Gregory Govedaris

This costs endorsement followed motions arising out of a foreclosure action, related construction lien actions, and a fraud action concerning contaminated industrial property.

The moving parties sought to discharge or assign a mortgage by paying principal, interest, and limited costs, while the mortgagee resisted and sought broader recovery.

After divided success on the underlying motions, the court held that neither side should recover costs of the motions.

No costs were awarded.

The moving party sought leave to amend its claim in a simplified procedure action to add allegations that it had been misled in relation to a gas supply agreement, in addition to an existing electricity supply agreement claim.

The responding defendants argued the proposed amendment was clearly statute-barred, but the court held it was not in a position on the motion record to determine discoverability and found the trial judge would be better suited to assess that issue.

Leave to amend was granted, the addition of a further defendant was permitted on consent, and the responding defendants were granted a further two hours of discovery flowing from the amendments.

On costs, the court applied proportionality and fixed motion costs to the moving party at $1,695, while also recognizing amendment-related costs in favour of Planet Energy, resulting in a net payment by the plaintiff of $3,161.

The moving party (mortgagor) sought leave to redeem a mortgage on a commercial property that was the subject of a foreclosure action, a fraud action, and construction lien actions related to environmental contamination.

The responding party (mortgagee) opposed the motion and brought a cross-motion to discontinue its foreclosure claim, arguing the mortgagor was attempting to avoid paying remediation costs and legal fees.

The court granted the mortgagor leave to redeem the mortgage upon payment of the principal, interest, and assessed legal costs, finding that the mortgagee's attempt to discontinue the foreclosure action would unfairly prejudice the mortgagor's equity of redemption.

The plaintiff moved for an interlocutory injunction restraining the defendants from transferring or encumbering assets connected to a rooftop solar energy project.

Applying the RJR-MacDonald framework, the court accepted that there was a serious issue to be tried but rejected the argument that a modified property-rights injunction test applied.

The court held the plaintiff failed to establish irreparable harm because the responding parties had already undertaken not to assign, transfer, or encumber the project assets without a court order and any loss would be quantifiable in damages.

The balance of convenience also favoured refusing the injunction.

The motion was dismissed with fixed costs to the respondents.

Following several procedural motions in related fraud, foreclosure, and construction lien proceedings concerning contaminated industrial property, the court addressed the issue of costs.

The moving party had successfully obtained orders consolidating the actions, transferring the foreclosure proceeding to the same venue as the lien actions, and staying enforcement of any foreclosure order pending resolution of the fraud claim, while also resisting motions for further production.

Applying the principles governing costs under Rule 57.01 of the Rules of Civil Procedure and the Courts of Justice Act, the court held that the moving party was substantially successful and entitled to partial indemnity costs.

The court considered proportionality, complexity, and reasonable expectations of the parties in fixing the amount.

Costs were awarded jointly and severally against the responding parties, with additional costs awarded for an unnecessary adjournment attendance.

The applicant tenants sought a mandatory order requiring the respondent landlord to consent to a change in the operating name of their restaurant.

The landlord had refused consent, citing alleged prior breaches of the lease regarding unauthorized renovations.

The court applied the principles for determining whether a landlord has unreasonably withheld consent, finding that the landlord's concerns about past breaches were being addressed in a separate proceeding and did not justify refusing a simple name change.

The court held the refusal was unreasonable and granted the application, permitting the name change.

Following the dismissal of a landlord’s motion for security for costs and a motion to strike affidavit paragraphs, and the granting of the tenants’ motion to convert an application to an action, the successful tenants sought substantial indemnity costs.

The court considered the factors under Rule 57.01 of the Rules of Civil Procedure and the effect of settlement offers that effectively waived costs if accepted.

The court found the tenants had achieved full success and that their claimed hours and hourly rate were reasonable given the complexity and importance of the motions.

Applying the principle of reasonableness articulated in appellate authority, the court rejected the landlord’s proposed reduced costs figure.

Substantial indemnity costs of $8,800 were awarded.

A commercial landlord brought a motion for security for costs and to strike portions of affidavits filed by the tenant and subtenant in an application seeking consent to change the restaurant’s operating name under a lease agreement.

The tenants opposed the motion and brought a cross‑motion seeking to convert a related landlord application into an action due to disputed facts.

The court held that the tenants’ application had merit and that there was no basis for security for costs, noting the tenants had substantial assets and the matter was not frivolous.

The court also declined to strike the impugned affidavit evidence and held that communications between the parties should be disclosed.

Because the landlord’s related application involved numerous contested factual issues requiring viva voce evidence, it was converted into an action.

The appellants appealed a decision declaring the respondents were entitled to rescind a second franchise agreement due to the appellants' failure to provide a disclosure document.

The Court of Appeal upheld the application judge's findings that the matter was appropriate for an application, that the second agreement was a 'franchise agreement' under the Arthur Wishart Act triggering disclosure obligations, and that the rescission claim was not statute-barred because the limitation period only began when the franchisor disputed the notice of rescission.

The plaintiff brought a motion to amend the Statement of Claim to replace the fictitious name 'John Doe' with the name of the defendant insurer's employee, Maria Diolanda.

The defendant opposed the motion, arguing it was an attempt to add a new party after the expiry of the limitation period.

The court found that the original pleading clearly pointed the 'litigation finger' at the person who sold the insurance policy, making this a case of misnomer rather than adding a new party.

The motion to correct the misnomer was granted.