David M. Brown

In a Commercial List proceeding involving allegations of fraudulent client statements and failure to supervise a securities representative, the court addressed repeated failures by the parties to comply with procedural timetables and case management orders.

The action had been scheduled twice for summary judgment but the parties failed to complete materials and examinations.

The court previously directed the matter to proceed as a hybrid trial with affidavit evidence-in-chief and cross‑examination at trial, but a self‑represented defendant failed to comply with orders to deliver evidence and served a deficient statement of defence consisting of a blanket denial.

At a further case management attendance, the court declined to make additional procedural orders and instead required the parties to choose between continuing under the hybrid trial timetable on the Commercial List or pursuing conventional discovery under the Rules of Civil Procedure, in which case the matter would be transferred to the Civil List.

Following the dismissal of the plaintiffs' action, the court assessed the costs payable to the successful defendants on a substantial indemnity basis.

The plaintiffs had settled costs with the Accountant Defendants for $550,000.

The court reviewed the bills of costs submitted by the Lawyer Defendants, the Katz Defendants, and the Leikin Group Inc. The court made several reductions to the amounts claimed, noting issues with top-heavy staffing, excessive time spent on documentary discovery, and duplication of effort.

The court ultimately awarded substantial indemnity costs totaling $2,340,485.75 across the three remaining sets of defendants.

Following a prior decision staying the action on terms, the court determined the issue of costs arising from interlocutory motions on the Commercial List concerning enforcement of a foreign judgment and jurisdiction over the defendants.

The moving party defendants sought substantial partial indemnity costs after obtaining a stay.

The court reviewed the principles governing costs under Rule 57 of the Rules of Civil Procedure and the proportionality principle, as well as appellate guidance that costs should be fair and reasonable rather than a full indemnity of actual expenses.

Although the defendants obtained a stay, the court held that the substantive success on the motion was mixed, as the plaintiffs succeeded on the jurisdiction issue while failing on the asset‑exigibility argument.

Given the mixed success and the novelty of the jurisdiction and service ex juris issues, the court ordered that no costs be payable by any party.

Following dismissal of two applications involving a dispute between dental professional corporations and issues arising from arbitration decisions and lease forfeiture, the court determined costs.

The applicant had sought leave to appeal arbitral decisions and relief from forfeiture of a lease but was unsuccessful.

The court applied Rule 57 and proportionality principles in fixing fair and reasonable costs rather than simply awarding actual costs incurred.

Partial indemnity costs were awarded to the respondent corporation for both applications, while the landlord respondent received substantial indemnity costs due to contractual indemnification provisions and the applicant’s conduct in unnecessarily involving the landlord.

Costs were fixed with reductions to claimed hours where the court found the time excessive.

The plaintiff condominium corporation sought leave to discontinue its action against a former employee defendant without costs, or alternatively with modest costs, following settlement of related litigation arising from a large fraud scheme.

The responding defendant sought costs exceeding $50,000.

The court applied Rule 23.05 of the Rules of Civil Procedure and the 'justified action test' governing costs on discontinuance.

While the plaintiff had a bona fide basis to commence the action because the defendant’s name appeared on loan documents, the defendant incurred some legal expenses in defending the claim.

The court rejected the majority of the claimed costs due to questionable docketing practices and excessive billing, and awarded partial indemnity costs of $5,000 as a condition of discontinuance.

Following a civil jury trial dismissing a medical malpractice claim, the successful defendant sought partial indemnity costs exceeding $74,000.

The court assessed costs under Rule 57 of the Rules of Civil Procedure and the principles of fairness, reasonableness, and proportionality articulated by the Court of Appeal.

While the court accepted the reasonableness of senior counsel’s rates and most claimed hours, it reduced mediation costs and limited recovery for junior counsel’s trial preparation and attendance where the work resembled tasks that could have been performed by a law clerk.

The court emphasized that training junior counsel should not be funded by the opposing party through costs awards.

Total costs were fixed at $55,437.84 inclusive of fees, HST, and disbursements.

Members of a Sikh temple incorporated under the Ontario Corporations Act brought an action challenging the admission of 23 new members and the election of directors following a disputed board meeting and special members’ meeting.

The court found that the board meeting at which the new members were admitted had been convened using misleading notice and that opposing directors had been led to believe the meeting would not occur due to mediation efforts.

The admission of the new members was therefore conducted in bad faith and declared null and void.

Because those members participated in a subsequent members’ meeting, quorum was lacking and the election of directors and subsequent board appointments were also invalid.

The court issued extensive declaratory relief restoring the prior membership and board composition and ordered governance reforms, including a monitor, audits, training, and conditions before a court‑ordered members’ meeting could be held.

In receivership proceedings brought in aid of execution against a judgment debtor, the court considered a motion by the court-appointed receiver for directions regarding enforcement steps and the disposition of certain assets.

The receiver sought approval to sell the debtor’s interest in a jointly owned matrimonial home under the Partition Act, clarification regarding ownership of a cottage property, compliance with outstanding information requests, and approval of the receiver’s reports.

The court held that the spouse opposing sale failed to demonstrate circumstances of oppression, malice, or vexatious intent that would justify refusing the statutory right to partition or sale.

The court ordered the sale of the debtor’s interest in the matrimonial home, directed the parties to provide requested information to the receiver, scheduled a hearing regarding ownership of the cottage and related indebtedness issues, and approved the receiver’s reports.

The trustee in bankruptcy sought an order under s. 164 of the Bankruptcy and Insolvency Act compelling a telecommunications provider to produce email and cellphone records allegedly connected to a third party who may have had knowledge of a fraudulent financial statement used to obtain bank financing.

The court held that while stored emails and phone records can constitute “documents” within s. 164, the trustee must demonstrate a sufficient connection between the requested records and the bankrupt’s dealings or property.

The evidence did not establish a sufficient link between the requested email account and the relevant individual, and the request for phone records was overly broad.

Limited relief was granted requiring disclosure of subscriber information for a specific phone number referenced in a fraudulent email, and the provider was ordered to preserve relevant records pending further order.

In a Commercial List case conference, the court addressed procedural issues arising during case management of complex banking litigation.

A related action commenced by another party against the plaintiff bank had not been disclosed at an earlier case conference, prompting the court to require an explanation and direct counsel to attend a further appointment to address potential motions and case coordination.

The court also addressed discovery disputes, including requests to examine additional representatives and disagreements about whether discovery rights had been exhausted.

Timetables were set for written motion materials regarding discovery disputes, interrogatories, expert reports, and a forensic accounting report.

The court emphasized the importance of transparency in case management and minimizing interlocutory motions in complex litigation.

Following the abandonment of a motion by the bankrupt seeking annulment of her bankruptcy, secured creditors sought substantial indemnity costs against the bankrupt, her husband, and her counsel.

The court held that under Rule 37.09(3) of the Rules of Civil Procedure, responding parties are presumptively entitled to costs where a motion is abandoned unless good cause exists to order otherwise.

No such cause was established, as the evidence showed the motion lacked merit and was withdrawn after cross‑examination revealed the evidence would not support annulment.

However, the court declined to impose costs against the husband or counsel, finding insufficient evidence that they caused unnecessary costs or acted improperly.

Partial indemnity costs were awarded against the bankrupt in amounts the court found fair and proportionate.

In CCAA restructuring proceedings, the applicants sought court approval of a liquidation agreement to close and liquidate inventory at 62 underperforming retail store locations.

The liquidation process involved a competitive solicitation of liquidators, review of bids, and negotiation of an agency agreement providing a minimum guaranteed recovery and a distribution waterfall administered through a monitor-controlled trust account.

Secured creditors supported the proposed transaction and the monitor concluded the solicitation process was fair and produced the most favourable economic outcome.

Applying s. 36 of the Companies’ Creditors Arrangement Act, the court held that the disposition process was reasonable and that the consideration offered by the selected liquidator was superior to competing bids.

The court approved the liquidation agreement and related relief.

The applicant sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision that denied her entitlement to loss of earnings benefits due to her failure to accept offers of modified duties from her employer.

The applicant argued she was not given proper notice of the possible permanent termination of her benefits.

The Divisional Court found that the Tribunal's decision was reasonable, as there was ample evidence supporting the finding of notice and the applicant's capability to perform modified work.

The application for judicial review was dismissed.

During a civil medical malpractice jury trial, the plaintiff sought to read portions of the defendant physician’s examination for discovery relating to pre-surgery discussions about the desired breast size following cosmetic surgery.

The defendant requested that additional portions of the discovery transcript also be read in pursuant to Rule 31.11(3) of the Rules of Civil Procedure, arguing they qualified or explained the plaintiff’s selected excerpts.

The court reviewed the purpose and scope of Rule 31.11(3) and the jurisprudence governing qualifying read-ins.

The court held that additional discovery evidence may be compelled where necessary to prevent the trier of fact from being misled by partial admissions or incomplete answers.

Because the additional answers addressed the same issue and could qualify the earlier discovery evidence, the court directed that both sets of questions and answers be read to the jury.

The tenant appealed a Landlord and Tenant Board decision granting the landlord's application to terminate the tenancy for personal use.

The tenant argued the Board erred in finding good faith and that the affidavit required by s. 72 of the Residential Tenancies Act should have been sworn by the landlord's son.

The Divisional Court dismissed the appeal, holding that the good faith finding was a question of fact not subject to appeal, and that the landlord's affidavit was sufficient as he required the unit for his personal use along with his family.

A court-appointed receiver-in-aid-of-execution sought an advance order immunizing it from personal liability for costs in litigation intended to recover assets allegedly concealed by the judgment debtor through family members, corporations, and third parties.

The receiver argued that the receivership estate lacked sufficient assets to cover potential adverse costs and that denying immunity would prevent the recovery action from proceeding, undermining access to justice.

The court reaffirmed the general rule that receivers and trustees who initiate litigation do so at their own risk unless indemnified by estate assets or creditors.

The proposed undertaking by the judgment creditor was found insufficient and unsupported by evidence of financial capacity.

The court held that the case did not present exceptional circumstances warranting a departure from the “loser pays” principle and refused to create a novel category of advance cost immunity orders.

Following a successful summary judgment motion dismissing the action against a financial institution, the court determined the appropriate costs award.

The moving party sought substantial indemnity costs based on the plaintiff’s refusal to accept a pre‑motion settlement offer and her failure to respond to the motion with evidence or argument.

The court found the plaintiff’s litigation conduct reprehensible, noting she lacked standing to sue, advanced a claim without merit, ignored a reasonable settlement offer, and forced the defendant to incur unnecessary litigation expenses.

Applying the principles under Rules 57 and 1.04 and the guidance in appellate authorities, the court concluded that substantial indemnity costs were warranted but reduced the claimed hours to a reasonable amount.

Costs were fixed at $14,300 inclusive of taxes and disbursements.

Following a receivership motion concerning access to business records, the court addressed costs.

The moving party had substantially succeeded in enforcing provisions of an Appointment Order requiring delivery and access to records, including a valuation model and database used in the debtor’s business.

The court held that disputes regarding ownership of those materials were irrelevant to whether they constituted “Records” under the Appointment Order.

The responding corporate entity and an individual who hindered the receiver’s access were held jointly and severally liable for partial indemnity costs.

Costs of $10,682.81 were awarded to the party funding the receivership.

Following earlier reasons ordering the court-supervised sale of several properties after a hybrid trial, the court addressed costs.

The applicants sought partial indemnity costs against various respondents across two related applications.

The court found the applicants had substantially succeeded but determined that the record did not allow proper allocation of costs between the two proceedings.

Accordingly, the court referred the costs of both applications to an assessment officer under Rule 57.01(3.1) of the Rules of Civil Procedure, with directions regarding which respondents could be liable and limiting recovery to litigation-related expenses.

Following reasons granting the appointment of a receiver in aid of execution over a judgment debtor’s assets, the court determined costs of the motion.

The moving party sought full indemnity costs against the debtor and another respondent.

The court held that elevated costs were justified against the debtor because his conduct—including obstructing enforcement of the judgment, withholding financial information, colluding with others, and using corporate structures to avoid payment—constituted reprehensible behaviour aimed at frustrating enforcement.

However, no costs were ordered against another respondent who had not opposed the receivership application and whose asserted security interest remained to be determined.

Substantial indemnity costs of $53,126.62 were awarded against the judgment debtor.