Daniel Allan Schwartz

The applicant sought costs of $34,160 on a full recovery basis against a third-party witness who unsuccessfully opposed a motion to be questioned prior to trial.

The third party argued he was a non-party and sought his own costs.

The court found the third party was a party for the purposes of the motion under the Family Law Rules and that the applicant was the successful party.

Applying principles of proportionality and considering the respective offers to settle, the court awarded the applicant costs fixed at $10,000.

This endorsement sets out the procedural parameters for costs submissions following a previous ruling on a motion for the preservation of witness evidence.

The parties and a non-party witness had resolved the procedural issues regarding the recording of the witness's evidence, making a further court appearance unnecessary.

The court directed that written costs submissions, limited to four pages exclusive of a bill of costs, must comply with Rule 4 of the Rules of Civil Procedure, with specific deadlines for delivery by the parties and the witness.

The appellant appealed a summary judgment decision granting specific performance of an agreement of purchase and sale for a Toronto property.

The respondent sought to purchase the property for $4.5 million but the transaction failed to close on the scheduled date.

The central issue was whether the appellant's conduct in providing an altered estoppel certificate and delivering the correct certificate only one hour before the 6:00 p.m. closing deadline precluded it from relying on the time-of-the-essence clause.

The Court of Appeal upheld the summary judgment, finding that the appellant's misconduct prevented it from enforcing the strict closing deadline and that specific performance was an appropriate remedy.

Following a successful motion by the respondent Estate to bifurcate the trial regarding the validity of a marriage contract, the Estate and the co-respondent sought costs.

The Estate claimed over $74,000 in partial indemnity costs, which the applicant argued was disproportionate.

The court agreed that the Estate's costs were excessive and disproportionate for a one-day motion, despite the high stakes and complexity.

The court fixed the Estate's costs at $35,000 and the co-respondent's costs at $2,500.

The respondent Estate brought a motion to bifurcate the proceeding, seeking a first trial on the validity of a Marriage Contract, separate from other issues including the applicant's claim to set aside the contract, elect equalization, and seek dependant relief.

The applicant opposed, arguing duplication of evidence and prejudice.

The court granted the bifurcation, finding it would lead to a more just, expeditious, and less expensive determination by potentially narrowing issues and promoting settlement, aligning with the culture shift emphasized in Hyrniak v. Mauldin.

The plaintiff, Fortress Carlyle Peter St. Inc., sought costs following its successful summary judgment motion for specific performance.

The defendant, Ricki’s Construction and Painting Inc., challenged the plaintiff's requested all-inclusive sum of $100,000 as excessive and unreasonable, proposing $50,000, and argued for divided success.

The court found the underlying motion was not simple, the plaintiff's costs claim reasonable with a $10,000 reduction, and rejected the argument for divided success.

The court awarded the plaintiff $90,000 in all-inclusive costs.

The plaintiff, Fortress Carlyle Peter St. Inc., brought a summary judgment motion for specific performance of an Agreement of Purchase and Sale for a property in Toronto, or alternatively, relief from forfeiture of a $1 million deposit.

The defendant, Ricki’s Construction and Painting Inc., brought a cross-motion for summary judgment to dismiss the action.

The court granted specific performance to the plaintiff, finding that the defendant's conduct, including delayed delivery and deceitful alteration of an estoppel certificate, disentitled it from insisting on "time of the essence" for the closing.

The property's uniqueness was also a factor supporting specific performance.

The plaintiff brought a motion for leave under Rule 48.04(1) to bring a subsequent motion to strike a pleading in the defendants' Fresh as Amended Statement of Defence.

The plaintiff argued leave was not required because the action had been struck from the trial list.

The court held that leave was still required and denied the motion, finding no significant or unexpected change in circumstances to justify the delay of over three and a half years since the impugned pleading was delivered.

The defendants sought costs following their substantially successful motion to compel the production of documents over which the plaintiff claimed privilege.

The plaintiff argued that costs should be in the cause or that no costs should be awarded due to divided success.

The court found that the defendants were overwhelmingly successful based on the number of documents ordered produced and the issues resolved.

Applying the factors under Rule 57.01, the court fixed the defendants' costs at $30,000 on a partial indemnity scale, payable within 30 days.

The defendants brought a motion to compel production of documents from the file of the plaintiff's subrogating insurer and to examine a representative of the insurer.

The plaintiff claimed solicitor-client, litigation, and settlement privilege over the documents.

The court reviewed the documents and ordered production of those where the dominant purpose was claims assessment rather than litigation defence, and those where the settlement privilege exception applied.

The court also ordered the examination of the insurer's representative, finding the action was brought for the insurer's immediate benefit.

The Ministry appealed a costs order awarding the plaintiffs $150,000 in partial indemnity costs following a motion to join the Ministry as a party and amend the statement of claim.

The Ministry argued the costs were excessive for a pleadings motion and that the judge failed to properly apply Rule 57.01.

The Divisional Court dismissed the appeal, finding that the motion was treated as a 'mini-trial' by the Ministry, the issues were of significant importance, and the judge properly considered the relevant factors in exercising his discretion to fix costs.

The appellants appealed a summary judgment decision regarding a software licensing dispute.

The motion judge found that the respondent breached the licence agreement and infringed copyright by using the software on operating systems other than AIX, but did not breach the agreement by using it on multiple servers.

The Court of Appeal upheld the motion judge's interpretation of the contract, finding no server restriction but confirming the AIX operating system restriction.

However, the Court allowed the respondent's cross-appeal in part, finding that the motion judge erred in dismissing the estoppel defence regarding the AIX restriction, and directed that the estoppel issue proceed to trial alongside the limitation defence and damages.

In this costs endorsement following a summary judgment ruling on liability in a software licence and copyright dispute, the plaintiffs sought partial indemnity costs of both the motion and the action to date.

The court held it was premature to award costs of the motion because the action had been bifurcated by the plaintiffs and the defendant had an outstanding monetary offer to settle the entire action, engaging the potential costs consequences of Rule 49.10(2).

The court declined to award action costs at this stage and deferred entitlement to motion costs until after the damages trial.

It nevertheless fixed the plaintiffs' partial indemnity costs of the summary judgment motion at $280,000 inclusive, should those costs later be awarded.

The defendant moved under Rules 21.01(1)(a) and 51.06 for a declaration that the plaintiffs had irrevocably elected to affirm a settlement agreement and therefore could not pursue rescission in the alternative.

In a complex commercial dispute arising from the termination of margin facilities and liquidation of hedge fund assets during the 2009 financial crisis, the court held that the factual matrix, discovery record, and alleged misrepresentations were too complicated to resolve on a paper record on the eve of trial.

The court was not satisfied that the pleadings or discovery admissions established the necessary elements of election, nor that a forced election between inconsistent remedies should be imposed at that stage.

The motion was dismissed, leave to amend was granted, and costs of $100,000 inclusive were awarded to the plaintiffs.

On a summary judgment motion in a software licensing dispute, the court interpreted a licence agreement governing enterprise use of document conversion software.

The court held that the agreement did not impose a one-server-per-licence restriction, but it did restrict use to the AIX platform and to association with IBM's CMOD database.

The moving parties obtained declarations that use outside those limits breached the licence and infringed copyright under the Copyright Act.

Estoppel and limitation defences based on technical support knowledge did not raise a genuine issue requiring a trial on liability.

Damages were directed to a trial rather than a reference.

The Crown brought a motion for leave to appeal an order permitting the plaintiffs to amend their statement of claim to add the Crown as a defendant in litigation concerning the implementation of competitive procurement for student transportation services.

The plaintiffs alleged the Ministry of Education improperly influenced school boards to use RFP processes under the Broader Public Sector Accountability Act and related procurement directives, disadvantaging smaller operators.

The court held that the claims, including allegations of negligent misrepresentation and breach of statutory duties, were not plainly untenable and required a full factual record at trial.

Questions regarding Crown immunity and the scope of any duty of care could not be resolved without detailed factual findings.

Leave to appeal was therefore refused.

Following dismissal of a motion by the Crown to strike a negligence and negligent misrepresentation claim arising from a government procurement process for school bus services, the court determined the appropriate costs award.

The plaintiffs sought substantial indemnity costs while the Crown argued for a lower partial indemnity award.

Applying Rule 57 of the Rules of Civil Procedure and the fairness principles from Boucher, the court held that the motion, although unsuccessful, was not wholly devoid of merit and therefore did not justify substantial indemnity costs.

The court also rejected the Crown’s submission that HST should not be included in a costs award against it.

Partial indemnity costs of $39,897 inclusive of disbursements and HST were awarded to the plaintiffs.

The defendant sought leave to appeal to the Divisional Court from a costs endorsement awarding the plaintiffs $190,000 on a partial indemnity basis following a successful interlocutory injunction motion.

The defendant argued the costs award was excessive and inconsistent with principles of fairness, reasonableness, and proportionality.

Applying Rule 62.02(4) of the Rules of Civil Procedure, the court considered whether there was good reason to doubt the correctness of the order and whether the proposed appeal raised matters of sufficient importance.

While most alleged errors were rejected, the court found that the unusually high quantum of costs for a one-day injunction motion raised serious concerns regarding reasonableness and proportionality.

Given the potential access to justice implications, leave to appeal the costs award was granted.

Two bus transportation companies sought an interlocutory injunction preventing a student transportation consortium from closing a request for proposals (RFP) for school bus services.

The moving parties alleged the procurement process violated directives under the Broader Public Sector Accountability Act and failed to follow Ministry guidance regarding fair competitive procurement.

Applying the three‑part test in RJR MacDonald v. Canada (Attorney General), the court held that the plaintiffs established a serious issue to be tried concerning compliance with procurement directives and fairness of the RFP process.

The court further found that the potential loss of market share and collapse of small rural bus companies constituted irreparable harm and that the balance of convenience favoured maintaining the status quo pending trial.

An interlocutory injunction was granted requiring the defendant to withdraw the RFP pending determination of the underlying action or a related expedited trial.

The applicant sought judicial review of an OMERS Appeal Sub-Committee decision that found the respondent was the common-law spouse of the deceased and entitled to his pension death benefits.

The applicant argued the tribunal breached procedural fairness and that its decision was unreasonable.

The Divisional Court held that while the tribunal's pre-hearing procedures were fair, its written reasons were too brief and conclusory to allow for meaningful review.

The court could not determine if the tribunal properly applied the legal test for common-law status or correctly placed the burden of proof.

The application for judicial review was granted and the matter remitted for a new hearing.