David A. Weisman

This appeal arose from a long-standing, high-conflict family law dispute.

The appellants challenged a motion judge's order that clarified spousal support obligations, addressed the impact of bankruptcy on an equalization payment secured by a letter of credit, and apportioned trial costs.

The Court of Appeal dismissed the appeal, affirming the motion judge's clarifications that periodic support continued due to the husband's failure to exercise a lump sum option, that the letter of credit securing equalization and support created an equitable trust not extinguished by bankruptcy, and that the allocation of trial costs was appropriate.

The appellants appealed a trial judgment finding them jointly and severally liable for breach of contract for non-payment of a real estate commission.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that a binding contract for commission was formed, that the action was not barred by the Real Estate and Business Brokers Act, 2002, and that the corporate and individual appellants were jointly and severally liable as parties to the contract.

This is a costs endorsement following an appeal from a trial judgment.

The Court of Appeal, having previously issued reasons on May 27, 2019, invited the parties to make submissions regarding the costs of the trial.

After reviewing the parties' written submissions, the court ordered that the appellant Buckingham Properties Inc. pay to the respondent Pita Royale Inc. o/a Aroma Taste of the Middle East its costs of the trial in the all-inclusive amount of $27,500.

Appeal from a trial judgment concerning improper termination of a commercial restaurant lease and illegal distraint of chattels.

The trial judge found the lease termination proper but the distraint illegal, awarding conversion damages of $58,190.74, punitive damages of $10,000, and costs.

The appellate court allowed the appeal in part, reducing conversion damages to $18,539.71 after careful analysis of which items were properly subject to distraint, upheld the punitive damages award, set aside personal liability of the corporate principal, and remitted the costs issue for written submissions.

The respondent in a family law application was successful in a motion to question two non-parties regarding the applicant's alleged beneficial ownership of a property.

The respondent sought costs of the motion against the non-parties.

The court noted that costs against non-parties are only awarded in unusual circumstances, such as fraud or abuse of process.

Because the allegations of fraud against the non-parties remained unsubstantiated, the court reserved the issue of costs to the trial judge who will ultimately resolve the fraud allegations.

The plaintiffs, having been wholly successful in their breach of contract action for a real estate commission, sought substantial indemnity costs from the date of their offer to settle and full indemnity costs based on the defendants' bad faith.

The defendants conceded entitlement to partial indemnity costs to the offer date and substantial indemnity thereafter but challenged the quantum and the claim for full indemnity.

The court, applying Rule 57.01 factors and the principle of proportionality, found the plaintiffs' claimed hours to be disproportionate to the complexity and duration of the four-day trial.

Full indemnity costs were denied as the defendants' conduct during litigation did not meet the threshold for reprehensible behavior.

The court significantly reduced the claimed hours for various litigation stages and fixed the plaintiffs' costs at $191,500 plus HST for fees and $6,850.43 plus HST for disbursements, along with prejudgment interest.

This case involved a real estate commission dispute where the plaintiffs, Hurst Real Estate Service Inc. and DTZ Canada Inc., sought a 5% commission on the sale of a commercial property.

The court found that a binding contract was formed between the real estate agent, David Hurst, and the defendant Sam Sadr/Great Lands Corporation, entitling the plaintiffs to the commission.

The defendants' technical defenses, including the absence of a signed commission agreement and arguments under the Real Estate and Business Brokers Act, 2002, were rejected.

The court also found Sam Sadr personally liable for inducing the breach of contract and for being a party to the agreement.

The plaintiff, Otomic Contractors Ltd., sought partial indemnity costs after successfully claiming damages and upholding a construction lien in a four-and-a-half-day trial.

The defendant, Royal 7 Developments Ltd., opposed the plaintiff's claim for $120,902.32, arguing over-preparation and an excessive hourly rate.

The court, applying principles of judicial discretion, reasonableness, and proportionality under the Courts of Justice Act and Rules of Civil Procedure, found the plaintiff's requested hours disproportionately high.

The court awarded the plaintiff $75,000 in fees plus HST and disbursements, totaling $94,724.74 after a credit for a prior costs award.

Otomic Contractors Ltd. (Otomic), an excavating contractor, sued Royal 7 Developments Ltd. (Royal 7), a property owner and developer, for $217,945.74 in unpaid excavation work on a multi-phased condominium project and sought a construction lien.

Royal 7 counterclaimed for $273,700.31, alleging Otomic failed to complete work and overcharged for volumes, forcing Royal 7 to hire a related company, Toocor Ltd., to finish.

The court found that Otomic's truck count method for billing was reasonable and accepted, and that Royal 7's payments had become slow and holdbacks unpaid, leading to the breakdown.

The court dismissed Royal 7's counterclaim, finding no overcharge and that Otomic was not responsible for Toocor's costs due to the non-arm's length relationship and Royal 7's failure to formally terminate or request Otomic's return.

The court granted Otomic's claim for $217,945.74 and declared its construction lien valid.

A self-represented litigant sought to continue several proceedings and requested rescission of a prior order declaring him a vexatious litigant and requiring leave before commencing or continuing proceedings.

The court refused an adjournment request based on alleged hearing difficulties after finding adequate accommodations had been provided.

The court found the applicant’s affidavit contained multiple factual inaccuracies, including misstatements about disciplinary findings and appellate rulings.

The applicant had also failed to pay numerous outstanding costs orders.

The court held that the requirements for relief under Rule 59.06 of the Rules of Civil Procedure were not met and declined to exercise discretion under s. 140(4) of the Courts of Justice Act.

The defendant moved for leave to amend its statement of defence to plead a limitation period defence and sought summary judgment dismissing the plaintiff’s claim as statute-barred.

The court granted leave to amend under Rule 26.01 of the Rules of Civil Procedure, finding no prejudice that could not be compensated by costs and that the proposed amendment raised a triable issue.

However, the court dismissed the summary judgment motion, holding that the discoverability issue under the Limitations Act, 2002 involved complex factual questions regarding nine different products purchased at different times and representations made by the defendant.

The evidentiary record did not clearly establish when the plaintiff discovered that its losses were caused by the defendant.

The limitation issue was therefore held to require determination at trial.

The respondent to a family law proceeding, previously declared a vexatious litigant subject to an order prohibiting further proceedings without leave, brought a motion seeking leave to continue or commence numerous listed proceedings across several courts.

The court reviewed the extensive procedural history, including repeated non‑compliance with prior costs orders and multiple attempts to relitigate issues already determined in consolidated family proceedings.

The moving party had also appealed the vexatious litigant order to the Court of Appeal.

The court held that, pending the appeal, the moving party should not be granted leave to pursue the additional proceedings listed in the notice of motion.

Leave was refused and costs were awarded to the responding party.

The defendant brought a motion for summary judgment in an action alleging fraud relating to the alleged obtaining of funds held on deposit with a municipal water department.

The claim involved issues of intention, knowledge, and credibility, as well as the interpretation and scope of a release executed when the parties’ business relationship ended.

Applying the guidance from the Court of Appeal regarding the summary judgment framework and the full appreciation test, the court held that credibility determinations and contextual interpretation of the release required a full evidentiary record.

The court concluded that the issues were unsuitable for summary judgment and that a trial was required.

The court further directed that the pre-trial conference and trial be expedited within the simplified procedure regime.

The commercial tenant sought an interim and interlocutory injunction restraining the landlord from terminating the tenancy and re‑entering the premises.

The tenant argued it was an over‑holding tenant on a year‑to‑year tenancy and that the landlord’s notice to quit was invalid.

Applying the RJR‑MacDonald test, the court found a serious issue for trial regarding whether the tenancy was year‑to‑year or month‑to‑month.

The court accepted that immediate eviction would cause irreparable harm by forcing closure of the tenant’s long‑standing restaurant business and loss of employment for staff.

The balance of convenience favoured maintaining the status quo, and an interim injunction was granted with conditions requiring payment of rent and additional funds into court.

A supplier sought judgment for unpaid invoices against a corporate purchaser and its principal, alleging that the principal signed a credit application containing a personal guarantee.

The individual defendant argued he believed he was signing only on behalf of the corporation and did not understand the document imposed personal liability.

The court examined the wording of the credit application and the signature line identifying the signatory as an “authorized signing officer and guarantor.” Despite doubts about oral evidence that the guarantee had been explained, the court held that the document clearly created a personal guarantee and that the signatory had sufficient opportunity to review its terms.

Judgment was granted enforcing the guarantee and awarding the plaintiff the outstanding balance plus contractual interest.