Helen A. Daley

This is a costs endorsement following the Court of Appeal's dismissal of an appeal.

The respondent sought costs on a substantial indemnity basis, citing the nature of the underlying allegations and the trial judge's findings.

The appellants argued for costs on a partial indemnity basis.

The court awarded costs to the respondent on a partial indemnity scale, finding that while substantial indemnity costs were appropriate at trial due to the appellants' conduct, there was no principled basis to impose such costs for the appeal itself.

The appellants had a right to appeal and raised legitimate issues.

This appeal concerns a serious and sustained Internet defamation campaign orchestrated by the appellant Rabinowitz against the respondent Rutman, a Toronto chartered accountant and businessman.

Rabinowitz admitted liability for defamatory statements posted on the Internet alleging tax fraud, theft, and cheating.

The trial judge found the appellants Bergman and Artcraft Company Inc. jointly and severally liable for the defamation.

The trial judge awarded $200,000 in general damages, $200,000 in aggravated damages, and $250,000 in punitive damages against Rabinowitz, and $50,000 in punitive damages against Bergman.

The appellants appealed on grounds of liability and damages.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings on concerted action liability, vicarious liability of the corporation, and the quantum of damages awarded.

The appellants commenced a civil action for misfeasance in public office against a Canada Revenue Agency investigator and the Attorney General of Canada, alleging that the investigator had intentionally sworn a false Information to Obtain search warrants.

The action was discontinued on consent during trial after the appellants failed to establish key elements of their claim.

Approximately one month later, the appellants received Notices of Reassessment from the Minister of National Revenue reversing the original tax assessment.

The appellants moved to set aside the discontinuance based on these reassessments as fresh evidence.

The motion was dismissed, and the appeal was dismissed on the grounds that the reassessments could not establish the elements of misfeasance in public office and did not meet the high threshold for setting aside a consent discontinuance.

The applicants brought a motion to set aside the discontinuance of their action for misfeasance in public office against the respondents.

The action was discontinued after three days of trial following a settlement.

The applicants sought to adduce new evidence, specifically Canada Revenue Agency re-assessments from January 2016 that allowed their tax objections, arguing these constituted exceptional circumstances.

The court dismissed the motion, finding that the new evidence did not meet the criteria for setting aside a discontinuance, as it did not refer to events leading to the action and would not have changed the original outcome or proven misfeasance.

The court also addressed the inapplicability of res judicata and issue estoppel regarding findings from prior criminal proceedings.

An investor sued a discretionary portfolio manager and its representatives for breach of fiduciary duty, negligence, and breach of contract after the manager failed to promptly diversify an inherited, highly concentrated equity portfolio heavily weighted in Nortel, BCE, and TD shares.

The court found the manager knew diversification was the client's objective but failed to implement it or clearly communicate any staged diversification strategy or associated risks.

The court held that maintaining the concentrated portfolio for several months without proper disclosure or client agreement breached the manager’s duties of care and contractual obligations.

However, individual defendants without trading authority were not liable.

Damages were assessed based on a diversified portfolio consistent with the client’s Investment Policy Statement.

The defendant, a former investment advisor, brought a motion for summary judgment to dismiss the plaintiff employer's action for breach of contract.

The plaintiff sought to recover amounts paid to settle a client's lawsuit, relying on an indemnity clause in the defendant's employment contract.

The defendant argued the claim was statute-barred under s. 18 of the Limitations Act, 2002, which imposes a two-year limitation period for contribution and indemnity claims running from the date the first alleged wrongdoer is served.

The court dismissed the motion, finding that the plaintiff's action was for breach of contract, not a claim for contribution and indemnity between wrongdoers.

Therefore, s. 18 did not apply, and the limitation period began to run when the settlement was reached, making the action timely.