David Chernos

The court fixed costs following trial in favour of Kingsdale Partners LP, the successful party, in the amount of $475,000.00 on a partial indemnity basis.

The decision reviews the factors relevant to the exercise of discretion under section 131 of the Courts of Justice Act and Rule 57.01, including the complexity of the litigation, the conduct of the parties, and the reasonableness of the costs claimed.

The court reduced the amount sought due to concerns about duplication of work and high hourly rates, but found the overall claim proportionate to the litigation and the parties' resources.

The court considered whether Kingsdale Partners LP was entitled to a success fee from Sprott Asset Management LP under an engagement agreement relating to Sprott’s acquisition of Central Fund of Canada Ltd. (CFCL).

The court found that the agreement was not limited to a single strategy and was not terminated prior to Sprott’s acquisition of CFCL’s assets.

The court held that Kingsdale was entitled to the success fee and an additional management fee, rejecting Sprott’s arguments that the fee was not triggered or should be de minimis due to the structure of the transaction.

The Court of Appeal heard motions to quash an appeal from a trial judge's order approving a sale process for a family business.

The court found the approval order to be interlocutory, serving as a mechanism to implement remedies from the trial judgment, and thus not determining substantive issues.

The correct appeal route for such an order is to the Divisional Court with leave.

Consequently, the motions to quash the appeal were allowed, and the appellants were granted an extension to seek leave to appeal to the Divisional Court.

This costs endorsement followed grouped appeals concerning a wind-up order.

The appeals brought by Mark Libfeld and Corey Libfeld regarding the exclusion of the Shanontown transaction were unsuccessful.

The appeals brought by Jay Libfeld and Sheldon Libfeld concerning a procedural provision in the wind-up order were successful.

Consequently, Jay Libfeld and Sheldon Libfeld were entitled to costs from Mark Libfeld and Corey Libfeld.

The court found the amounts sought by Jay and Sheldon to be excessive due to duplication of materials and disproportionality to the necessary work for the appeals, and ordered a reduced costs schedule.

The applicants, daughters of the respondent, sought a declaration that their father's transfer of his interest in a $4.3 million mortgage to a family trust was a valid gift.

The father argued he lacked donative intent, believing he controlled and was a beneficiary of the trust, and alternatively claimed his daughters unduly influenced him.

The court found the father had donative intent, understanding the estate freeze and trust terms after receiving independent legal and accounting advice.

The court also found no undue influence, as the father acted freely and the daughters were not in a position to dominate his will.

The transfer was upheld as a valid gift.

The applicant brought a motion to appoint replacement estate trustees for the estate of her late husband, following the resignation of the previous trustees amidst a highly fractious family dispute.

The applicant sought the appointment of three family members, while the responding parties sought the appointment of a neutral third party, either Scotiatrust or a senior lawyer.

The court found that the extreme animosity between the two family camps necessitated a neutral institutional trustee to prevent further litigation and ensure the estate's administration.

Scotiatrust was appointed as the Estate Trustee During Litigation.

The four Libfeld brothers, equal owners of The Conservatory Group (a multi-billion dollar real estate development business), experienced a complete and irreparable breakdown of their personal and professional relationships.

The applicants sought various remedies including a restructuring protocol or a restricted wind-up, while the respondents sought a buy-sell process or a structured buyout.

The court found no actionable oppression by any party, attributing the disputes to extreme mutual dysfunction.

Concluding that the brothers could no longer work together and that none of their proposed remedies were workable or fair, the court ordered a court-supervised wind-up and sale of the business under the OBCA and Partnerships Act, permitting all brothers to participate as bidders.

The four Libfeld brothers, equal owners of The Conservatory Group (a multi-billion dollar real estate development business), experienced a complete and irreparable breakdown of their personal and professional relationships.

The applicants sought various remedies including a restructuring protocol or a restricted wind-up, while the respondents sought a buy-sell process or a structured buyout.

The court found no actionable oppression by any party, attributing the disputes to extreme mutual dysfunction.

Concluding that the brothers could no longer work together and that none of their proposed remedies were workable or fair, the court ordered a court-supervised wind-up and sale of the business under the OBCA and Partnerships Act, permitting all brothers to participate as bidders.

Inzola Group Limited appealed a trial decision dismissing its claims for breach of contract and bias against the City of Brampton regarding a multi-million-dollar construction Request for Proposals (RFP).

Inzola was disqualified for breaching RFP terms, including failing to sign a confidentiality agreement, communicating outside the sole point of contact, and making public disclosures to the media.

The Court of Appeal upheld the trial judge's findings that Inzola's breaches were fundamental and threatened the integrity of the RFP process.

The court also rejected Inzola's argument that the City breached a duty of fair and equal treatment by handling a different alleged breach by another bidder (Dominus) differently, finding Dominus's breach inconsequential compared to Inzola's.

The appeal on liability was dismissed, and leave to appeal costs was denied.

In an ongoing estate dispute between a widow and her children, the applicant widow brought a motion to add two corporate parties, admit a late affidavit regarding her health, substitute written interrogatories for oral cross-examination, and determine the scope of cross-examination.

The court added the corporate parties, finding one to be a necessary party.

The court admitted the late affidavit but excluded the attached medical reports as inadmissible hearsay.

The court declined to dispense with oral cross-examination, finding insufficient evidence of serious harm, but ordered specific accommodations for the 93-year-old applicant.

Finally, the court limited the scope of cross-examination to the three issues previously deemed urgent to conserve judicial resources.

Following a 38-day trial where the plaintiff's claim was dismissed, the successful defendant sought costs of over $2.2 million on a partial indemnity basis, but argued for substantial indemnity costs from the date the plaintiff amended its pleadings to allege bias and conspiracy.

The court denied substantial indemnity costs, finding the plaintiff's allegations were not made recklessly or without evidentiary foundation.

The court upheld the defendant's significant e-discovery disbursements as reasonable but ordered the defendant to produce redacted dockets for the plaintiff's review before finalizing the fee award.

The plaintiff, a construction company, sued the defendant municipality after being disqualified from a Request for Proposals (RFP) process for a City Hall expansion.

The plaintiff alleged that the municipality acted in bad faith and with bias when it disqualified the plaintiff for refusing to sign a confidentiality agreement and for communicating directly with City Council.

The Superior Court of Justice dismissed the action, finding that the plaintiff had breached the clear terms of the RFP and that the municipality's decision to disqualify the plaintiff was fair, made in good faith, and based on the advice of an independent fairness advisor.

The court also held that even if the municipality had breached the RFP, the plaintiff would only be entitled to reliance damages, not expectation damages for lost profits.

The appellant appealed a trial judgment finding him liable for payments under a family agreement.

The respondent estate cross-appealed the dismissal of its claim for return of a $13 million payment characterized as a gift.

The appellant argued that an oral agreement made after the family agreement was signed should be enforceable and would excuse his payment obligations.

The court upheld the trial judge's finding that the oral agreement preceded the family agreement and was therefore superseded by its integration clause.

The court also upheld the finding that the $13 million was a valid gift with no resulting trust.

Both the appeal and cross-appeal were dismissed with no costs awarded.

This costs endorsement followed a motion with divided success.

The applicant succeeded on minor issues (dismissing a sealing order motion), while the respondent succeeded on the major issue (establishing privilege over documents and obtaining an order for their delivery/destruction).

The court found the major issue occupied significantly more time.

Applying Family Law Rule 24(6), the court apportioned costs, awarding them to the respondent due to greater success on the major issue.

The applicant's failure to provide a costs outline, while criticizing the respondent's counsel's time investment, was noted as an 'attack in the air'.

The respondent's costs outline was deemed reasonable given the complexity and effort involved.

The applicant was ordered to pay the respondent $81,275.65 in costs.

The respondent, Eli Dadouch, brought a motion seeking the return and destruction of solicitor-client privileged notes surreptitiously photographed by the applicant, Anita Bielak, and for orders sealing the court file and restraining the applicant from discussing the litigation with their adult children.

The court found the notes to be privileged and ordered their return and destruction.

However, the court dismissed the requests for a sealing order and a gag order, emphasizing the principle of open courts and the impracticality of such an order given the adult children's awareness and the need for therapeutic, not legal, intervention for their distress.

The defendant, The Corporation of the City of Brampton, brought a summary judgment motion seeking to dismiss the plaintiff's action, but later abandoned it.

The plaintiff, Inzola Group Limited, sought costs for the abandoned motion on a substantial indemnity basis.

The court found the plaintiff was entitled to partial indemnity costs for the period up to September 2016 and substantial indemnity costs for the period between September and November 2016, concluding that the defendant acted unreasonably in delaying the abandonment of the motion after critical evidence emerged.

The court fixed the total costs payable by the defendant to the plaintiff.

The plaintiffs in two related actions brought motions for the production of information by the corporate defendants under the Business Corporations Act.

The parties settled the motions 'except for costs' and filed written costs submissions.

The plaintiffs sought substantial indemnity costs, arguing the motions were unnecessary as the defendants ultimately consented to the relief sought.

The court declined to award costs, holding that costs generally should not be awarded when parties settle 'except for costs.' The court reasoned that determining costs in such circumstances would require a hypothetical adjudication of the merits, which is an inefficient use of judicial resources and runs counter to the principle that costs are an incident of the determination of rights, not the subject matter of the dispute itself.

The parties contacted the court following the release of the Reasons for Judgment to advise that the consent damages calculation of $2,214,895.00 inadvertently omitted a one-time payment of $562,000.00.

The court issued an addendum amending the damages awarded to the plaintiffs to $2,776,895.00.

The deceased, Albert Latner, commenced two actions against his son Joshua and Joshua's company.

The first action sought payments owed under a written support agreement.

The second action sought the return of a $13 million payment, claiming it was held on a resulting trust.

The estate continued the actions after Albert's death.

The court allowed the first action, finding that an alleged oral waiver of the support payments violated the parol evidence rule and the agreement's entire agreement clause.

The court dismissed the second action, finding that the defendants successfully rebutted the presumption of resulting trust by proving the $13 million was intended as a gift to equalize financial treatment among the children.

The plaintiff employer brought a motion under Rule 49.09(a) of the Rules of Civil Procedure seeking judgment enforcing a settlement allegedly reached through email exchanges with a former employee.

The dispute concerned whether the parties had agreed to a settlement and, if so, the scope of an IT consultant’s work to delete and certify the destruction of confidential electronic information taken by the employee prior to departure.

The court held that the parties had reached a binding settlement through their email correspondence, despite subsequent disagreement when counsel attempted to draft formal minutes of settlement.

Interpreting the emails objectively, the court concluded the parties had agreed to the employee’s proposed process for wiping devices, but using the employer’s chosen IT consultant at the employee’s cost.

The employer’s later insistence on a broader “full sweep” did not amount to repudiation of the settlement.

Judgment was granted enforcing the settlement on the terms determined by the court.