Edwin G. Upenieks

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.

The appellant appealed a summary judgment order finding him jointly and severally liable for a debt.

He argued the motion judge ignored evidence that the respondent owed him money and that a settlement acknowledgement was signed under duress.

The Divisional Court dismissed the appeal, finding the motion judge properly considered the evidence, including a written acknowledgement of final settlement, and that the appellant had not requested to provide oral evidence on the duress claim at the motion.

The moving party sought to extend the time to file notices of motion for leave to appeal from a summary judgment dismissal and a case management endorsement.

The moving party argued that a subsequent costs decision, which found professional misconduct by his lawyer, demonstrated a reasonable apprehension of bias that tainted the earlier decisions.

The Divisional Court dismissed the motion, finding that the justice of the case did not favour an extension due to the lengthy delay, significant prejudice to the responding parties given an impending trial date, and the lack of merit in the proposed appeal.

The applicant, a restaurant franchisor, moved for an injunction to prevent the respondent landlord from leasing premises in the same mall to a bingo hall, arguing it violated an exclusivity clause prohibiting leases to any 'restaurant, bar or other food service business'.

The court dismissed the motion, finding that the bingo hall's ancillary snack bar did not make it a food service business within the meaning of the exclusivity clause.

The court held there was no serious issue to be tried, the applicant failed to demonstrate irreparable harm, and the balance of convenience favoured the respondent.

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.

Following a summary judgment decision where the plaintiff was declared the beneficial owner of a disputed property, the parties made written submissions on costs.

The plaintiff sought full or substantial indemnity costs, while the defendant argued for partial indemnity costs apportioned against the plaintiff due to divided success.

The court found the plaintiff was substantially more successful, having achieved his primary goals of retaining the family home and avoiding capital gains tax indemnification.

The court awarded the plaintiff partial indemnity costs of $25,988, discounted slightly for his unsuccessful punitive damages claim.

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 applicants sought to construct a secondary dwelling on a lot in the Niagara Escarpment Rural Area.

The Niagara Escarpment Commission conditionally approved the development permit, which was appealed by several parties.

Prior to the hearing, the applicants requested an adjournment to allow them to apply for an amendment to the Niagara Escarpment Plan.

The Hearing Officer granted the adjournment, finding it appropriate and an efficient use of resources, and scheduled a subsequent telephone conference call.

The defendants (former clients) brought a motion for an assessment of their former law firm's accounts under the Solicitors Act and to stay the law firm's action for unpaid fees.

The law firm argued the request was out of time as it was made more than 30 days after the last account.

The court found that the accounts rendered were interim, not final, and the limitation period had not begun to run.

Alternatively, the court found special circumstances justified an assessment.

The law firm's action for unpaid fees was stayed pending the outcome of the assessment.

A pre-hearing conference was held regarding appeals of a Niagara Escarpment Commission decision to conditionally approve a development permit for a secondary dwelling.

The parties agreed on a timeframe for scheduling the hearing and requested a continuation of the pre-hearing conference to discuss possible resolution of issues.

The Hearing Officer scheduled the hearing, document disclosure dates, and a continuation of the pre-hearing conference.

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.

The respondent IT provider brought a motion to dismiss the applicant law firm's application for failure to comply with a prior consent order.

The applicant had sought mandatory orders for the release of its legal practice data and cloud infrastructure information.

A consent order required the applicant to pay outstanding fees into trust to obtain the cloud data, which the applicant failed to do, arguing the payment was merely an option.

The court rejected this argument, finding the payment was a requirement.

As the applicant had already obtained the other requested data and consented to the deletion of the cloud data due to non-payment, the court dismissed the application as moot.

The applicant sought removal of a notice of interest registered on title under s. 71 of the Land Titles Act.

The respondent, the applicant’s sister, had registered the notice to protect a 15% entitlement to net sale proceeds arising from an agreement creating a trust over those proceeds.

The court held that the agreement created a trust in the net proceeds of sale rather than an interest in land.

Because s. 62(1) of the Land Titles Act prohibits the registration of trusts on title, the notice was unauthorized and had to be removed.

The court confirmed the parties’ agreement that upon sale the net proceeds would be distributed 85% to the applicant and 15% to the respondent.

A law firm brought a motion to set aside an Order of Assessment issued in favour of its former client, arguing the client requisitioned the order outside the 30‑day period under the Solicitors Act.

The client opposed the motion and cross‑moved for production of time dockets and trust and client ledgers, and alternatively sought a finding of special circumstances under s. 11 of the Solicitors Act.

The court found the client had not received the final invoice until April 2014 and therefore requisitioned the assessment within the statutory period.

The court also held that the absence of time allocations, the potential premium in the bill, and the law firm’s reluctance to disclose dockets constituted special circumstances warranting assessment even though the account had been paid.

The motion to set aside was dismissed, production was ordered, and the matter was directed to proceed to assessment.