David Simon Altshuller

Following a trial regarding a franchise termination where both parties achieved very modest success, the parties made submissions on costs.

The plaintiffs sought over $222,000, while the defendants sought $150,000.

The court found that the parties achieved divided success, with the plaintiffs recovering an amount within the Small Claims Court jurisdiction and the defendants succeeding only on minor counterclaims.

The court ordered that both parties bear their own costs.

The plaintiff franchisee operated a pizza franchise for 17 years.

After the franchise system was sold, the new franchisor terminated the plaintiff's month-to-month franchise agreement on two days' notice following failed renewal negotiations.

The plaintiff subsequently protested outside the store, leading the franchisor to counterclaim for nuisance, defamation, trespass, and intentional interference with economic relations.

The court held that the franchisor was entitled to terminate the agreement but failed to provide reasonable notice, awarding the plaintiff $10,000.

The court dismissed the franchisor's counterclaims for nuisance, defamation, and interference, finding the protests were largely peaceful and the statements were either justified or fair comment, but awarded $100 in nominal damages for a minor trespass involving gluing posters to the store windows.

The plaintiff, Lazy Dolphin Development Inc., sought and was granted default judgment against the defendant, Senthilruban Pathmanathan, for failing to close a real estate transaction.

The court reviewed the basis for liability and the calculation of damages, including the effect of an amendment to the purchase agreement, the resale of the property, and the appropriate date for interest calculation.

The court awarded damages, legal fees, commission, and interest, and clarified the principles for assessing damages and interest in the context of failed real estate transactions.

This endorsement addresses the costs of an unsuccessful motion for summary judgment brought by the Plaintiffs against the Defendant David Ryan.

The Defendant sought partial indemnity costs of over $100,000.

The Plaintiffs argued for costs to be reserved to the trial judge or fixed at $25,000, asserting that much of the work done for the motion would be reusable at trial.

The court found that the Plaintiffs should have realized the case was not suitable for summary judgment and that a significant portion of the work would not be reusable.

The court awarded the Defendant $60,000 in all-inclusive costs, payable within 30 days, but reserved the issue of expert report disbursements to the trial judge, acknowledging their potential reusability.

The plaintiffs, J.M.L. Holding Corporation and Gary Muchula, sought summary judgment against their former real estate solicitor, David Ryan, alleging professional negligence.

They claimed Mr. Ryan's conduct led to the erroneous sale of a waterfront property they did not intend to sell, seeking $550,000 in damages.

The court dismissed the motion, finding that the case presented genuine issues requiring a trial, including significant credibility and reliability issues between the parties, conflicting expert opinions on the standard of care and damages, and an incomplete evidentiary record, particularly regarding the buyer's perspective and the plaintiffs' intentions for the property.

The applicants were successful in an application to disqualify an arbitrator and sought partial indemnity costs of $21,411.22.

The respondents argued the amount was too high and proposed $8,761.96, noting the brief hearing.

The court found the applicants' proposed amount was within the norm for a short but legally significant application.

The court exercised its discretion to award the applicants costs in the rounded amount of $21,400, inclusive of fees, disbursements, and HST.

The applicants sought the appointment of a new arbitrator for a second arbitration concerning franchise agreements, while the respondents sought to re-appoint the arbitrator from the first arbitration.

The applicants objected on the basis of a reasonable apprehension of bias, as the arbitrator had made adverse credibility findings against them in the first proceeding.

The respondents argued the original arbitrator was best positioned to determine if the new claims were res judicata.

The court declined to appoint the original arbitrator, finding that relying on his private notes from the first arbitration would violate deliberative secrecy and that the interpretation of his prior award must be done objectively by a new decision-maker.

The court appointed a retired judge as the new arbitrator.

Following the dismissal of the plaintiff's motion for injunctive relief, the successful defendants sought costs on a substantial indemnity basis.

The plaintiff argued that the defendants' costs were excessive and that their conduct warranted a denial of costs.

The court found that while the plaintiff's motion was ill-conceived, its conduct was not reprehensible enough to justify elevated costs.

Applying the factors under Rule 57.01, the court awarded the defendants partial indemnity costs in the amount of $50,995.12.

The plaintiff, Lightbox Enterprises Ltd., moved for interlocutory injunctive orders against the defendant, 2708227 Ontario Inc., concerning their business relationship involving retail cannabis stores.

Lightbox alleged breach of license and service agreements and misuse of confidential information and trademarks ("Dutch Love""Hobo Cannabis"). 2708227 Ontario Inc. counter-claimed, asserting the relationship was a franchise governed by the Arthur Wishart Act and that Lightbox failed to provide disclosure, entitling 2708227 Ontario Inc. to rescind the agreements.

The court dismissed Lightbox's motion for injunctive relief, finding no contractual basis for the primary relief sought, insufficient evidence to establish a strong prima facie case for breach of confidence, no irreparable harm, and that the balance of convenience favored the defendant.

The defendants (Franchisor Group) brought a motion for a collective security for costs order against three corporate plaintiffs (Franchisees) involved in related but unconsolidated actions, seeking a global payment of $597,427.32.

The court dismissed the motion, finding no legal basis under Rule 56.01 for a collective security for costs order against plaintiffs in separate actions.

The court also declined to grant alternative relief (separate security orders) under the "basket clause" of the notice of motion, citing procedural unfairness due to lack of proper notice and the arbitrary nature of quantifying security without a detailed breakdown of costs per action.

This decision addresses two motions brought by the Defendants to compel answers to refusals arising from examinations for discovery and cross-examinations on affidavits filed for a security for costs motion.

The court provided guidance on the scope of cross-examination on affidavits, particularly concerning the financial disclosure obligations of shareholders of corporate plaintiffs claiming impecuniosity.

The Master made specific rulings on numerous disputed refusals, balancing relevance and proportionality, and ordered the Shareholders to provide additional information and documents, while adjourning the discovery refusals motion.

The plaintiffs, a group of affiliated wine manufacturers and retailers, brought an action against the LCBO, the AGCO, and the Crown challenging the 'Made Policy', which regulates where wineries can sell their products.

The parties brought six competing motions, including motions to strike pleadings, motions for summary judgment, and a motion regarding the late disclosure of a tolling agreement between the defendants.

The court dismissed the plaintiffs' motion to strike the defendants' pleadings over the tolling agreement, finding it did not alter the expected adversarial landscape.

The court struck significant portions of the plaintiffs' statement of claim against the LCBO and AGCO, particularly allegations relating to pre-2001 conduct that had been settled in prior litigation, and claims for intentional interference with economic relations.

The Crown's motion for summary judgment was granted, dismissing the action against it.

The AGCO's and the plaintiffs' respective motions for summary judgment were dismissed, as the complex factual matrix and allegations of bad faith required a trial.

The plaintiffs appealed an order of a Master upholding numerous refusals made during Rule 39.03 examinations of non-party witnesses.

The examinations related to interlocutory motions concerning the late disclosure of a tolling agreement between the defendants.

The plaintiffs alleged 14 errors of fact and law, primarily challenging the Master's findings on litigation privilege, common interest privilege, and the scope of permissible questions for Rule 39.03 witnesses.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding errors of fact or errors of law, and affirming that the documents and communications surrounding the tolling agreement were protected by privilege.

Giuseppe Paolo Magnotta died intestate, survived by his wife, Melissa Magnotta (Applicant), and his mother, Rossana Magnotta (Respondent).

Melissa applied for a Certificate of Appointment of Estate Trustee without a Will.

Rossana objected, initially citing Melissa's alleged threat to exhume the deceased's remains and misrepresentation of estate liabilities, and sought a neutral third-party trustee.

The court found Rossana's objections unreasonable, as Melissa was the sole beneficiary and her "threat" to exhume was not acted upon.

Rossana's claim of a financial interest as a creditor for funeral expenses was also deemed insufficient to grant standing under Rule 75.03, as creditors have other remedies.

The court granted Melissa's application, dispensed with the administration bond, and awarded Melissa partial indemnity costs against Rossana.

The Plaintiffs moved to appoint Janina Gal as litigation guardian for Andrzej Gal, who was mentally incapable.

The Defendants opposed, arguing Janina had an adverse interest and was not indifferent to the outcome.

The court found Janina had a conflict of interest, as the litigation's success would result in properties forming part of Andrew's estate, which would then be transferred solely to Janina under Andrew's will, conflicting with Andrew's stated intention to divide properties equally among his daughters.

Furthermore, Janina was not indifferent to the outcome, as she stood to gain financially and had an acrimonious relationship with another daughter involved in the dispute.

The motion to appoint Janina as litigation guardian was dismissed, and the Plaintiffs were ordered to appoint a new, unconflicted litigation guardian or move to appoint the Public Trustee and Guardian.

The plaintiff real estate brokerage brought a motion for summary judgment seeking $187,500 in commission from the defendant for an alleged breach of a Buyer Representation Agreement.

The defendant opposed the motion and maintained a counterclaim for damages, alleging the agreement was incomplete when signed and backdated.

The court found significant contradictory evidence regarding the execution and terms of the agreement, concluding there were genuine issues requiring a trial.

The motion for summary judgment was dismissed, as the use of enhanced fact-finding powers would not be in the interests of justice.

The plaintiff, Azmoon Trading Inc., sought to alter a previous costs award in favour of the defendants, Caffe Demetre Franchising Corp. et al., following the dismissal of an injunction motion.

Azmoon Trading argued that costs should be borne by each party due to similar incurred costs and ongoing litigation, and challenged specific disbursements related to the defendants' counsel retaining lawyers from London, Ontario.

The court confirmed the original costs award of $41,670.61 to Caffe Demetre, finding that the successful party is presumptively entitled to costs, and that retaining counsel from a different municipality, even if it incurs additional travel disbursements, is generally permissible and reasonable if the overall costs are fair.

Following the dismissal of the plaintiff's motion for an injunction to prevent the termination of its franchise, the defendants sought their costs.

The court reviewed the parties' offers to settle and the defendants' cost outline.

Finding the time spent and rates charged to be reasonable, the court awarded the defendants their partial indemnity costs fixed at $41,670.61.

The plaintiff franchisee sought an interlocutory injunction to prevent the defendant franchisor from acting on a notice terminating the franchise agreement.

The termination followed a dispute over the scope and cost of renovations required for a final five-year renewal.

Applying the RJR McDonald test, the court found a serious issue to be tried but concluded the franchisee failed to establish irreparable harm, as damages would be an adequate remedy and the franchise term was nearing its absolute end.

The balance of convenience also favoured the franchisor, partly because the franchisee failed to provide an undertaking as to damages.

The motion for an interlocutory injunction was dismissed.

On appeal from a motion judge's decision, the franchisor appealed the finding that the franchise agreement had been validly rescinded under section 6(2) of the Arthur Wishart Act (Franchise Disclosure), 2000, and the dismissal of its cross-motion for damages.

The franchisee cross-appealed certain ancillary issues.

The Court of Appeal found in favour of the franchisor on all issues.

This costs endorsement addresses the allocation of costs for both the underlying motions for summary judgment and the appeal.