Harvey S. Dorsey

The applicant, LawPRO, paid a joint and several costs award in full on behalf of its insured and sought contribution from the respondent co-debtors.

One respondent filed a proposal in bankruptcy and another was judgment-proof.

LawPRO sought an order that the remaining solvent respondent, Ida, pay an equal share of the insolvent respondents' shortfall.

The court held that LawPRO had standing to seek contribution and applied the equitable principle that solvent co-debtors must rateably share the shortfall of insolvent co-debtors.

Ida was ordered to pay a rateable share of the shortfall in addition to her apportioned share of the costs award.

The parties disagreed over the form of the formal Judgment arising from previous decisions.

The applicants sought to include specific recitals of all materials filed, while the respondent argued that Form 59B does not require particulars of evidence for applications.

The court approved the applicants' draft Judgment, finding no harm and potential benefit in providing specificity, especially given the context of an ongoing arbitration.

A case conference was held to establish a timetable for an upcoming motion for summary judgment.

The court endorsed the schedule agreed to by all counsel, setting deadlines for the delivery of materials, cross-examinations, and factums.

This supplementary costs endorsement clarifies a previous Costs Order dated December 5, 2018.

The defendants requested clarification, while the plaintiffs argued the court was functus officio.

The court rejected the functus officio argument, affirming its jurisdiction to amend the order to correct an omission in expressing its manifest intention.

The clarification specifically addresses the apportionment of costs, confirming that one defendant is to pay 25% of the balance of the plaintiffs' costs, after a third party pays their 25%.

The defendants moved for security for costs against the corporate plaintiff under Rule 56.01(1), alleging insufficient assets in Ontario.

The plaintiff, while not claiming impecuniosity, argued that its financial state was caused by the defendants' alleged wrongful conduct and that its claim had a good chance of success.

The court found the merits of the case to be neutral for the purpose of the motion and determined that the plaintiff failed to demonstrate insufficient assets to post security.

The motion was granted, and the plaintiff was ordered to post security for incurred costs and future discovery costs.

Costs of the motion were awarded to the defendants.

The plaintiff brought a motion seeking an order to exclude co-defendants from attending each other's examinations for discovery or reviewing their transcripts, arguing it was necessary to prevent the tailoring of evidence, particularly given the anticipated credibility issues.

The court considered factors such as common interests, common counsel, the scope of examinations, and the centrality of credibility.

While acknowledging credibility would be an issue, the court found that the plaintiff failed to demonstrate a real and substantial probability that the discovery process would be compromised.

This was especially true given that two key defendants had already been extensively cross-examined on substantive affidavits without any evidence of tailoring or parroting, and their co-parties had access to these transcripts.

The motion for an exclusion order was dismissed, and the defendants were awarded partial indemnity costs.

The plaintiff moved for summary judgment to enforce a foreign arbitration award.

The defendant raised multiple genuine issues requiring trial, including the validity of the arbitration, set-off, scope of arbitration, and identity of the contracting party.

The court dismissed the motion, emphasizing the cautions against partial summary judgment articulated in Hryniak and Butera, noting the risk of inconsistent findings, delay, increased costs, and wasted judicial resources, as the motion would not dispose of the entire action and many issues would remain for trial.

The applicants sought to enforce letters of request issued by a Pennsylvania court against the respondents (Royal Bank of Canada, Peter Gordon, and Minden Gross LLP) to obtain documents and information for a civil action in Pennsylvania.

The court granted the application, finding that the evidence sought was relevant, necessary for trial (including pre-trial proceedings), not otherwise obtainable, identified with reasonable specificity, not contrary to public policy, and not unduly burdensome.

The court emphasized deference to the requesting court's findings and rejected arguments regarding pre-trial use and solicitor-client privilege.

The defendant, a dissolved corporation, brought a motion for security for costs against the plaintiff, a Russian corporation with no assets in Ontario.

The court applied the two-step analysis under Rule 56.01 and found the defendant met the initial burden.

The plaintiff failed to demonstrate that an order for security would be unjust, as the merits of the complex case were deemed neutral and the defendant's dissolved status did not preclude the order.

The motion was granted, and the plaintiff was ordered to post $25,000 in installments up to the pending summary judgment motion.

The plaintiff sued the defendant for the unpaid balance of the purchase price of a property in Iran.

The defendant argued that payment was conditional on clearing a cloud on title and, alternatively, that the claim was statute-barred.

The court found no evidence of the alleged condition and held that the limitation period was extended under s. 11 of the Limitations Act because the parties had engaged a third party (the Baha'i National Spiritual Assembly) to assist in resolving the dispute.

The court ordered the defendant to pay the balance owing, converted to Canadian dollars on specific dates.

The defendant municipality moved for partial summary judgment to dismiss the plaintiff contractor's claim for additional construction fees, arguing the claim was statute-barred.

The plaintiff argued that the limitation period was tolled by promissory estoppel due to ongoing negotiations.

The court found that the cause of action was discovered by January 2010 at the latest, when formal default notices were exchanged, and that the defendant made no representation to forgo its limitation period rights.

The motion was granted and the claim for additional fees was dismissed as statute-barred.

The defendant appealed a master's order granting leave to amend a statement of claim to include relief for recognition and enforcement of a Russian arbitration award under the International Commercial Arbitration Act.

The appellant argued the amendment introduced a new cause of action after the limitation period and relied on a prior decision setting aside default judgment.

The court held that the master's decision correctly found the amendments merely particularized an existing claim referencing the arbitration award and did not introduce a new cause of action.

The prior decision setting aside default judgment was limited to procedural deficiencies in the pleadings and did not extinguish the underlying claim.

The appeal was dismissed and the master's order upheld.

Following the dismissal of a motion challenging Ontario’s jurisdiction simpliciter and asserting forum non conveniens, the successful party sought costs on a partial indemnity basis of approximately $38,000.

The court considered the reasonableness of the claimed preparation time and whether costs should include fees for both senior and junior counsel.

While acknowledging the value of mentoring junior counsel, the court held that the circumstances did not justify indemnifying the successful party for two counsel on the motion.

After assessing the complexity and importance of the motion and the reasonable expectations of the unsuccessful party, the court reduced the requested amount.

Costs were awarded in the amount of $30,000 all inclusive.

The plaintiff brought motions under Rules 5.04 and 26.01 of the Rules of Civil Procedure seeking leave to amend statements of claim in two related actions.

In the 1997 action, the proposed amendments clarified allegations relating to enforcement of a foreign arbitration award.

The court held that the amendments did not introduce a new cause of action but merely provided further particulars and clarification of facts already pleaded, and therefore granted leave to amend.

In the 1998 action, the plaintiff sought to add allegations that a mortgage registered against the defendant’s property was fraudulent and void.

The court found these amendments introduced new causes of action long after the limitation period had expired and refused leave.

The defendants brought a motion to strike affidavits filed by counsel for the plaintiff after cross-examination on an earlier affidavit.

The court held that the subsequent affidavit constituted an improper attempt to repair or explain earlier evidence following cross-examination, effectively amounting to a belated re‑examination contrary to subrule 34.11(3) of the Rules of Civil Procedure.

The court emphasized that re‑examination must occur immediately following cross‑examination and declined to dispense with the rule under Rule 2.03 because no justification was provided.

The June affidavit was struck, while a second affidavit from another lawyer was disregarded as unnecessary and duplicative of an existing transcript.

The applicant mortgagee sought clarification of amendments to a Restraint and Management Order relating to property subject to ongoing criminal forfeiture proceedings.

The court reconsidered wording from an earlier decision and modified several provisions governing access to the property and the scope of available mortgage enforcement remedies.

The court confirmed that the mortgagee could pursue remedies including foreclosure, power of sale, judicial sale, and possession, while revising language concerning access facilitated by the property manager.

The court declined to require that all sale proceeds be paid into court at this stage, finding such an order premature given the unusual procedural context.

The endorsement further directed that all proceedings affecting the property be brought before the same judge to avoid fragmentation.