Edward J. Babin

This costs endorsement follows the dismissal of the plaintiff's motion for an interim/interlocutory injunction.

The court was asked to fix the partial indemnity costs payable by the plaintiff to the successful defendants.

The decision reviews the parties' costs outlines, considering the complexity and importance of the issues, the time spent by counsel, and the applicable factors under the Courts of Justice Act and Rules of Civil Procedure.

The court fixed the defendants' partial indemnity costs at $230,000.

The plaintiff, Vaultose Digital Asset Services Inc., sought an interim and interlocutory worldwide injunction to restrain the defendants from developing, monetizing, using, or disclosing technology related to the "QDS Platform," alleging breach of confidentiality covenants.

The defendants, including Tilo Kunz and William Yakamovich, denied misuse of confidential information, asserting their work relied on public knowledge and prior experience.

Concurrently, the defendants moved for security for costs.

The court applied the "strong prima facie case" test for the injunction due to its intrusive nature.

The court found the plaintiff failed to establish a strong prima facie case for breach of confidence or misuse of confidential information, noting the vagueness of the alleged information and lack of specific evidence.

The injunction motion was dismissed.

The defendants' motion for security for costs was granted, with the plaintiff ordered to pay $121,000 in security for anticipated partial indemnity costs through discovery and mediation, plus $25,000 for the security for costs motion.

This endorsement addresses a plaintiff's motion for leave to amend its statement of claim and the costs of both this motion and an earlier motion to dismiss/stay.

The court had previously stayed claims related to the recovery of subordinated indebtedness due to a standstill provision but allowed other claims, such as those for fraud and conspiracy related to unauthorized agreements, to proceed with leave.

The plaintiff sought to include claims for damages from unauthorized loan transactions, knowing assistance, breach of fiduciary duty, fraud, conspiracy, punitive damages, and oppression remedy.

The court permitted claims for damages from unauthorized transactions, knowing assistance, breach of fiduciary duty, fraud, and conspiracy, finding they fell outside the standstill provision.

However, claims for punitive damages equal to the subordinated indebtedness were disallowed as a disguised attempt to recover prohibited amounts.

The oppression remedy claim was also denied, as the plaintiff failed to establish a proper complainant status independent of its prohibited creditor capacity.

The Mizrahi Defendants, as the overall successful parties on the stay motion and more successful on the leave to amend motion, were awarded partial indemnity costs for both motions.

The applicants sought the appointment of an Inspector to investigate the management and affairs of two companies, Morris Kerbel Holdings Limited and Paladium Construction Limited, alleging oppressive and unfairly prejudicial conduct by the respondents under the Ontario Business Corporations Act.

The court dismissed the applications, finding that the applicants had not met the second and third parts of the three-part test for appointing an inspector, specifically regarding the necessity and appropriateness of such an extraordinary remedy given that information could be obtained through ordinary litigation tools like an oppression proceeding.

The court also noted concerns about the broad scope, unknown costs, and lack of company resources to fund the investigation.

The parties agreed not to seek any costs of the appeal motions or the appeals.

The Court of Appeal issued an endorsement reflecting this agreement, with no costs awarded.

This is an appeal and cross-appeal from a Superior Court judgment concerning an oppression remedy claim.

The appellants (defendants) challenged the trial judge's valuation of shares, award of equitable damages, refusal to admit fresh evidence, and refusal to reconsider a Rule 59 motion.

The cross-appellants (plaintiffs) challenged the trial judge's findings on fiduciary duty, the 2012 share purchase agreement, quantum of equitable damages (interest), punitive damages, and transaction structure for share repurchase.

The Court of Appeal dismissed both the appeal and the cross-appeal, upholding the trial judge's decisions on all substantive issues, including the valuation, equitable damages, and the refusal to admit fresh evidence or reconsider motions.

Both parties' requests for leave to appeal costs were also refused.

Following a trial where the plaintiff successfully established oppression and was awarded approximately $4.2 million for her shares and termination damages, the court determined the costs of the action.

The plaintiff sought partial indemnity costs of over $1.4 million, while the defendants argued for significant reductions based on the plaintiff's lack of success on several discrete issues.

The court rejected a strict distributive costs approach but reduced the plaintiff's fees by 20% to reflect unsuccessful claims, and made further deductions for post-trial motions and excessive counsel.

The plaintiff was awarded $608,960 in fees and $194,933.33 in disbursements.

This addendum to a judgment determined the transaction structure for a court-ordered share purchase as an oppression remedy.

The individual plaintiff, Ms. Murray, a 9.1% shareholder in Pier 21, had been found to be oppressed, and the defendants were ordered to purchase her shares for $39.3 million.

Ms. Murray held her shares through a holding company (2327342 Ontario Inc.) and sought to minimize her tax liability by having the individual defendant, Mr. Star, or his holding company, purchase the shares of her holding company (Option One).

Mr. Star argued for Pier 21 to repurchase its shares from Ms. Murray's holding company for cancellation (Option Two).

The court found that Option One was not in accord with Ms. Murray's reasonable expectations, considering her prior share sales in 2012 where Pier 21 repurchased shares from her holding company for cancellation.

The court also noted that Option One would impose potential unknown liabilities and significant advisory costs on the defendants, risks not present in Option Two.

The court ordered the share purchase to proceed under Option Two, requiring Pier 21 to repurchase its shares from Ms. Murray's holding company for cancellation.

Following a trial where the defendants were ordered to repurchase the plaintiff's shares, the plaintiffs sought directions on the transaction structure to ensure tax efficiency.

The defendants argued the court lacked jurisdiction as the issue was not pleaded and the court was functus officio.

The court held it had jurisdiction under s. 241(3) of the Canada Business Corporations Act, noting the issue was raised during trial and fell within the broad remedial powers for oppression.

The court established a process for filing further evidence to resolve the transaction structure.

Class members who are not representative plaintiffs have no direct right of appeal from an order approving a settlement in a certified class action.

The Court of Appeal affirmed that the decision in Dabbs v. Sun Life Assurance Co. of Canada remains good law and has not been superseded by subsequent decisions.

A settlement approval order is neither a judgment on common issues nor a determination of aggregate damages, and therefore class members cannot seek leave to appeal under section 30(5) of the Class Proceedings Act.

Permitting individual class members to appeal settlement approvals would introduce uncertainty into settlement negotiations, undermine the authority of representative plaintiffs and class counsel, and impede the resolution of class actions.

Following a trial under the oppression remedy, both parties brought motions under Rule 59.06(1) to correct alleged errors in the court's reasons.

The court dismissed the defendants' request to remove references to a personal relationship and their claim of an arithmetic error in the fair value calculation.

The court granted the plaintiffs' motions to correct arithmetic errors, increasing the fair value of the corporation by $0.2 million and the equitable compensation awarded to $605,579.

The plaintiffs' request for compound interest was dismissed as it was not pleaded and lacked an evidentiary foundation.

This costs endorsement follows a summary judgment decision where HSBC Bank Canada (the Bank) successfully dismissed Kari Holdings Inc.'s (Kari) action.

The Bank sought costs on a partial indemnity basis, arguing for substantial indemnity post-settlement offer.

Kari opposed, citing novel legal issues and undue hardship to its shareholders, or proposed a lower partial indemnity amount.

The court found the Bank was entitled to costs on a partial indemnity basis, rejecting Kari's arguments regarding novelty and shareholder hardship.

The court awarded the Bank $100,000, inclusive, payable within 30 days, considering the complexity, resources expended, and the seriousness of the allegations.

Kari Holdings Inc., a secured creditor, brought a summary judgment motion against HSBC Bank Canada, alleging that HSBC improperly granted overdraft protection to their mutual debtor, C.I.F. Furniture Limited (CIF), and repaid itself using collateral subject to Kari's prior security interest.

Kari sought a declaration of priority and payment of $467,455 for the alleged overdrafts and $57,260 for credit card debt.

HSBC brought a cross-motion for summary judgment dismissing Kari's action.

The court dismissed Kari's motion and granted HSBC's cross-motion, finding that HSBC did not extend credit by way of overdraft and, alternatively, that CIF's repayments were made in the ordinary course of business, which was permitted under Kari's general security agreement.

The defendants brought a motion to strike various paragraphs of the plaintiffs' Statement of Claim in an action for oppression and breach of fiduciary duty.

The defendants argued the paragraphs were irrelevant, pleaded evidence, constituted conclusions, and were prolix.

The court agreed that many paragraphs, including the 'Overview' and 'Detailed Background' sections, contained evidence, argument, and irrelevant information that could prejudice a fair trial.

The court struck the offending paragraphs and headings with leave to amend, while allowing the plaintiffs to maintain allegations related to the breach of fiduciary duty claim.

Following earlier reasons dismissing most applicants’ requests for interim advancement of legal expenses from a corporation, the court addressed the costs of the applications.

The respondent corporation sought substantial indemnity costs exceeding $559,000 or alternatively partial indemnity costs, while the applicants argued that costs should remain in the cause of the underlying indemnity issue.

The court held that although the respondent was largely successful, payment of costs should be contingent on the outcome of the trial determining entitlement to indemnity.

The court fixed partial indemnity costs of $25,000 for a related motion and $165,000 for the applications, subject to specific allocations among applicants and exceptions for one successful applicant and another who withdrew participation.

Following dismissal of a motion for summary judgment arising from claims connected to a Ponzi scheme, the court determined the appropriate costs award.

The plaintiffs argued that no costs should be awarded due to the novelty of the factual circumstances, but the court held that novelty alone does not justify departing from the usual rule that costs follow the event.

The defendants sought either substantial indemnity or partial indemnity costs.

The court declined to award substantial indemnity costs, finding the plaintiffs’ litigation strategy unsuccessful but not unreasonable.

Partial indemnity costs were awarded to each defendant, with modest reductions applied to certain claimed amounts.

The defendant moved to vacate Certificates of Pending Litigation obtained by the plaintiff on an ex parte basis over two properties.

The court held that a party seeking ex parte relief must make full and frank disclosure of all material facts.

The plaintiff failed to disclose a prior divorce settlement in which he had disclaimed any trust interest in the properties and misrepresented the contents of a lawyer’s letter regarding potential sale of the land.

These omissions and misrepresentations were material and could have influenced the original ex parte decision.

The court therefore set aside the order permitting the certificates, but required that 50% of the gross sale proceeds of the properties be paid into court as security pending resolution of the ownership dispute.

A private prosecution brought by an environmental advocacy group against the owners and managers of a commercial office complex for regulatory offences related to bird deaths caused by collisions with the building's reflective glass.

The prosecution charged the defendants under three statutes: the Ontario Society for the Prevention of Cruelty to Animals Act, the Environmental Protection Act, and the federal Species at Risk Act.

The court found that the defendants committed the actus reus of two offences (EPA and SARA) but acquitted them on all charges after finding they exercised due diligence in addressing the bird strike problem.

On a summary judgment motion brought by solicitor defendants in a professional negligence and fiduciary duty action arising from an individual pension plan transaction, the court held the record could not satisfy the full appreciation test under rule 20.

The court found multiple triable issues, including the scope of an unwritten retainer, whether there was a duty to inform and warn the client about IPP compliance requirements, and whether a conflict of interest arose from repeated referral arrangements.

The court also found factual disputes regarding reliance on third-party experts and the solicitor's role in structuring and signing foundational corporate documentation.

Summary judgment was refused and the action, including cross-claims, was directed to proceed to trial.