Duncan Charles Boswell

The Fund brought a motion seeking payment of $1 million in deferred proceeds under a share purchase agreement and a declaration that Newbury's removal of the general partner of a limited partnership contravened a CCAA stay order.

The court granted the order for deferred proceeds, interpreting the agreement's clear language and factual matrix to mean payment was contingent only on the absence of Canadian Exit Tax, not on profit or loss from the sale of securities.

The court dismissed the request regarding the stay order, finding it did not extend to the general partner or partnership.

Costs were awarded to the Fund.

On appeal from Alberta, the Court held that civil contempt required proof beyond a reasonable doubt that the appellant had actual knowledge of the case management orders he failed to attend.

The case management judge did not determine actual knowledge for two of the three orders, and the respondents conceded the governing rule requirements were not met for those orders.

The contempt finding therefore could not stand.

The Court also endorsed the Canadian Judicial Council’s Statement of Principles on Self-represented Litigants and Accused Persons.

The appeal was allowed, the action restored, and the costs award vacated.

The appellants, foreign corporations and an individual, appealed a motion judge's order dismissing their motion to dismiss the action for want of jurisdiction or to stay it on the basis of forum non conveniens.

The respondent municipality sued for breach of contract, fraud, and conspiracy regarding a waste management agreement.

The Court of Appeal upheld the motion judge's finding that the respondent established a 'good arguable case' for jurisdiction based on the pleadings and evidence of agency.

The court also deferred to the motion judge's conclusion that Ontario was the appropriate forum given the torts and contract were connected to the province.

The appellant sued the respondent bank for breach of contract and negligence after his cousins fraudulently withdrew over $1 million from his account.

The trial judge dismissed the action, finding the appellant was bound by a Financial Services Agreement (FSA) that released the bank from liability if errors were not reported within 30 days.

On appeal, the appellant argued the trial judge provided insufficient reasons and misconstrued the FSA.

The Court of Appeal dismissed the appeal, holding that the verification agreement constituted a complete defence and the appellant failed to exercise reasonable care.

The respondent's cross-appeal on costs was allowed, directing the appellant to pay the trial costs.

Following the dismissal of two related civil actions, the successful defendants sought a costs order requiring the plaintiffs’ counsel personally to pay a portion of the trial costs associated with calling 22 witnesses.

The defendants argued that the evidence of those witnesses was inadmissible under the parol evidence rule and that counsel’s decision to call them wasted approximately ten days of trial time.

The court considered Rule 57.07 of the Rules of Civil Procedure and the court’s inherent jurisdiction to award costs against a solicitor.

The judge held that such orders should be made only in rare circumstances and typically require conduct approaching recklessness, abuse of process, or bad faith.

The court concluded that counsel’s decision to lead the evidence was not reckless or abusive and declined to order costs against counsel personally.

Following an appellate ruling that set aside a trial decision and declared a trust declaration void, the court was asked to determine costs after the original trial judge retired.

The successful plaintiff sought substantial indemnity costs exceeding $200,000, relying on findings that the defendant had engaged in fraudulent misrepresentations in connection with a loan transaction and a trust declaration.

The defendants argued that costs should be deferred pending the disposition of a counterclaim and challenged the scale and scope of the claimed costs.

The court held that substantial indemnity costs were justified given the findings of dishonest conduct but deferred determination of most pre‑trial costs because the majority related to the outstanding counterclaim.

The court fixed immediate costs of $20,500 for trial attendance and preparation of cost submissions, payable jointly and severally by the defendants.

The defendants sought over $100 million in damages following a damages inquiry ordered after the plaintiffs wrongfully obtained ex parte Mareva and Anton Piller orders that shut down the defendants' lottery telemarketing business.

The court found that most of the financial losses and lost business opportunities were caused by an American Temporary Restraining Order that pre-dated the ex parte orders, not the ex parte orders themselves.

However, the court awarded $250,000 for the loss of an opportunity to transition the business in an orderly fashion, $1,000 for a seized cell phone, and $703,576 for legal expenses incurred in setting aside the orders and participating in the inquiry, for a total award of $954,576.

The appellant appealed the dismissal of his action against his mother regarding an alleged contract for land.

He brought a motion seeking a declaration that Rule 63.01 automatically stayed the trial judge's order releasing vendor take back mortgage funds held in trust to the respondent, or alternatively, an order for a stay under Rule 63.02.

The Court of Appeal dismissed the motion, finding that an order for payment out of trust is not an order for the payment of money under Rule 63.01.

The court also declined to order a stay under Rule 63.02, as the appellant failed to establish a serious issue to be tried, irreparable harm, or that the balance of convenience favoured a stay.

The appellant appealed the trial judge's dismissal of its action to declare a trust declaration void as a sham or fraudulent conveyance.

The Court of Appeal found that the trial judge erred by failing to consider the respondent's own testimony, which demonstrated he believed he retained voting control of the assets purportedly held in trust.

As the respondent had not separated himself from the beneficial interest, the certainty of intention was missing, rendering the trust void.

The appeal was allowed and the trust declaration was declared void.

The appellants brought a motion in writing to amend the court's previous judgment to address the issue of costs granted by the motions judge.

The Court of Appeal dismissed the motion, noting that the appellants had failed to mention the costs award in their notices of appeal, factum, or oral argument.

The court held that it was too late to raise the issue and that allowing the motion would be unfair and prejudicial to the respondents.

Costs of the motion were awarded to the respondents in the amount of $5,000.

The parties made costs submissions following an appeal decision.

The Court of Appeal for Ontario maintained its view that success on the appeal was equally divided.

Consequently, the court ordered that there be no costs of the appeal.

The United States government sought to enforce a $19 million Illinois judgment and permanent injunction against the defendants, who operated a cross-border lottery telemarketing business.

The motion judge refused summary judgment, finding a triable issue on a 'new' defence of denial of a meaningful opportunity to be heard.

The motion judge also ordered an immediate damages inquiry regarding undertakings the U.S. gave when it previously obtained Mareva and Anton Piller orders that were later dissolved.

The Court of Appeal allowed the appeal in part, holding that there is no new defence to foreign judgment enforcement based on a meaningful opportunity to be heard, which is indistinguishable from natural justice.

The Court enforced the U.S. judgment but upheld the order for a damages inquiry, finding no special circumstances to relieve the U.S. of its undertakings despite the alleged illegality of the defendants' business.

The appellant, a Canadian pig producer, appealed an order dismissing its motion for an anti-suit injunction and granting a stay of its Ontario action against a Russian corporation.

The appellant sought to avoid an arbitration clause requiring arbitration in Moscow, alleging the respondent's CEO made death threats against its chief operating officer.

The Court of Appeal dismissed the appeal, finding the injunction issues moot as the arbitration had already occurred.

The court upheld the stay of the Ontario action, concluding the arbitration clause was broad enough to encompass the appellant's related tort claims.

The appellants were successful in obtaining a notable reduction in the costs award against the respondents and sought their costs.

The Divisional Court considered the divided success on various issues, including the leave motion, interest date, substantial indemnity, and fresh evidence.

The court fixed the appellants' costs at $35,000, apportioning liability between the Yemec respondents (two-thirds) and the Bungaro respondents (one-third) to reflect their different levels of participation and liability.

The appellants appealed a costs order of $691,304.74 on a substantial indemnity basis, awarded after the respondents successfully moved to set aside an ex parte Mareva injunction and Anton Piller order.

The Divisional Court upheld the substantial indemnity scale, finding the appellants' failure to make full and frank disclosure was not inadvertent.

However, the court found the motion judge erred in failing to properly analyze the bills of costs and apply the Boucher principles to ensure the quantum was fair and reasonable.

The court reduced the costs awarded to the Yemec respondents by 40% and to the Bungaro respondents by 20%.

The court also held that post-judgment interest on the costs award should run from the date of the costs order, not the date of the decision on the merits.

The appellants sought to amend their statement of defence to allege an improvident sale and de facto foreclosure by the respondent credit union.

The motion judge dismissed the motion on res judicata and abuse of process grounds.

On appeal, the Court of Appeal upheld the dismissal but on different grounds, finding that the claims could not provide a defence or set-off to the respondent's action under section 38 of the Bankruptcy and Insolvency Act, and that any separate counterclaim belonged to the trustee in bankruptcy, not the appellants.

The plaintiffs sought leave to appeal a costs order granting the defendants substantial indemnity costs of $616,900 following the dissolution of an ex parte Mareva injunction and Anton Piller order.

The motion judge had awarded substantial indemnity costs based on a finding that the plaintiffs failed to make full and frank disclosure, regardless of whether the failure was willful.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the costs award due to the lack of a full analysis under Rule 57.01 and the questionable proposition that unintentional non-disclosure automatically warrants substantial indemnity costs.

The court also found the issues to be of general public importance given the magnitude of the award and the need for appellate guidance on the new costs regime.

The appellant appealed a trial judgment ordering him to pay $3.8 million for breach of a real estate joint venture agreement.

The appellant argued the respondent was disentitled to the funds for trading in real estate without a license and sought disgorgement of a commission.

The respondent cross-appealed for punitive damages and a higher rate of prejudgment interest.

The Court of Appeal dismissed both the appeal and cross-appeal, finding the respondent was exempt from licensing requirements as it was dealing with its own interest, the commission was properly disclosed, and the appellant's conduct did not meet the exceptional threshold required for punitive damages.

The Crown appealed a stay of proceedings granted by the trial judge due to unreasonable delay.

The Court of Appeal dismissed the appeal, finding that the Crown failed to justify the delay of over four and a half years from the laying of the initial charges, and that the trial judge's findings regarding the prejudice suffered by the respondent were fully supported by the record.

The appellants appealed a trial judge's decision holding a non-party liable for costs and ordering that the costs of the 45-day trial be fixed rather than assessed.

The Court of Appeal dismissed the appeal, finding that the trial judge correctly applied the test for non-party costs and reasonably concluded that the non-party exercised de facto control over the claim.

The Court also upheld the decision to fix costs, agreeing that the protracted history of the proceeding and the age of the parties made an early resolution imperative.