George J. Pollack

This costs endorsement addresses the allocation of costs following the dismissal of motions by UD Trading Group and Rutmet for intervention and consolidation, and a cross-motion by TransAsia Private Capital Ltd. (TAP) for vexatious litigation.

The court had previously ordered a stay of proceedings on its own initiative.

The UD Group sought costs from TAP, while TAP primarily argued for each party to bear their own costs, or alternatively, sought partial indemnity costs in the cause.

The court rejected the relevance of a subsequent Singapore judgment to the costs determination and ultimately ordered that all participating parties bear their own costs of the dismissed motions and cross-motion.

The appellants (UDG) appealed a motion judge's decision to permanently stay their Ontario proceeding in favour of ongoing litigation in Singapore and Dubai.

UDG had commenced the Ontario action seeking declarations against the respondents (TAP), effectively advancing as claims the same allegations they made as defences in the foreign proceedings.

The motion judge found that a related loan involving Rutmet was distinct from UDG's loans and that UDG's Ontario action was an attempt to gain a jurisdictional advantage.

The Court of Appeal upheld the motion judge's decision, finding no error in her fact-finding, exercise of discretion, or analysis of attornment and forum selection clauses.

The appeal was dismissed, and the Ontario proceedings remained stayed.

Export Development Canada (EDC) brought a motion to temporarily stay the respondent's application pending the resolution of a related action.

The respondent, a trade financing lender, sought a declaration regarding coverage under an export credit insurance policy issued by EDC.

EDC argued that the validity of a power of attorney, which was being challenged in the related action, needed to be determined first.

The court dismissed the motion, finding that EDC had delayed in taking its position, the related action was proceeding slowly, and a stay would cause significant prejudice to the respondent.

The moving parties sought a stay pending appeal of a lower court's decision to permanently stay their underlying action in Ontario on the basis of forum non conveniens and forum selection clauses.

They also sought an order expediting the appeal.

The motion judge dismissed both requests, applying the three-part RJR-MacDonald test for stays pending appeal.

The court found that while the appeal raised a serious question, the moving parties failed to demonstrate irreparable harm or that the balance of convenience favoured granting the stay.

The court also denied the request to expedite the appeal, finding no urgency.

The Plaintiffs (UDG) sought an anti-suit injunction to halt proceedings against them in Dubai and Singapore concerning an alleged outstanding debt and guarantees.

The Defendants (TAP) cross-moved to dismiss or stay the Ontario action for lack of jurisdiction or forum non conveniens, citing forum selection clauses.

The court denied the anti-suit injunction, finding UDG failed to meet the Amchem test, particularly by not pursuing stays in the foreign jurisdictions.

The court also found Ontario was not the natural forum, given the parties' residences, witness locations, and applicable foreign laws.

The Plaintiffs' Ontario action was permanently stayed.

The appellants, a Canadian shipping conglomerate, purchased reconditioned marine engine parts from the respondent supplier, whose contract contained a six-month warranty and a clause limiting liability to €50,000.

Well after the warranty expired, the ship's main engine suffered a major failure caused by a latent defect in the supplied crankshaft, and the appellants commenced proceedings for $5,661,830.33 in damages and lost profit.

The trial judge held that the Civil Code of Québec governed the dispute and that the limitation clause was unenforceable, but the Court of Appeal majority reversed, finding Canadian maritime law applicable and the clause valid.

A unanimous Supreme Court of Canada allowed the appeal, restoring the trial judge's conclusions, although the six-judge majority and the three-judge concurrence differed as to the constitutional analysis: the majority applied a modified pith and substance test followed by the integral connection test and concluded that while the sale of marine engine parts falls within both federal legislative authority and provincial property and civil rights power (a double aspect scenario), neither interjurisdictional immunity nor federal paramountcy displaces art. 1733 C.C.Q., which prevails over non-statutory Canadian maritime law; the concurrence would have resolved the matter solely through pith and substance, characterizing the dispute as one of sale of goods governed by s. 92(13).

The defendant MasterCard brought a motion under Rule 21.01(1)(b) to strike the plaintiff's statement of claim in its entirety for disclosing no reasonable cause of action.

The plaintiff, a footwear retailer, sued MasterCard and its payment processor after MasterCard imposed nearly $5 million in assessments following an alleged data breach.

The court dismissed the motion to strike the claims for intentional interference with contractual rights, unlawful interference with economic relations, negligence, unjust enrichment, conversion, and declaratory relief, finding they had a reasonable prospect of success.

The court struck the claims for conspiracy (with leave to amend) and breach of the duty of good faith (without leave).

Following dismissal of stay and forum non conveniens motions in an application to recognize and enforce a foreign arbitral award, the court determined the appropriate costs award.

The successful applicant sought $65,000 in partial indemnity costs apportioned between the responding corporation and a non‑party that had actively participated in the motion.

The court applied Rule 57 of the Rules of Civil Procedure and the principles of proportionality and fairness articulated by the Court of Appeal, finding the requested amount reasonable given the complexity of the issues and extensive materials filed.

It held that a non‑party that voluntarily participates in litigation to protect its own interests may be liable for costs under s. 131(1) of the Courts of Justice Act.

Costs were fixed at $65,000 and apportioned 75% to the corporate respondent and 25% to the participating non‑party.

The applicant sought an ex parte interim order restraining a state-owned entity from obtaining share certificates for millions of shares in a Canadian mining company and from dealing with those shares pending enforcement of an arbitral award recognized by the Ontario court.

The applicant had previously obtained an order recognizing and enforcing a foreign arbitration award against a foreign state and alleged that shares held by a state-owned corporation were beneficially owned by the state and could be seized to satisfy the judgment.

Evidence suggested that steps were being taken to transfer the share certificates out of the jurisdiction, potentially frustrating enforcement.

The court found that there were reasonable grounds to believe the shares were assets of the state or held for its benefit and that there was a real risk they would be removed from Ontario.

Applying balance of convenience and public policy considerations, the court granted a temporary freezing order over a portion of the shares and related dividend proceeds.

A state-owned corporation moved to set aside an Ontario order recognizing and enforcing an international arbitral award against a foreign state and alternatively sought a stay of related execution proceedings on forum non conveniens grounds.

The moving party argued it was a person affected by the judgment because enforcement steps sought to seize shares it claimed to own.

The court held that a non-party claiming a proprietary interest in assets subject to execution does not have standing under Rule 38.11 to attack the underlying judgment against the debtor state.

The court further held that the moving party failed to establish that a foreign jurisdiction was clearly a more appropriate forum to determine ownership of shares issued by an Ontario-headquartered corporation for purposes of enforcing the judgment.

Both motions were dismissed.