Douglas M. Cunningham

This costs decision addresses the allocation of costs for a distribution motion concerning competing claims over preserved funds in a complex fraud and investment scheme case.

The Trial Parties, who succeeded at trial on fraud, breach of fiduciary duty, conspiracy, and unjust enrichment claims, sought to recover their judgment from preserved funds.

The Settling Parties, who had reached settlement agreements with the defendants before trial, sought equitable liens and constructive trusts over the same preserved funds.

The court awarded costs to the Trial Parties against the Settling Parties, finding that the Settling Parties had deliberately delayed enforcement of their settlements and improperly sought to benefit from the Trial Parties' litigation efforts without bearing the associated costs and burdens.

The moving parties sought to amend a trial judgment and costs judgment dated August 15, 2022 and February 15, 2023, respectively, to add a defendant who was not named in their original statement of claim and against whom they did not pursue any cause of action.

The moving parties also sought to amend reasons for decision from a distribution motion to align with the proposed amendments.

The court found that the moving parties had deliberately chosen not to name the defendant as a party to their action despite opportunities to do so, had confirmed during discoveries that they were not suing her, and had not cross-examined her at trial.

The court held that it was functus officio and lacked jurisdiction to amend the judgments, and that Rule 59.06 did not provide grounds for the requested amendments.

The motion was dismissed on the basis that parties must present their entire case and not litigate by installment, and that the principle of finality must govern.

The applicant sought a declaration that it had provided a valid and enforceable notice of extension under a 2015 lease.

The court dismissed the application, finding that the applicant and respondent had entered into a new binding agreement on November 24, 2021, which superseded the original lease terms.

Consequently, the applicant could not extend the 2015 lease by notice of extension and was ordered to pay past due rent and costs to the respondent.

The plaintiffs invested in a land development project in Brampton promoted by the defendants.

The defendants promised to develop the property into a subdivision and deliver serviced lots to the investors.

However, the defendants never developed the property, secretly used project funds to pay for their personal expenses, and ultimately sold the undeveloped land to a third-party developer for over $15.3 million.

The plaintiffs sued for breach of contract, fraud, conspiracy, breach of fiduciary duty, and unjust enrichment.

The Superior Court of Justice allowed the actions, finding that the defendants had engaged in a deliberate pattern of deceptive and self-serving misconduct.

The court imposed a constructive trust and awarded the plaintiffs a pro-rata share of the sale proceeds based on their capital contributions, totaling over $10.6 million, plus $150,000 in punitive damages.

The appellants appealed the dismissal of their action against the respondent, Ante Kegalj, following a summary judgment motion.

The Court of Appeal found that the motion judge erred in applying the Hryniak v. Mauldin analytical framework by focusing too narrowly on the pleadings and the appellants' admissions, rather than broadly assessing the entire evidentiary record.

The motion judge failed to properly consider the full scope of the fraud allegations and the significant credibility issues raised by conflicting evidence regarding the respondent's alleged involvement in a fraudulent land development scheme and personal enrichment.

The Court of Appeal allowed the appeal, set aside the dismissal, and remitted the matter for trial, emphasizing the need for a fair process and just adjudication.

The plaintiff brought a motion in writing, without notice, for default judgment against one of the defendants after his statement of defence was struck.

The court held that the motion could not proceed in writing or without notice because there was no evidence that service was impracticable or unnecessary.

The motion was adjourned to proceed to an oral hearing, with directions provided for the filing of a proper motion record and factum.

The plaintiffs moved to find the defendant Robert Nelson in contempt for failing to comply with court orders, including a Mareva injunction, to disclose information and records regarding his assets.

Robert Nelson claimed inability to disclose due to employer confidentiality and lack of a court order.

The court found Robert Nelson's explanations implausible and his non-compliance deliberate and willful, concluding that the alleged employment and investment fund at TD/MBNA did not exist.

The court found Robert Nelson in contempt and extended the Mareva order, setting a hearing for sanctions.

The defendant Robert Nelson was found in contempt of court orders, including a Mareva injunction, for failing to disclose information and records.

Despite being given an opportunity to purge his contempt, he failed to comply.

The court considered the purposes of sanctioning contempt (ensuring future compliance and upholding public respect for court processes) and relevant factors including proportionality, mitigating/aggravating factors, deterrence, and denunciation.

Given the seriousness of breaching a Mareva order, the deliberate nature of the non-compliance, and the lack of genuine remorse or effort to purge contempt, the court imposed a two-week custodial sentence.

Costs were also awarded to the plaintiff Anise Odeh.

The plaintiff, Atlas Copco Canada Inc., brought a motion for contempt of a Mareva injunction against Dirk Johannes Plate and Maria Van Noorden Plate for selling properties despite court orders.

The defendants brought a cross-motion seeking a stay of action against Mr. Plate and dismissal of the action against Mrs. Plate.

The court dismissed the plaintiff's contempt motion, finding no intentional breach by the defendants due to the plaintiff's own non-compliance with the orders and lack of pursuit of real property claims.

Mr. Plate's cross-motion for a stay was dismissed, as the plaintiff was entitled to set off appeal costs against Mr. Plate's restitution debt.

Mrs. Plate's cross-motion to dismiss the action against her was granted on the grounds of merger of claims and, alternatively, inordinate and inexcusable delay by the plaintiff causing prejudice.

The respondent, as assignee of a debt owed for legal services provided in real property litigation, registered a mortgage on the property to secure the debt.

The appellants, claiming beneficial ownership interests in the property, appealed the motion judge's decision, arguing that no valid debt existed and that the respondent was not entitled to the secured funds based on unjust enrichment and misrepresentation on title.

The Court of Appeal upheld the motion judge's finding that a debt was owed, noting the respondent's husband's testimony and the property owner's consent to the mortgage registration.

The court held that the respondent, as a bona fide purchaser for value with a registered interest, had priority over any unregistered beneficial interests of the appellants, and that there was no unjust enrichment as the assignment of the debt provided a juristic reason for the benefit received.

This decision addresses costs for an original summary judgment motion after the Court of Appeal set aside the judgment against the defendant, Mr. Plate.

Mr. Plate sought substantial or partial indemnity costs, arguing the plaintiff's motion was unreasonable.

The plaintiff, Atlas Copco, sought to deny costs or have them "in the cause." The court found the plaintiff's summary judgment motion was reasonably brought and did not warrant substantial indemnity costs as a sanction under Rule 20.06(a).

While Mr. Plate was successful on appeal, the original motion significantly narrowed the issues for trial, benefiting both parties.

Considering the divided success and the plaintiff's status as a crime victim, the court ordered that costs of the summary judgment motion be "in the cause," to be determined by the trial judge.

The appellant, a former General Manager and Vice President of the respondent's Construction and Mining Technique division, was convicted of fraud over $5,000 following a jury trial.

The sentencing judge found that the appellant's participation in a fraudulent scheme involving inflated invoices constituted a gross breach of fiduciary duty.

The respondent subsequently moved for summary judgment in its civil action for breach of fiduciary duty, seeking $20 million in damages.

The motion judge granted summary judgment relying solely on the sentencing judge's findings.

The appellant appealed, arguing that the motion judge erred in granting summary judgment based on findings made under s. 724(2)(b) of the Criminal Code that were not express or implied in the jury's verdict.

This decision addresses a motion brought by the plaintiffs (Pichelli Parties and Caroti Parties) to amend previous summary judgment reasons and for the judge to recuse herself from re-hearing a specific summary judgment motion.

The original reasons had been released without oral submissions from the plaintiffs on the Kegalj summary judgment motion, which had been previously adjourned.

The court found it had jurisdiction to amend its decision before a formal order was entered, as the failure to hear oral submissions constituted a miscarriage of justice due to a violation of the *audi alteram partem* rule.

The court also determined that a different judge should hear the re-argued summary judgment motion due to a reasonable apprehension of bias, while the original judge would remain as the case management judge.

The defendants in multiple related actions brought motions for summary judgment against the Pichelli plaintiffs, who were investors in a real estate development project.

The plaintiffs alleged that the developers (the Vuletics), a title holder (Kegalj), and the developers' lawyers (the Adairs) engaged in fraudulent and improper conduct.

The court granted summary judgment dismissing the claims against the Adair defendants, finding that the lawyers owed no duty of care to the non-client investors.

The court also granted summary judgment dismissing the claims against Kegalj, finding no relationship or duty owed to the plaintiffs.

However, the court dismissed the Vuletics' motion for summary judgment, finding that genuine issues of credibility and conflicting versions of the lot purchase agreements required a trial.

The plaintiff brought a motion for summary judgment against the defendant, a former executive, for $20 million in damages arising from a fraudulent kickback scheme.

The defendant had previously been convicted of fraud in a criminal trial and sentenced to five years in prison.

The court applied the doctrine of abuse of process to rely on the factual findings of the criminal sentencing judge.

While the court dismissed the claims for civil conspiracy and civil fraud due to insufficient evidence of the defendant's active involvement in the broader scheme, it granted summary judgment for breach of fiduciary duty.

The court found the defendant's passive acquiescence and failure to stop the known fraud breached his fiduciary duties, making him liable for the full $20 million loss.

The court fixed costs for the Estate of Robert MacNeil and an individual personally at $75,000, to be paid by the respondent.

The costs were allocated $55,000 to the Estate and $20,000 to the individual personally.

The court directed that the respondent's share of townhouse proceeds ($24,624.42) be paid to his counsel for fees and a mediator's invoice, and the remaining costs be paid from the respondent's 5% interest in the Estate.

The court declined to recognize the respondent's counsel's claim for a charging order.

The applicant estate trustee sought to recover the estate's interest in a townhouse co-owned by the deceased and the respondent.

The respondent claimed the property by right of survivorship, arguing the joint tenancy was never severed, and brought a cross-application for unjust enrichment regarding beneficiary designations.

The court found that the joint tenancy had been severed by mutual agreement prior to the deceased's death, making them tenants in common.

The respondent's cross-application for unjust enrichment and constructive trust was dismissed, as was the estate's motion for contempt regarding the respondent's delay in signing closing documents.