Erik Penz

The applicant and one respondent were successful in an application to remove a matter from the Mining Lands Commissioner to the Superior Court of Justice.

They sought costs totaling over $120,000 against the unsuccessful self-represented respondent.

The court declined to award costs, finding the amounts claimed far exceeded reasonable expectations, the law was unclear, and a substantial award would be financially crushing to the unsuccessful party.

Each party was ordered to bear its own costs.

The applicant mining company brought a motion to strike portions of a respondent’s affidavit and factum on the basis that they disclosed communications made during settlement negotiations.

The court considered the principles governing settlement privilege as articulated by the Supreme Court of Canada and the conditions required for the privilege to arise.

It found that a litigious dispute existed or was contemplated at the time of the communications, the communications were made with an implied intention of confidentiality, and their purpose was to attempt settlement of the dispute.

As no competing public interest justified disclosure, the communications were protected by settlement privilege.

The court ordered that the impugned passages and documents be struck or expunged from the responding materials.

The appellant condominium corporation appealed the dismissal of its application for a declaration that a natural gas supply contract entered into by its former manager was void.

The application judge found the claim was barred by the Limitations Act, 2002, as the appellant was aware of the facts supporting its claim more than two years before commencing the action.

The Court of Appeal upheld the decision, rejecting arguments that the limitation period began only upon a demand letter or that a new claim arose with each monthly invoice.

The appeal was dismissed with costs.

Following the defendant’s successful summary judgment motion in a commercial dispute, the court determined the appropriate costs award.

The successful party sought more than $164,000 in costs relying on a prior offer to settle, or alternatively $141,852.34 on a partial indemnity basis.

The court considered Rule 57.02 factors including the amount claimed, complexity of the proceedings, the plaintiff’s conduct in prolonging the litigation, and the requirement that costs be fair and reasonable.

Although the plaintiff’s conduct contributed to delay and the defendant’s offer to settle was relevant, the court found the hours claimed excessive and reduced the award.

Costs were fixed globally at $100,000 inclusive of HST and disbursements.

The defendant brought a motion for summary judgment dismissing the plaintiff’s claim for damages arising from the termination of a propane supply relationship and seeking judgment on a counterclaim for unpaid invoices.

The dispute centered on whether negotiations following the expiry of earlier agreements resulted in a binding contract and whether promissory estoppel or bad faith negotiations could support the plaintiff’s claim.

The court held that the plaintiff’s December 6, 2001 letter constituted a counter-offer that rejected the defendant’s earlier proposal, eliminating any ability to later accept it.

The court further found no evidence establishing promissory estoppel or any pleaded claim based on a duty of good faith in negotiations.

Summary judgment was appropriate in this document-driven case, the plaintiff’s claim was dismissed, and judgment was granted to the defendant on its counterclaim for unpaid gas supplied.

The appellants sought to commence proceedings against the Russian respondents in Ontario and attempted to serve them in Russia under the Hague Convention.

The Russian government refused service citing sovereignty and national security.

The appellants brought a motion in Ontario to dispense with or validate service under rules 16.04 and 16.08.

The Court of Appeal held that rule 17.05(3), which incorporates the Convention, is a complete code for service on foreign defendants in contracting states, and Ontario courts have no discretion to substitute, dispense with, or validate service where the Convention applies.

In CCAA proceedings involving a mining company, competing motions were brought concerning the restructuring process.

The debtor sought directions regarding the procedure for resolving noteholder claims and the alleged misuse of confidential information by certain creditors, while the noteholders sought an order convening a meeting of creditors to vote on their proposed plan of arrangement.

The court held that calling a creditors’ meeting was premature because the proposed plan conflicted with the debtor-in-possession financing facility, had been introduced without meaningful consultation, and unresolved claims and litigation issues could affect voting rights and recoveries.

The court dismissed the noteholders’ motion without prejudice and declined to order disclosure sought by the debtor.

The stay of proceedings was extended to facilitate continued negotiations and mediation.

The appellant corporation, KPM, appealed an order of the case management judge denying it leave to bring a motion to remove itself as a party to a long-standing family dispute.

KPM argued the order was made summarily without an opportunity to be heard.

The Divisional Court dismissed the appeal, finding that the case management judge was entirely familiar with the reasons for adding KPM as a party to facilitate property valuation, and was entitled to deal with the request expediently.

The reasons for KPM's inclusion as a party remained extant.

The appellant brought a motion to adjourn the appeal in order to obtain a transcript of a trial management conference.

The Divisional Court denied the motion, noting that a court reporter is only present at such conferences when a litigant is unrepresented, and a transcript cannot be ordered without the conference judge's permission.

The court held that granting an adjournment based on the mere hope of obtaining permission made no sense.

Furthermore, the relevant rule only contemplates transcripts of oral evidence, which was not given at the conference.

The applicant, Kenora Prospectors & Miners, Limited, sought leave to appeal an order made at a trial management conference that denied it leave to bring a motion to be removed as a party to a family law proceeding.

The applicant argued it was denied the right to be heard on the merits of its request for leave.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the order because the applicant was seemingly denied the opportunity to present its case, and concluding that the right to be heard and the proper conduct of trial management conferences are matters of systemic and public importance.

The appellants appealed a Master's decision dismissing their motion to set aside service outside Ontario and permanently stay the action on the basis that Ontario was not the forum conveniens.

The Divisional Court determined that the standard of review for a Master's decision on forum conveniens is correctness, as it is vital to the final disposition of the lawsuit.

Applying this standard, the Court upheld the Master's finding that Ontario was the appropriate forum, noting the plaintiff's central location and the lack of evidence showing another jurisdiction was clearly more appropriate.

The appeal was dismissed.

The appellants appealed an order of a motions judge awarding costs of an interlocutory injunction motion to the respondents, payable within 30 days.

The appellants argued that, following established principles, costs of an interlocutory injunction should typically be reserved to the trial judge.

The Divisional Court dismissed the appeal, holding that Rule 57.03(1) of the Rules of Civil Procedure preserves the motions judge's residual discretion to fix costs payable forthwith.

The court found the motions judge reasonably exercised her discretion based on the appellants' conduct, including unauthorized cashing of cheques and retention of property.

The defendants sought leave to appeal an order requiring the payment of costs forthwith following the granting and continuance of an ex parte injunction against them.

The court granted leave to appeal, noting that recent changes to Rule 57.03(1) of the Rules of Civil Procedure and the unique nature of interlocutory injunctions warranted appellate consideration on how discretion should be exercised in awarding costs in such cases.