David Winer

This costs endorsement follows a successful Rule 21 motion brought by the Gordin Family Members (defendants by counterclaim) to dismiss the counterclaim against them.

The court awarded partial indemnity costs of $15,000 plus HST to the Gordin Family Members.

The court declined to award substantial indemnity costs, finding that while fraud was alleged, the conduct did not rise to the level of reprehensible behavior warranting a higher scale, especially as the allegations had not progressed beyond the pleadings stage.

The court considered the Gordin Family Members' near-total success on the motion, their Rule 49 offer, and concerns regarding potential duplication of counsel efforts in determining a fair and reasonable amount.

The Gordin Family Members, defendants by counterclaim, brought a Rule 21 motion to strike portions of the counterclaim and dismiss it against them.

The counterclaim by Residences of Springhill Inc. (RSH) alleged fraudulent misrepresentation, civil fraud, and breach of contract related to an underpayment of HST on a condominium unit sale.

The court found no reasonable cause of action against the Gordin Family Members, as the pleadings failed to establish causation for the alleged torts and the breach of contract claim was negated by RSH's admission of receiving the full purchase price including HST.

The motion was granted, and the counterclaim was dismissed against the Gordin Family Members.

The applicant condominium corporation sought to set aside an arbitration award that dismissed its claim against the respondent unit owners for allegedly breaching a Section 98 Agreement regarding renovations.

The applicant argued the award was obtained by fraud based on new evidence from former board members.

The court dismissed the application, finding the applicant failed to prove fraud, did not act with due diligence, and the new evidence would not have changed the outcome.

The court also denied leave to appeal, concluding the arbitrator's interpretation of the agreement was a question of mixed fact and law, and any legal errors would not significantly affect the parties' rights.

On appeal from a Divisional Court decision, the Court of Appeal considered whether the Ontario Municipal Board (OMB) had jurisdiction to impose a 25 percent cap on the alternative parkland dedication requirement under section 42 of the Planning Act.

The Town of Richmond Hill had adopted an Official Plan policy allowing for parkland dedication at a rate of one hectare per 300 dwelling units.

Developers challenged this policy, and the OMB imposed a 25 percent cap on the amount of land required to be conveyed.

The Divisional Court set aside the cap, finding the OMB lacked authority to impose it.

The Court of Appeal upheld this decision, holding that the legislature has given municipalities exclusive authority to determine the rate under section 42(3), subject only to the requirement that an Official Plan contain specific policies dealing with parkland provision and the use of the alternative requirement.

The OMB's role is limited to reviewing whether such policies are appropriate and accord with provincial policies, not to set or cap the rate itself.

The defendant published a report criticizing the governance and contracting practices of the Niagara Peninsula Conservation Authority.

The Authority, its former CAO, and a contractor sued the defendant for defamation.

The defendant brought a motion to dismiss the actions under the anti-SLAPP provisions of the Courts of Justice Act (s. 137.1).

The court dismissed the Authority's action, holding that a government entity cannot sue an individual for defamation.

The court dismissed the remaining plaintiffs' actions because they failed to show the defendant had no valid defence, as the expressions were made on occasions of qualified privilege without malice.

The applicant previously succeeded in an application for conversion and unjust enrichment against the respondents, including a principal towing company and its agent.

The court subsequently increased the damages award against the principal by 13% to account for taxes payable on the deemed forced sale of the converted vehicles.

The sole remaining issue was whether the agent was also liable for this 13% increase.

The court held that there was no principled basis to separate the agent's liability from that of the principal, finding the agent equally responsible for the full amount owing to the applicant.

Appeal from a motion judge's decision dismissing the appellant's claim on the basis that it was statute-barred.

The motion judge found that the appellant knew or ought to have known of the claim within the limitation period.

The appellants argued the motion judge erred in his findings regarding when the appellant became aware of the claim.

The Court of Appeal upheld the motion judge's decision, finding no error and dismissing the appeal with costs awarded to the respondent.

Following a finding of liability for conversion and unjust enrichment, one of the respondents retained new counsel and indicated an intention to move to re-open the application under Rule 59.06.

The court requested written submissions on its jurisdiction to hear the intended motion.

The court held that because no formal order had yet been taken out, it was not functus officio and retained broad jurisdiction to change its judgment.

The court directed the respondent to schedule the motion to re-open before the same judge.

The applicant and respondent, brothers, disputed their interests in a condominium.

They signed minutes of settlement for the respondent to buy out the applicant's share for $80,000.

The respondent failed to pay, leading to litigation where both sought partition and sale, but the applicant also sought enforcement of the settlement.

The respondent argued impossibility of enforcement due to the property's sale, but the court found this argument specious, noting the respondent's prior inconsistent positions and lack of ability to fund the buyout.

The court enforced the minutes of settlement, ordering the respondent to pay $80,000 from the sale proceeds.

This endorsement addresses the calculation of damages for conversion and unjust enrichment, following a prior finding of liability against the respondents.

Specifically, it determines whether damages for conversion of three vehicles should be increased to include taxes.

The court ruled that damages owed by Atlantic Towing Inc. and Chris’s Towing Inc. should be increased by 13% to account for HST or RST, as a tax liability flows from the deemed forced sale due to conversion.

The total amount owed by these two respondents is $120,440.82.

The issue of Earl Lewis's liability for taxes and a proposed motion to reopen the decision were deferred for future consideration.

The appellant appealed an Order of Monetary Penalty of $1,000 issued by the Registrar of Alcohol, Gaming and Racing for failing to clear signs of service and consumption within 45 minutes after the end of the liquor service period.

The Tribunal found the evidence of the AGCO inspectors, who observed a vodka bottle and glasses on a table at 3:01 a.m., to be more reliable than the appellant's evidence.

The Tribunal confirmed the monetary penalty, finding that the appellant breached section 29 of the Regulation.

The plaintiff sued its land planner and construction manager for professional negligence, alleging they failed to apply for a building permit before a new municipal by-law came into effect, resulting in the plaintiff paying $266,157.22 in development charges.

The defendants brought summary judgment motions arguing the claims were statute-barred.

The court granted the motions, finding that the plaintiff discovered the material facts of the claim in 2011 when it learned the charges could have been avoided with a timely permit application, making the 2015 actions out of time under the Limitations Act, 2002.

The applicant, HMI, brought a motion to refer a consolidated construction lien action, involving seventeen liens totaling over $42 million, to a single private arbitration and to stay the court proceedings.

The consolidated action was divided into three streams (A, B, C) based on contractual relationships.

The motion was opposed by various lien claimants and other parties.

The court dismissed the motion, finding that a consolidated arbitration could not be ordered due to significant conflicts in arbitration clauses across the different contracts, the inclusion of third parties who had not consented to arbitration, the failure to follow contractual dispute resolution protocols (including mediation), and potential for increased costs and delays for some parties.

The court emphasized the consensual nature of arbitration and declined to impose non-consensual amendments to contracts or stay the court action.

The moving party sought leave to admit an affidavit on its pending motion for leave to appeal.

The court dismissed the motion, finding that the points raised in the affidavit regarding the public importance of the issues could be made by counsel without the affidavit, that other municipalities had already been granted leave to intervene, and that the remaining aspects of the affidavit contained inadmissible opinion evidence.

Costs of $5,000 were awarded to the responding parties.

The Town of Richmond Hill sought leave to appeal an Ontario Municipal Board decision imposing a cap on the alternative requirement for parkland dedication under s. 42(3) of the Planning Act.

Several other municipalities sought leave to intervene in the motion for leave to appeal and the appeal itself, arguing the Board's decision could impact their own parkland dedication policies.

The Divisional Court granted the motions to intervene, finding the issue transcended the immediate parties and the proposed interveners could offer distinct and useful perspectives on an issue of public importance.

The appellants appealed a trial judgment finding them liable for arrears owing under three vehicle leases that had been assigned to the respondent.

The appellants argued that because they did not receive written notice of the lease assignments, the respondent was required to join the assignor as a party to the action.

The Court of Appeal dismissed the appeal, holding that while the assignor perhaps should have been joined, the appellants had actual notice of the assignment and suffered no prejudice.

The Court also rejected arguments that the trial judge violated the collateral fact rule during cross-examination and erred in her credibility assessments.

The respondents built an addition to their home that encroached on a private right-of-way shared with the appellants.

The right-of-way was granted for vehicular ingress and egress.

The application judge found that the encroachment did not substantially interfere with the appellants' ability to use the laneway for its granted purpose and dismissed the application.

The Court of Appeal upheld the decision, confirming that an encroachment on a private right-of-way, even by a permanent structure, is only actionable if it substantially interferes with the dominant owner's reasonable use of the right-of-way.

A vehicle leasing company sued lessees for arrears arising from three motor vehicle leases after the leases were assigned from the original lessor.

The defendants denied liability, asserting the vehicles had been returned and that no arrears were outstanding.

The court found the assignment of the leases valid and concluded the defendants had notice of the assignment.

After assessing credibility and business records, the court rejected the defendants’ claim that two of the vehicles had been returned and accepted the plaintiff’s evidence regarding outstanding arrears.

Judgment was granted requiring payment of arrears under the respective leases by the responsible defendants.

Following a dispute over costs after the underlying proceeding, the applicants sought costs on a substantial indemnity basis, while the respondents argued for a significantly reduced amount and objected to certain disbursements.

The court held that substantial indemnity costs were not warranted because there was no reprehensible conduct in the litigation.

On a partial indemnity basis, the court reviewed the hours claimed by counsel and rejected arguments that the applicants’ legal team engaged in excessive duplication, although some preparation time was considered excessive.

The court also allowed disbursements for professional witnesses, finding that accountants called as fact witnesses were entitled to compensation for their time in preparing affidavits, attending cross‑examinations, and testifying.

Total costs payable were fixed at $58,034 inclusive of HST.

The applicants sought an order permitting their accountants to finalize draft closing statements following the sale of shares in a technology company.

The respondents argued that an adjustment for allegedly obsolete inventory should be considered and requested appointment of a third accountant under the purchase agreement.

The court found that the respondents failed to raise the inventory issue within the contractual 15‑day period for commenting on draft closing statements and had not engaged their own accountants to trigger the dispute‑resolution mechanism.

The court rejected arguments of waiver and declined to grant equitable relief from forfeiture under s. 98 of the Courts of Justice Act, finding the respondents’ conduct unreasonable and unsupported by evidence of a valid claim.

The application was granted and the draft closing statements were ordered finalized.