Edwin G. Upenieks

This is an appeal from an order dismissing a motion to set aside a noting in default.

The appellants (defendants in the original action) had repeatedly delayed filing a defence, despite extensions and changes in counsel.

The motion judge applied the principles for setting aside a noting in default, considering the full context, including the parties' behaviour and reasons for delay.

The Court of Appeal found no error in the motion judge's comprehensive analysis and dismissed the appeal, affirming that the plaintiff was entitled to proceed given the defendants' prolonged non-compliance.

This motion concerned the defendants' application to set aside a noting of default in a simplified procedure action.

The court reviewed the defendants' extensive and unexplained delays in filing a defence, noting a pattern of missed deadlines and a two-month delay in retaining new counsel after terminating previous counsel.

Despite the general preference for resolving disputes on their merits, the court found the defendants' conduct demonstrated "shocking laxity" and deliberate delay.

The motion to set aside the noting of default was dismissed, with costs awarded to the plaintiff.

The Applicant landlord sought to terminate a commercial lease and obtain a Writ of Possession, arguing the Respondent tenant failed to timely exercise its renewal option and breached lease terms.

The Respondent cross-applied for a declaration of valid renewal or relief from forfeiture.

The court found the tenant's renewal notice was submitted out of time, rendering it null and void, and dismissed the tenant's request for equitable relief from forfeiture, emphasizing strict compliance with renewal provisions in commercial leases.

This appeal concerned the interpretation of a will clause granting an option to purchase "the farming business carried on by me." The testator had ceased active farming years prior to her death, instead leasing the land.

The application judge found the farming business had ceased, causing the option to lapse.

The Court of Appeal reversed, holding that the application judge erred by not applying the presumption under s. 22 of the Succession Law Reform Act, which states a will speaks as if made immediately before death.

The Court found that the testator was still carrying on a farming business at the time of her death through leasing the land and declaring farm income, thus the option was valid.

In a long-running dispute over the ownership and management of medical schools, the respondents sought leave from the case management judge to bring a motion to set aside or vary a prior court order under Rule 59.06(2).

The respondents relied on a foreign court order as fresh evidence.

The court denied leave, finding that the foreign order did not constitute fresh evidence that would have changed the result, the respondents had delayed significantly in raising it, and the proposed motion was an abuse of process attempting to relitigate fully adjudicated issues.

The parties agreed that the moving parties would pay costs of the motion in the amount of $5,000 to the responding parties.

The Court of Appeal for Ontario ordered costs in accordance with the parties' agreement.

The respondents (moving parties) sought reconsideration of a prior Court of Appeal decision that had quashed their appeal as interlocutory and dismissed their motion to stay.

The court dismissed the motion for reconsideration, finding that Rule 59.06 of the Rules of Civil Procedure was inapplicable as no order had been issued and entered.

The court emphasized the principle of finality in litigation, stating that reconsideration is only granted sparingly and where the interests of justice require it.

The court noted that the moving parties had already pursued leave to appeal to the Divisional Court and were seeking further leave to appeal that decision, indicating acceptance of the original ruling.

A new argument regarding judicial bias based on counsel's race was deemed irrelevant to the determination of whether the original order was interlocutory or final.

This endorsement addresses the costs arising from a dismissed motion brought by the defendants.

The court found the defendants' conduct, including raising serious, unfounded ethical allegations against the plaintiff's counsel and subsequently abandoning a motion to remove him, constituted an abuse of process.

The court affirmed its broad inherent jurisdiction to award costs in such circumstances, including for abandoned motions.

Given the abusive and damaging nature of the allegations, the court awarded full indemnity costs to the plaintiff and their counsel.

The defendants brought a motion and the plaintiff a cross-motion in a Construction Lien Act action.

The defendants sought to adjourn the trial, challenge the authenticity of the Claim for Lien, amend their Statement of Defence, and have witnesses provide evidence by affidavit, while also making serious, unsubstantiated allegations of misconduct and ethical breaches against the plaintiff's current and former counsel.

The court dismissed the defendants' motion in its entirety, noting their failure to comply with court orders and the lack of evidence for their serious allegations.

The issue of removing plaintiff's counsel was abandoned with prejudice.

The plaintiff's cross-motion was not dealt with as the primary issues were resolved.

The trial was set peremptorily for May 2021.

Costs were reserved for written submissions.

The respondent, a not-for-profit corporation, brought a motion for an injunction requiring the applicants, former employees, to return allegedly misappropriated confidential documents and restraining their further use.

The respondent also sought a sealing order for the court file.

The applicants argued they were whistleblowers exposing corporate wrongdoing.

The court dismissed the motion for an injunction, finding that while there was a serious issue to be tried, the respondent failed to establish it would suffer irreparable harm.

The court also dismissed the request for a sealing order, concluding it was not necessary to prevent a serious risk to an important interest and that the public interest in open court proceedings outweighed the benefits of confidentiality.

This is a costs endorsement following a judgment concerning the division of a business enterprise operating two medical schools.

The Applicants sought partial indemnity costs for legal proceedings in Ontario and St. Vincent and the Grenadines.

The Respondents sought full indemnity costs against the Applicants and requested the judge's recusal due to alleged bias.

The court dismissed the recusal request, found no basis for costs against Applicants' counsel, and declined to award costs for St. Vincent and the Grenadines counsel due to lack of evidence.

The Applicants were largely successful in the main application, securing a monitor, injunctive relief, and an interim disbursement.

The court awarded the Applicants $85,000 in partial indemnity costs, inclusive of fees, disbursements, and taxes, payable within 30 days.

The respondents brought a motion seeking a contempt order against the applicant for breaching a disclosure order, an order to set aside restraining orders against Wilfred Abraham, and an order to appoint an inspector for Scorpio Specialty Services Inc. The court dismissed the contempt claim, finding non-compliance but not intentional breach.

It terminated the restraining orders against Wilfred Abraham, concluding they were no longer necessary due to changed circumstances and the applicant's inconsistent positions regarding Abraham's status.

The court granted the request to appoint BDO as an inspector under s. 161(2) of the Ontario Business Corporations Act, finding a prima facie case that the business affairs may have unfairly disregarded security holder interests, with the respondents initially bearing the investigation costs subject to re-apportionment at trial.

The applicant, widow and estate trustee of a deceased business partner, brought an application against the surviving partner regarding the division of their jointly owned medical schools in the Caribbean.

The applicant sought the appointment of a monitor, an injunction preventing the respondent from operating a competing medical school, and damages for oppression and breach of fiduciary duty.

The court found it had jurisdiction as the respondent waived the arbitration clause by participating in the litigation.

The court appointed a monitor to oversee the complex financial separation, granted an interim injunction restricting the respondent's competing university from poaching staff and students, and converted the application into an action due to significant factual disputes.

This is a costs endorsement following the dismissal of the respondent's summary judgment motion in an estate litigation matter.

The applicants sought substantial indemnity costs against the respondent personally.

The court found the respondent personally liable for costs, rather than the estate, as the litigation stemmed from his personal conduct as power of attorney and estate trustee.

Crucially, the court found the respondent's counsel breached his duty of candour to the court by failing to disclose a directly on-point, adverse binding authority (Wall v. Shaw) during submissions.

This breach of professional conduct was a significant factor in the decision to award substantial indemnity costs to the applicants.

The appellant appealed a summary judgment granted in favour of the respondent.

The appellant argued that the motion judge erred by deciding the case on summary judgment when the record was deficient.

The Court of Appeal rejected this submission, finding that the motion judge was able to analyze the legal relationship based on the evidentiary record.

The court determined that the appellant was the purchaser of travel products on behalf of its customers and the respondent was the seller, making the appellant responsible for the invoices.

The appeal was dismissed with costs.

The appellant sought an appeal of an order dismissing its application on the grounds of mootness.

The original application sought mandatory orders and an injunction to access certain data controlled by the respondent.

The parties reached a consent order permitting access to the data on the condition that the appellant pay outstanding fees to the respondent's lawyers on a without admission of liability basis.

When the appellant failed to make the payment by the stipulated date, the respondent brought a motion to dismiss the application, which the application judge granted on mootness grounds.

The appellant argued that the payment requirement was optional and that it should have been given a further opportunity to pay before dismissal.

The respondent, in his personal capacity and as estate trustee, moved for summary judgment to dismiss claims by his siblings (the applicants) regarding nine Arizona properties.

The respondent argued the claims were statute-barred, subject to res judicata, or did not raise a genuine issue for trial.

The court dismissed the motion, finding that res judicata did not apply as the issues were not determined in a prior passing of accounts, and the limitation periods under the Trustee Act or Limitations Act, 2002 did not apply to notices of objection in a passing of accounts application.

The court also found that the respondent failed to account for inter vivos gifts of property, raising factual and legal questions requiring a trial.

The appellant appealed a judgment of the Superior Court of Justice dated January 9, 2019.

On consent of both parties, the appeal was dismissed with costs awarded to the respondent in the amount of $3,250, inclusive of all fees, disbursements, and applicable taxes.

The costs were to be paid in accordance with the directions provided by the trial judge in the original judgment.

The appellant appealed a motion judge's decision refusing to restore the matter to the trial list.

The Court of Appeal found no error in the motion judge's decision, which carefully considered the relevant facts and issues, including prejudice, and properly applied the correct legal test.

The appeal was dismissed with costs awarded to the respondents.

The plaintiff brought a motion to restore her action to the trial list.

The action was commenced in 1999 and struck from the trial list in 2004.

The court applied the conjunctive test from Nissar, finding the plaintiff failed to provide an acceptable explanation for the delay.

Furthermore, the court found actual prejudice to the defendants due to fading memories, the death of a key witness, and the terminal illness of one of the defendants.

The motion was dismissed with costs awarded to the defendants.