Eli S. Lederman

The Master awarded substantial indemnity costs against the plaintiff, Long Term Recovery Limited (LTR), in favour of the defendants, David Ted Bolden and Antoinette Arian Bolden, following the defendants' successful motion to set aside default judgment.

The court found LTR's opposition to the motion to be aggressive, overly technical, and unreasonable, especially given the low threshold for setting aside default judgment and the defendants' bona fide attempts to retain counsel.

The decision emphasized promoting access to justice and deterring unreasonable interlocutory positions through higher costs awards.

This costs endorsement follows the dismissal of Luciano Sammut's application for adverse possession.

The respondent, Heather McGhee Peggs, sought substantial indemnity costs, arguing the application was commenced to interfere with her property sale.

The court found no reprehensible conduct by the applicant to warrant substantial indemnity costs and determined that Rule 49.10 did not apply to the respondent's offer to settle as the applicant's claim failed.

Considering the importance of the boundary issue, the complexity, and comparable counsel time, the court fixed costs on a partial indemnity basis at $32,267.53, inclusive of disbursements and HST, to be paid by the applicant.

The applicant sought a declaration of ownership and exclusive use over a strip of land via adverse possession.

The properties were converted to Land Titles in 2002, requiring the applicant to prove adverse possession for the continuous ten-year period from December 1992 to December 2002.

While the court found actual possession of the disputed land by the applicant's predecessors in title, it determined that the applicant failed to demonstrate the requisite intention to exclude the true owner or establish mutual or unilateral mistake, primarily due to a lack of direct evidence from predecessors in title during the relevant period.

Consequently, the application was dismissed.

The defendants brought a motion to set aside default judgment obtained by the plaintiff on a promissory note.

The court applied the Mountain View Farms test, considering promptness, plausible excuse for default, arguable defence, prejudice, and the integrity of justice.

The defendants demonstrated a plausible excuse for delay (financial difficulty in retaining counsel) and arguable defences, including undue influence/lack of independent legal advice, improvident insurance settlement affecting the note's quantum, and the plaintiff's status as an unregistered collection agency or Ontario's jurisdiction.

The court found minimal prejudice to the plaintiff, who had delayed collection for six years, and that setting aside default judgment served the interests of justice, especially given active discussions between counsel prior to default.

The motion was granted, and default judgment was set aside.

The respondent, Trade Capital Finance Corp., alleged it was defrauded of approximately $6.5 million in a scheme involving the purchase of fictitious accounts receivable.

The majority of lost funds were deposited into bank accounts owned by the appellant, The Cash House Inc., a financial services company.

Trade Capital obtained a Mareva Order freezing assets and ordering financial disclosure.

The appellants were found in contempt for intentionally operating Cash House through a bank account owned by a related entity (2454904 Ontario Inc.) in violation of the Mareva Order, and for failing to produce required documents.

The motion judge sentenced Osman Khan to 90 days imprisonment and struck Cash House's statement of defence and crossclaim.

The appellants appealed, arguing the Mareva Order was ambiguous and that the sanctions were excessive.

The Court of Appeal dismissed the appeal, finding the Mareva Order sufficiently clear and the sanctions justified by the appellants' persistent non-compliance.

The plaintiff brought a motion for leave under Rule 48.04(1) to bring a subsequent motion to strike a pleading in the defendants' Fresh as Amended Statement of Defence.

The plaintiff argued leave was not required because the action had been struck from the trial list.

The court held that leave was still required and denied the motion, finding no significant or unexpected change in circumstances to justify the delay of over three and a half years since the impugned pleading was delivered.

The appellant physician appealed a Discipline Committee decision finding her guilty of sexual abuse and revoking her license.

The finding of sexual abuse was based on a romantic kiss with a vulnerable patient.

The appellant argued the doctor-patient relationship had ended prior to the kiss and that the Committee breached procedural fairness by refusing to admit a letter from the patient after the close of evidence.

The Divisional Court dismissed the appeal, finding no breach of procedural fairness, no reversal of the burden of proof, and that the penalty of revocation was reasonable given the extensive history of boundary violations and professional misconduct.

The defendants sought costs following their substantially successful motion to compel the production of documents over which the plaintiff claimed privilege.

The plaintiff argued that costs should be in the cause or that no costs should be awarded due to divided success.

The court found that the defendants were overwhelmingly successful based on the number of documents ordered produced and the issues resolved.

Applying the factors under Rule 57.01, the court fixed the defendants' costs at $30,000 on a partial indemnity scale, payable within 30 days.

The defendants brought a motion to compel production of documents from the file of the plaintiff's subrogating insurer and to examine a representative of the insurer.

The plaintiff claimed solicitor-client, litigation, and settlement privilege over the documents.

The court reviewed the documents and ordered production of those where the dominant purpose was claims assessment rather than litigation defence, and those where the settlement privilege exception applied.

The court also ordered the examination of the insurer's representative, finding the action was brought for the insurer's immediate benefit.

The respondents brought a motion to quash an appeal from a trial judge's order declaring a mistrial and discharging the jury.

The appellant argued the order was final because it went to the jurisdiction of the court.

The Court of Appeal held that the trial court did not lose jurisdiction but expressly retained it, making the mistrial declaration an interlocutory order.

The motion to quash the appeal was granted.

The applicant, Best Theratronics Limited, sought leave to appeal to the Divisional Court from an interlocutory order denying an injunction that would compel the respondent, Canadian Nuclear Laboratories Limited (CNL), to continue supplying irradiated cobalt.

The motion judge had applied the three-part test for injunctions, finding a serious issue to be tried but concluding that irreparable harm was not substantiated and the balance of convenience favoured CNL due to the applicant's substantial payment arrears.

The court, applying Rule 62.02(4) of the Rules of Civil Procedure, found no conflicting decisions on the issues pertaining to injunctions in supply agreements and no good reason to doubt the correctness of the motion judge's discretionary order.

The court also noted the applicant's failure to expedite the pending arbitration.

Consequently, the motion for leave to appeal was dismissed.

The defendants successfully defeated the plaintiff's motion for an injunction regarding the processing and delivery of radioactive Cobalt-60.

The defendants sought costs of $69,000 on a partial indemnity basis, while the plaintiff argued for $25,000 or deferral to arbitration.

The court considered the complexity of the technical and legal issues, the high value of the goods involved, and the urgency of the motion.

The court fixed costs payable by the plaintiff to the defendants at $45,000 for fees and $6,000 for disbursements on a partial indemnity scale.

The plaintiff sought an interlocutory injunction preventing the defendants from terminating a cobalt irradiation services agreement and requiring continued supply of irradiated Cobalt‑60 pending arbitration.

The defendants terminated the agreement after the plaintiff failed to pay approximately $4 million in overdue invoices despite a contractual requirement that invoices be paid within 30 days.

Applying the RJR‑MacDonald test, the court held that although a limited serious issue existed regarding whether providing only 30 days’ notice to cure default complied with the duty of good faith, the plaintiff failed to demonstrate irreparable harm and the balance of convenience strongly favoured the defendants.

The court found that cancer treatment supply would not be disrupted because the product could be sourced elsewhere and existing supplies remained usable.

The motion for an injunction was denied.

The applicants sought costs following a motion for the production of documents.

Both parties claimed success on the motion.

The court found that the applicants were substantially more successful, as the respondent's principal position was that no disclosure should be ordered, forcing the applicants to bring the motion.

The court awarded the applicants costs fixed at $11,500 on an all-inclusive basis, reflecting a reduction for their lack of success on an alternative argument.

The appellants appealed a summary judgment decision, arguing the motion judge erred in accepting the respondent's expert evidence on the interpretation of the commercial reasonableness standard under the Uniform Commercial Code.

The Court of Appeal dismissed the appeal, finding the motion judge was entitled to accept the expert's opinion, especially since the appellants chose not to put forward any expert evidence of their own.

The court also rejected arguments regarding the expert's alleged bias.

The applicants brought a motion for the production of documents subject to solicitor-client privilege relating to the negotiation of a tax indemnification provision in an agreement.

The applicants sought rectification of the agreement, arguing the parties had a common understanding that was mistakenly omitted.

The respondent relied on affidavits from its principal and its former legal counsel to assert its intention regarding the provision.

The court held that by relying on these affidavits, which implicitly put the respondent's state of mind and legal advice in issue, the respondent had waived solicitor-client privilege.

The court ordered reciprocal disclosure of all solicitor-client communications relating to the negotiation of the agreement.

The court determined costs arising from a motion permitting the plaintiff to amend its claim to increase damages from $40 million to $650 million.

The defendants sought to set aside a previously ordered $10,000 costs award in favour of the plaintiff and requested $125,000 for costs allegedly thrown away due to the amendment.

The court held there was no basis to revisit the earlier costs award and found the evidence insufficient to support the claimed amount of wasted costs.

While some duplication of work and strategic reassessment was inevitable due to the expanded claim, much of the claimed time related to responding to the amended action rather than wasted steps.

The court awarded the defendants limited compensation for duplication of work and set off that amount against the prior costs award.

A secured lender brought a motion for summary judgment seeking payment of accounts receivable assigned to it following borrower default.

The moving party relied on security agreements governed by Virginia law and the Uniform Commercial Code, asserting a right to collect accounts receivable directly from an account debtor.

The responding parties argued the lender’s decision to collect receivables rather than realize on other collateral was commercially unreasonable and raised triable issues.

The court accepted expert evidence on Virginia law and held the UCC’s commercial reasonableness requirement applied to the manner of collection, not the decision to pursue accounts receivable over other collateral.

The court further held that cause of action estoppel barred the applicants’ claims due to prior litigation in the United States.

Summary judgment was granted and the related application dismissed.

Following a successful motion to amend a statement of claim, the moving party sought partial indemnity costs of $12,227.50.

The court considered the presumption that a successful party is entitled to costs but also the rule that prejudice caused by pleading amendments may be remedied through costs.

After reviewing the costs outlines, the court found portions of the claim excessive, including estimated travel costs and fees for junior counsel appearing on the motion.

Applying the factors under s. 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, the court fixed partial indemnity costs at $10,000.

Payment was deferred pending the outcome of an appeal and any further arguments concerning terms of the amendment.

The plaintiff corporation brought a motion to amend its statement of claim to increase the damages sought from $40 million to $650 million and to clarify allegations of fraudulent misrepresentation arising from the purchase of a company under a share purchase agreement.

The defendants opposed the amendment, arguing it fundamentally changed the litigation, was legally untenable, highly prejudicial, and constituted an abuse of process because the agreement limited recovery to an escrow fund absent fraud by the shareholders.

The court applied Rule 26.01 of the Rules of Civil Procedure, holding that amendments must be granted unless the claim is untenable, causes non-compensable prejudice, or constitutes an abuse of process.

Although the amendment significantly expanded the claim and came late in the litigation, the court found the proposed claim was not clearly doomed to fail and that any prejudice could be addressed through procedural adjustments and costs.

Leave to amend the pleading was therefore granted.