Eleanore A. Cronk

This is a costs decision on appeal from a Superior Court judgment.

The appellant appealed the decision of Justice James F. Diamond dated August 22, 2016, and the associated costs order dated September 27, 2016.

The Court of Appeal reviewed the costs submissions of both parties and determined that the respondent was entitled to costs of the appeal on a partial indemnity basis, fixed at $80,000 inclusive of disbursements and HST.

The court found no basis for awarding costs on a substantial indemnity basis.

This is a costs endorsement following the Court of Appeal's dismissal of an appeal.

The respondent sought costs on a substantial indemnity basis, citing the nature of the underlying allegations and the trial judge's findings.

The appellants argued for costs on a partial indemnity basis.

The court awarded costs to the respondent on a partial indemnity scale, finding that while substantial indemnity costs were appropriate at trial due to the appellants' conduct, there was no principled basis to impose such costs for the appeal itself.

The appellants had a right to appeal and raised legitimate issues.

This is a costs decision following a successful appeal by the appellants.

The appellants sought recovery of costs from the respondents, specifically requesting the same amounts that had been awarded to them at first instance ($51,885.55 from Christine DeJong Medicine Professional Corporation and $14,017.28 from Dennis and Peggy Condos).

The respondents sought no costs, arguing that all parties were victims of fraud and that the contest was between victims.

The court awarded costs to the appellants as requested, finding this to be a just and fair disposition given that the appellants were successful on all aspects of the appeal and that no costs of the appeal had been awarded to them despite their success.

This is a costs endorsement following the Court of Appeal's decision allowing an appeal of a trial judgment in a civil action involving allegations of excessive force during arrest.

The respondent sought to avoid paying the costs of the appeal on the basis that the matter constituted public interest litigation.

The Court of Appeal rejected this argument, finding that the nature of the proceeding did not fall within the recognized categories of public interest litigation.

The appellants were awarded costs of the appeal in the amount of $25,000 inclusive of disbursements and HST.

The appellant appealed a trial judgment dismissing his claim for declaratory relief related to an insurance policy and sought leave to appeal a substantial indemnity costs award of $1,250,000.

The trial judge found that the policy contained a common mistake in the paid-up values table and ordered rectification.

The appellant argued that rectification was unavailable as a remedy and that any rectification claim was statute-barred under the Limitations Act.

The Court of Appeal upheld the trial judgment, finding that rectification was an appropriate remedy for the common mistake and that the claim was not statute-barred because the injury, loss, or damage only occurred when the appellant sought to resile from the parties' common understanding.

The court also upheld the substantial indemnity costs award, finding the appellant's conduct worthy of judicial sanction.

The respondent was arrested by Ontario Provincial Police officers on May 24, 2009, near Douglas Creek Estates in Caledonia while carrying a Canadian flag to participate in a flag-raising rally.

The trial judge found the arrest was unlawful and awarded damages for false arrest, wrongful imprisonment, and breach of Charter rights.

On appeal, the majority (Nordheimer and Cronk JJ.A.) found the arrest was lawful as a preventive measure to avoid an imminent breach of the peace, but remitted the case for a new trial on the issue of excessive force.

Huscroft J.A. dissented, finding the arrest was unlawful and that the trial judge's findings should not be disturbed.

This appeal concerns a serious and sustained Internet defamation campaign orchestrated by the appellant Rabinowitz against the respondent Rutman, a Toronto chartered accountant and businessman.

Rabinowitz admitted liability for defamatory statements posted on the Internet alleging tax fraud, theft, and cheating.

The trial judge found the appellants Bergman and Artcraft Company Inc. jointly and severally liable for the defamation.

The trial judge awarded $200,000 in general damages, $200,000 in aggravated damages, and $250,000 in punitive damages against Rabinowitz, and $50,000 in punitive damages against Bergman.

The appellants appealed on grounds of liability and damages.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings on concerted action liability, vicarious liability of the corporation, and the quantum of damages awarded.

This complex appeal arises from a multi-million dollar commercial real estate fraud perpetrated by Norma and Ronauld Walton over several years.

The appellants (DBDC Applicants) and respondents (Schedule C investors) were all victims of the fraud.

The central issue on appeal concerns the priority of claims against proceeds from the sale of properties acquired as part of the fraudulent scheme.

The appellants sought damages against the Listed Schedule C Companies on the basis of knowing assistance in breach of fiduciary duty, while the respondent DeJong sought constructive trusts over certain properties.

The majority allowed the appeal in part, finding the Listed Schedule C Companies jointly and severally liable for $22.6 million in damages for knowing assistance, but set aside the constructive trust awards to DeJong.

The dissent disagreed with the knowing assistance finding, arguing the net transfer analysis was insufficient to establish participation by the Listed Schedule C Companies in the breach of fiduciary duty owed to the appellants.

The appellant husband appealed from a motion judge's order that struck his reply factum, rectified an overpayment of trust funds, and struck his pleadings for failure to comply with court orders.

The Court of Appeal allowed the appeal on three grounds: the husband was denied the opportunity to respond fully to the wife's motion to strike; the motion judge overstated the wife's efforts to move the case to trial; and the motion judge failed to consider whether lesser remedies would suffice.

The court set aside the order striking the pleadings and substituted specific disclosure orders with consequences for non-compliance.

The appellant appealed his conviction on one count of aggravated assault (acquitted on attempted murder) and his designation as a dangerous offender with an indeterminate sentence.

The appellant raised two grounds of appeal: first, that the verdicts were irreconcilable, and second, that the trial judge erred in failing to limit the use of bad character evidence relating to a prior assault.

The appellant also appealed the dangerous offender designation, arguing the trial judge failed to make sufficient factual findings regarding the index offence.

The Court of Appeal dismissed all grounds of appeal, finding the verdicts were logically reconcilable, the jury received adequate instructions on character evidence, and the trial judge made sufficient factual findings to support the dangerous offender designation.

The appellant appealed the trial judge's decision denying probate of a 2012 will and dismissing the probate application.

The trial judge found suspicious circumstances surrounding the preparation and execution of the will, determined that the appellant failed to prove the testator's testamentary capacity, and held that the appellant failed to establish the testator's knowledge and approval of the will's contents.

The Court of Appeal upheld the trial decision on all grounds, finding that the suspicious circumstances displaced the presumption of testamentary capacity, placing the burden on the appellant to prove capacity.

The court also rejected the appellant's application to admit fresh evidence on appeal, finding the due diligence requirement was not met.

This is a costs endorsement following an appeal where the Court of Appeal set aside the order of the application judge dated October 5, 2015.

The parties had contested two issues on the application with divided success.

The application judge had reduced the respondent's costs from an agreed amount of $42,500 to $30,000 due to partial success.

On appeal, the Court of Appeal determined that the appellant succeeded on both issues argued at the application and therefore was entitled to the full agreed costs amount of $42,500 for the application below, in addition to $20,000 for the costs of the appeal.

The appellant was charged with making available and possession of child pornography following a lawful search of his residence and computer that revealed over 3,900 unique images, with 750 immediately accessible and evidence of active sharing through file-sharing software.

The appellant pleaded guilty to making available child pornography and was sentenced to the mandatory minimum of 12 months imprisonment less credit for pre-sentence custody, plus probation and ancillary orders.

On appeal, the appellant challenged his conviction and sentence on three grounds: (1) abuse of process arising from the Crown's election to proceed by indictment rather than summarily; (2) improper treatment of a Notice of Constitutional Question; and (3) unreasonable delay in breach of section 11(b) of the Canadian Charter of Rights and Freedoms.

The Court of Appeal dismissed all grounds of appeal, finding no abuse of process, no valid constitutional question, and that the delay, while substantial at approximately 38 months, was reasonable under both the transitional Morin framework and the new Jordan framework, given the complexity of child pornography investigations, the appellant's own conduct causing delay, minimal prejudice, and the seriousness of the offence.

This is a costs endorsement following an appeal decision.

The appellant achieved only partial success on appeal.

The court reduced the respondent's costs award from $180,000 to $135,000 (a 25% reduction), finding that while the respondent remained entitled to costs of the application, some reduction was appropriate given the appellant's partial success and the disputed issues on appeal.

The court also declined to award costs to the appellant for his motion for a stay of the application judge's decision, finding the claimed costs excessive and the motion inappropriate as it sought multiple forms of relief beyond the stay order.

On appeal from a trial judgment, the appellant House challenged the trial judge's findings regarding municipal liability for winter road maintenance, apportionment of fault, and the discount rate applied to damages.

The trial judge found that the Township of Wilmot was not liable for the accident despite unanticipated ice formation on Huron Road, as the municipality met its statutory defences under the Municipal Act.

The trial judge apportioned fault equally (50/50) between House as driver and Baird as vehicle owner, whose defective tires contributed to the loss of control.

The Court of Appeal dismissed House's appeal on all three issues and also dismissed Baird's cross-appeal regarding costs.

The appellant, an accounting firm's client, appealed a judgment in favour of Collins Barrow Toronto LLP for unpaid audit services invoices.

The appellant argued the application should have been converted to an action based on allegations of negligence in service provision and that certain invoices were barred by the two-year limitation period under the Limitations Act, 2002.

The Court of Appeal upheld the application judge's decision, finding no error in determining the matter under the Rules of Civil Procedure based on contract interpretation, rejecting the conversion argument due to insufficient evidence of negligence and damages, and finding the limitation period analysis sound based on the express terms of the engagement letters.

The appellant appealed a summary judgment holding it liable for the full unpaid purchase price of frozen shrimp ($228,604.50 US) plus prejudgment interest.

The dispute arose from a contract between a Toronto-based company and a Belgian seafood trader for the purchase of shrimp from an Ecuadorian supplier.

The motion judge determined liability under Ontario common law without addressing whether the United Nations Convention on Contracts for the International Sale of Goods applied.

The Court of Appeal found that the proper law of the contract was a threshold issue that should have been addressed, as the Convention applies to international sales of goods between parties in different contracting states.

The court set aside the summary judgment and remitted the matter for a new hearing.

An employer appealed a summary judgment awarding an employee 18 months reasonable notice at common law for wrongful termination.

The motion judge found that the employer breached the termination clause in the employment agreement by failing to consider the employee's years of service, position, and age when fashioning the termination package, thereby repudiating the entire employment agreement.

The Court of Appeal set aside the summary judgment, finding that the motion judge decided the case on a legal theory of liability that was neither pleaded nor advanced by the employee, denying the employer the opportunity to lead responsive evidence and compromising hearing fairness.

The matter was remitted for a new hearing before a different judge.

The appellant sought damages of approximately $1 million for losses sustained when a drainage pipe running underneath a floor installed by the respondent caused a flood in its warehouse.

The trial judge dismissed the negligence claim, finding that although the respondent damaged the drainage pipe by puncturing it with a stake used to brace concrete forms, the respondent nevertheless met the standard of care.

The appellant appealed, arguing the trial judge failed to consider contractual duties, erred in foreseeability analysis, and erred in not determining whether industry practice was itself negligent.

The Court of Appeal upheld the trial judge's decision, finding no error in the application of the standard of care, foreseeability analysis, or treatment of industry practice.

The appellant employer appealed a summary judgment award of $310,040.88 in damages to its former employee, representing 19 months' pay in lieu of notice plus prejudgment interest and costs.

The motion judge had found the termination clause in the employment agreement unenforceable due to lack of consideration.

The Court of Appeal allowed the appeal, finding that the employer's offer of employment to the employee upon the sale of the business constituted valid consideration for the termination clause.

The court distinguished the case from precedents involving variations to a single employment relationship, emphasizing that a new contract with a new employer was formed upon the business sale.

The court remitted the action to trial to address remaining issues regarding ESA compliance and other arguments not previously decided.