Denise Sayer

The appellant appealed an Associate Justice's decision dismissing a motion for production of two documents (a Statement of Work and final report prepared by Ernst & Young) that were referenced in an affidavit filed by a non-party representative.

The underlying dispute concerned whether Ernst & Young's acquisition-related records should be produced in a broader non-party production motion.

The Associate Justice declined to compel production of the two documents, finding that doing so would be improper and would unduly interfere with the orderly progress of the action by creating a risk of inconsistent findings between the refusals motion and the main motion.

The appeal court upheld this decision, finding no palpable and overriding error in the Associate Justice's discretionary determination that the requests were improper, and that her consideration of fairness, proportionality, and the risk of inconsistent results was appropriate.

This endorsement addresses a request for costs following the dismissal of Gary Beach's motion for leave to appeal and Heliotrope Investment Corporation's related motion being dismissed as moot.

Heliotrope sought $15,000 in costs, payable jointly and severally by Mr. Beach and three corporations in receivership.

The court awarded Heliotrope $15,000 in costs, payable solely by Gary Beach, declining to impose liability on the corporations due to a lack of apparent authority for Mr. Beach to act on their behalf and the absence of consent from their receiver.

Gary Beach, spouse of a bankrupt, sought leave to appeal a receivership order concerning three corporations where his wife was the sole shareholder and director.

The order had appointed MNP Ltd. as receiver under both the Bankruptcy and Insolvency Act (BIA) and the Courts of Justice Act.

Beach, who had participated in the original receivership motion, filed an appeal without leave, which is required under s. 193 of the BIA.

He subsequently moved for leave to appeal and an extension of time.

Heliotrope Investment Corporation, the party that obtained the receivership order, opposed the motion.

The Court of Appeal dismissed the motion for leave to appeal, finding that none of Beach's proposed grounds of appeal (lack of identified test, absence of reasons, issues with order settlement, unreflected assurances) were prima facie meritorious, and no issues of general importance were raised.

The plaintiff brought a motion under Rule 34.10 for the disclosure of documents referenced in an affidavit sworn by a non-party, and to compel answers to questions refused during the non-party's cross-examination.

The requested documents were a subset of those sought in an underlying, pending Rule 30.10 motion for non-party production.

The court dismissed the motion, finding that ordering production at this stage would interfere with the orderly progress of the action, risk inconsistent findings with the pending Rule 30.10 motion, and disturb the fairness of the procedure for seeking non-party productions.

The Trustee of the Alexander Morris Sharpe Trust sought the court's advice and directions on whether legal fees for David and Natasha Sharpe could be paid from the trust, which was established for the "sole and exclusive" benefit of their minor son, Alexander Morris Sharpe.

The Office of the Children's Lawyer opposed, arguing the trust language was clear and restrictive.

The court ruled that the trust funds could not be used to pay the legal fees, as such payments would not be for the "sole and exclusive" benefit of the minor beneficiary, even if there was a collateral benefit.

This appeal concerned an estate dispute where the appellant sought to exercise dissent rights under the Ontario Business Corporations Act (OBCA) in response to the liquidation of a family-owned holding company.

The application judge found these rights were waived by a Unanimous Shareholders Agreement (USA).

The Court of Appeal dismissed the appeal, affirming that the USA's provisions clearly waived dissent rights and that this interpretation was consistent with the company's purpose of managing estate assets.

The applicants sought a declaration that Lloyd's Underwriters had a duty to defend them in an action brought by a former business partner, Gavin Dabron.

Dabron's action included claims for breach of confidence and negligent/fraudulent misrepresentation related to a prior settlement and company valuation.

The court found that while the claims initially fell within the policy's coverage, they were ultimately excluded by the "prior and pending litigation" clause, as both the confidentiality and valuation claims arose directly from earlier litigation between the parties.

The application for a duty to defend was dismissed.

This is a costs endorsement following an appeal.

The respondent, Heliotrope Investment Corporation, provided costs submissions as requested, while the appellants, Jonathan Gary Beach and Martha Lorraine Beach, chose not to make any submissions.

The court awarded costs to the respondent in the amount of $20,000, inclusive of disbursements and relevant taxes.

The appellants, Jonathan Gary Beach and Martha Lorraine Beach, appealed a bankruptcy judgment.

They sought to introduce fresh evidence, which the Court of Appeal denied, finding it could have been presented earlier or lacked evidentiary value.

The Court found no error in the application judge's findings that the appellants owed a debt of $1,000 or more and had generally ceased to meet their liabilities.

The application judge also correctly exercised discretion in not refusing or staying the bankruptcy order.

The appeal was dismissed.

The bankrupt applicants and their corporation brought a motion to remove protective orders registered on title by the respondent.

The protective orders restricted the applicants from dealing with their property without providing notice and details to the bankruptcy trustee.

The applicants argued the registration was contrary to their agreement and added an oversight requirement.

The court dismissed the motion, finding that the orders were properly registered under the Land Titles Act, remained in full force, and did not impose any additional oversight beyond what was already ordered.

The plaintiffs entered into an agreement of purchase and sale with a builder to construct a home on a lot.

The builder was not the registered owner of the lot, but had a development agreement to purchase it from the registered owners.

After the builder abandoned the project, the plaintiffs terminated their agreement and registered a purchaser's lien against the property to secure their deposit.

The registered owners brought a motion to determine if the lien was properly registered.

The court held that the plaintiffs were not entitled to register the lien because they did not have a contract with the registered owners, and their agreement with the builder expressly provided that no interest in land was created until certain conditions were met.

Following an unsuccessful motion by a non-lawyer for leave to represent a corporate defendant, the successful co-defendant sought partial indemnity costs of $6,241.67.

The moving party sought to have these costs payable jointly and severally by the corporation and its non-party controlling minds.

The court found the requested costs excessive and fixed them at $4,000.

The court declined to award costs against the non-parties, finding no gross misconduct or vexatious conduct that would justify such an order.

A non-lawyer sought leave under Rule 15.01(2) of the Rules of Civil Procedure to represent a corporate defendant in an action involving a purchaser's lien.

The court applied the Extend-A-Call factors and denied leave, finding that the proposed representative was not an officer, director, or shareholder, lacked understanding of the litigation process, and took positions contrary to the corporation's pleadings.

The motion was dismissed, and the corporation was ordered to be represented by a lawyer.

This is a costs endorsement following the dismissal of an appeal by the Court of Appeal for Ontario.

The respondents sought full indemnity costs, citing contractual language in mortgage actions and the appellants' "reprehensible conduct" and "scurrilous accusations." The appellants argued the claim was excessive and duplicative.

The court, while acknowledging contractual full indemnity, exercised its overriding discretion due to the complex and overly litigious nature of the case, finding both parties contributed to procedural skirmishes.

The court fixed costs payable by the appellants to the respondents at $170,000, all-inclusive, a reduction from the $190,372 claimed.

The plaintiff brought a motion for summary judgment on 34 promissory notes totaling $998,181.23 and sought to dismiss the defendants' counterclaim.

The parties filed voluminous records totaling over 2,000 pages.

The court dismissed the motion, finding that the sheer volume of evidence made it impossible to determine if there was a genuine issue for trial within the scheduled two-and-a-half-hour motion, and concluded the matter was not suitable for summary judgment.

The appellants (Beach parties) appealed summary judgments granted in favour of the respondents (Magenta parties) in three mortgage enforcement actions, and the motion judge's refusal to stay enforcement of those judgments.

The Court of Appeal dismissed the appeals, finding no error in the motion judge's decision to grant summary judgment or to decline a stay.

The court clarified and applied a restated multi-factorial approach for stays under Rule 20.08 of the Rules of Civil Procedure, considering the merits of the counterclaim, the relationship between claims, the defendant's litigation conduct, and the balance of prejudice.

The plaintiff brought a motion seeking an order to transfer ownership of an Endangered Species Act benefit permit to the defendants.

The defendants opposed the motion, arguing the plaintiff failed to comply with a prior security for costs order and failed to serve the Ministry of Environment, Conservation and Parks.

The court granted the plaintiff leave to bring the motion despite a minor delay in paying costs, but dismissed the motion on the basis that the court lacked jurisdiction to transfer the permit without notice to the Ministry.

The defendants brought a motion for an interlocutory injunction and declaratory relief to prevent the plaintiff from interfering with land development projects governed by Joint Venture Agreements.

The plaintiff, whose principal had been terminated as project manager, had been contacting third parties and refusing to execute necessary documents, jeopardizing the final plan approval of the Johnson Point project.

The court found that the defendants had final decision-making authority under the agreements and met the test for a prohibitory interlocutory injunction.

The court granted the requested relief, limiting it to the Johnson Point project, and ordered the plaintiff not to cancel a related environmental permit.

The defendants brought a motion for security for costs, primarily based on two unpaid costs awards totaling $125,000.

The court applied Rule 56.01 of the Rules of Civil Procedure and the holistic "justness" principle from Yaiguaje v. Chevron Corporation.

The court found the defendants satisfied the initial onus due to the unpaid costs.

The plaintiff failed to demonstrate that an order for security would be unjust, particularly regarding impecuniosity, the merits of its claim, and its dilatory conduct in litigation.

The court granted the motion, ordering the plaintiff to post $150,000 security for costs, with a provision to reduce the amount to $20,000 if the outstanding costs awards plus accrued interest were paid within 60 days of the motion hearing.