the deceased gifted her a BMW vehicle, supported by a signed transfer and recorded statements.

The court ordered interim preservation of the vehicle and permitted the plaintiff to elect between possession with security, estate possession with security, or sale with proceeds paid into court.

The plaintiff corporation sued its real estate agent and brokerage for breach of fiduciary duties arising from the sale of a commercial property.

The court found that the agent acted as an undisclosed dual agent, failed to provide required written disclosure under the Real Estate and Business Brokers Act Code of Ethics, failed to recommend a counter-offer, failed to disclose material information relevant to the transaction, and failed to strongly encourage independent legal advice before execution of the agreement.

The court held that these breaches deprived the seller of an opportunity to negotiate a better deal and constituted a breach of fiduciary obligations owed by a real estate agent to a client.

Although the plaintiff could not prove damages from an improvident sale, the agent had no contractual entitlement to a commission and, in any event, forfeited the commission due to the fiduciary breaches.

The defendants were ordered to return the commission plus prejudgment interest.

The appellant appealed the dismissal of his claim for a share of profits made by the respondent from the purchase and resale of a recreational property.

At trial, the appellant claimed an agreement to jointly purchase and market the property, which the trial judge rejected.

On appeal, the appellant argued breach of fiduciary duty and sought 100% of the profits.

The Court of Appeal dismissed the appeal, finding that breach of fiduciary duty was not pleaded at trial, the record did not support an agency or fiduciary relationship, and the appellant had repudiated his agreement to purchase the property before the respondent resold it.

The appellants appealed a trial judgment finding them liable for defamation, intentional interference with economic relations, and inducing breach of contract arising from the peremptory removal of the respondent from a military aerospace consulting project.

The Court of Appeal clarified the elements of intentional interference with economic relations and inducing breach of contract, adopting the House of Lords' approach in OBG v. Allan.

The court held that unlawful means for intentional interference must be directed at a third party and not directly actionable by the plaintiff.

While the trial judge erred in using defamation directly actionable by the plaintiff as unlawful means, the court upheld liability based on a conspiracy against a third party and breach of contract.

The court also confirmed that inducing breach of contract requires an actual breach, not mere frustration.

The appeal was dismissed and the damages awards were upheld.

The applicant employers sought a review of an Employment Standards Officer's Order to Pay vacation pay to approximately 60 employees following the acquisition of a bankrupt business.

At the hearing, the employer provided unchallenged evidence that it had already paid the required vacation pay to all former employees it continued to employ, and that other individuals on the order were never employed by the applicants or had breaks in service.

As the employer had fully complied with its obligations even if a sale of business had occurred, the Board rescinded the Order to Pay and directed the return of funds held in trust.