Hilary Claire Book

The plaintiff sought costs of $26,318.02 on a partial indemnity basis after successfully defeating the defendants' motion to stay the action on jurisdictional grounds.

The defendants did not dispute entitlement but argued the quantum was excessive, suggesting a range of $10,000 to $14,000.

The court found the time expended by the plaintiff was excessive for a partial indemnity award and fixed costs at $21,000 all inclusive.

The defendants brought a jurisdiction motion seeking to stay an Ontario action arising from a cross-border commercial relationship involving a Nigerian oil and gas opportunity.

The court held that Ontario had jurisdiction simpliciter because the foundational agreements were made in Ontario and one agreement contained an Ontario governing law and attornment clause.

Applying the forum selection and forum non conveniens principles, the court found no rebuttal of the presumptive connecting factor and held that Nigeria was not clearly the more appropriate forum.

The motion to stay was dismissed.

At a contempt sanction hearing arising from bankruptcy and fraudulent conveyance proceedings, the Trustee sought leave to withdraw the motion for further incarceration after obtaining new information that undermined the bona fides of the creditor applicants' underlying claims and disclosure.

The court held that only the Trustee had standing to enforce the contempt order within the fraudulent conveyance action, and that leave was required because contempt at the sanction stage is a matter between the court and the contemnor.

Applying the full and frank disclosure obligation governing ex parte relief, the court found material non-disclosure in obtaining the Mareva and Anton Piller orders and rescinded those orders.

Although the respondent debtor had not fully purged contempt, further incarceration was not warranted; the motion was withdrawn, Christina Chiang was found to have purged her contempt, and costs were awarded to the Trustee and Christina Chiang against the creditor applicants.

The appellant, Korea Data Systems (USA), Inc., was successful on a complex motion heard by the Court of Appeal for Ontario.

The court awarded the appellant costs fixed at $25,000, inclusive of disbursements and taxes, to be paid jointly by the Trustee and Christina Chiang.

The plaintiff landlord sought summary judgment for approximately $800,000 in alleged unpaid rent from its commercial tenant and guarantor, arising from the tenant paying only 50% of minimum rent after opening its store before certain parking spaces were provided.

The dispute turned on whether a lease amending agreement implicitly removed the tenant’s contractual right to pay reduced rent when opening conditions were unmet.

The court applied principles of contractual interpretation emphasizing objective intention derived from the text and surrounding circumstances.

It held that the amendment concerning alternative parking did not modify the tenant’s right under the original lease to pay 50% rent until the required parking spaces were delivered.

The landlord’s claim for back rent was dismissed and the related summary judgment motion by the landlord’s former lawyers seeking dismissal of the negligence claim against them was also dismissed.

The plaintiff sought to appeal a costs order arising from a fraudulent conveyance action.

The motion judge had ordered the plaintiff to pay the defendant's costs and refused to allow a set-off for the amount the defendant owed the plaintiff.

The defendant argued leave to appeal was required under s. 133(b) of the Courts of Justice Act.

The Court of Appeal held that leave was not required because the refusal of a set-off had a substantive effect on the plaintiff's legal rights, extending beyond mere entitlement to and quantum of costs.

The court also declined to order security for costs and directed that the costs appeal be heard with the main appeal.

In advance of a scheduled sanction hearing for contempt findings, the trustee in bankruptcy and two contemnors moved for broad production of documents arising from related litigation in California involving the respondent corporation.

The moving parties sought depositions, financial statements, and additional litigation materials, arguing the information was relevant to their ability to answer or mitigate prior contempt findings and the sanctions to be imposed.

The court applied the relevance standard previously articulated for the sanction hearing and declined to grant a sweeping production order that would effectively retry the foreign proceedings.

Limited production was ordered, including five deposition transcripts of a key corporate officer and financial statements of the respondent corporation.

Requests for additional documents concerning alleged “straw sale” transactions were refused.

Following a fraudulent conveyance trial in which allegations of conspiracy and damages against a defendant were rejected, the successful defendant sought substantial indemnity costs.

Although the court had found the defendant assisted in attempts to hinder collection efforts, it declined to impose damages and granted no substantive relief against her.

The court held that her status as a contemnor did not bar a costs award, particularly given that the plaintiffs had pursued duplicative litigation contrary to earlier representations and had failed to prove damages.

Substantial indemnity costs were warranted due to unproven allegations of fraud and the breach of a prior representation to the court.

Costs of $665,990.96 were awarded jointly and severally against the opposing parties, with a solicitor’s lien recognized under the Bankruptcy and Insolvency Act.

The defendants, previously found in contempt of multiple court orders relating to bankruptcy and asset disclosure, sought an order requiring broad disclosure of documents from the plaintiffs for an upcoming contempt sanction hearing.

The court considered privilege claims over numerous documents, including solicitor‑client communications, settlement communications, and materials arising from joint retainers.

The court held that several documents were not protected or that privilege was displaced by competing public interests, including the integrity of ex parte orders and prior incarceration resulting from the proceedings.

Evidence suggesting potential fraud by related corporate actors and possible nondisclosure in earlier applications justified expanded disclosure.

The court ordered production of specified materials and directed that the corporate plaintiff produce all further relevant documents subject to a privilege schedule.

Following extensive trial reasons in complex bankruptcy and fraud proceedings, the court issued a second case conference memorandum addressing outstanding procedural and remedial issues.

The court directed that issues concerning damages recoverable by a creditor, tracing relief, and costs orders against certain defendants be scheduled before the associate chief justice who presided over related contempt proceedings.

The memorandum also clarified that a previously ordered constructive trust over the bankrupt’s property should be incorporated into the final order without further submissions.

The court established a timetable for written submissions on post‑judgment interest relating to an earlier judgment and on the terms of a Mareva injunction in aid of execution.

The decision functioned primarily as case management to finalize remaining issues in the litigation.

The case management judge issued directions regarding the scheduling and sequencing of outstanding issues in a complex bankruptcy proceeding.

The court ordered written submissions for issues concerning the disclosure of the Trustee's report and the release of funds, while deferring other matters, including examinations and discharge hearings, until the trial judge releases supplementary reasons and determines contempt sentencing.

In a bankruptcy proceeding on the Commercial List, counsel alerted the court that its earlier endorsement had not addressed a specific tab in the Brief of Privileged Documents.

The court considered whether the materials contained in that tab were privileged.

Because the tab excerpted material from a settlement conference brief previously held to be privileged, the court confirmed that the tab itself was also privileged.

The endorsement was corrected by way of corrigendum to reflect that determination.

Minority shareholders sought relief under ss. 207 and 248 of the Business Corporations Act (Ontario) to restrain a majority shareholder from convening a meeting to remove a director and potentially distribute corporate assets following the sale of the company’s principal property.

The dispute concerned three contested liabilities, including a claimed success fee, an assigned commission agreement, and disputed legal accounts.

The court found that allowing the majority shareholder to control the board and distribute funds without maintaining adequate reserves could constitute oppressive or unfairly prejudicial conduct toward minority shareholders and potential creditors.

The court enjoined the shareholders’ meeting and ordered that corporate funds be preserved through specific holdbacks pending determination of the disputed claims.

The defendant brought a motion under Rule 56.01 of the Rules of Civil Procedure seeking security for costs against a corporate plaintiff with insufficient assets in Ontario.

The plaintiff conceded it lacked assets but argued that both the corporation and its sole shareholder were impecunious and that ordering security would stifle a meritorious claim for breach of contract and lost profits.

The court reviewed the jurisprudence governing corporate impecuniosity and the evidentiary burden on shareholders to show they cannot raise funds to post security.

Despite limited financial disclosure, the court accepted sworn evidence that both the corporation and its shareholder lacked the ability to provide security and found that denying the plaintiff the ability to proceed would result in injustice.

The motion for security for costs was therefore dismissed, though the successful plaintiff was denied costs due to inadequate disclosure during the motion.

The appellants brought a motion to stay their own appeal pending the trial judge's determination of several outstanding issues following a complex, multi-party trial involving allegations of fraudulent conveyance and conspiracy.

The respondents opposed the stay, arguing the issues relating to them were discrete and finally disposed of.

The Court of Appeal held that the 'interests of justice' test, rather than the RJR-Macdonald test, applies when a party seeks to stay an appeal pending another body's decision.

Balancing the need for expeditious justice against the benefits of a single appeal, the court granted a 120-day stay of the appeal, on the condition that the appellants immediately order the necessary transcripts.

The appellant, a retail tenant, appealed the dismissal of its breach of contract claim against its landlord for failing to provide additional parking spaces.

The trial judge found a breach but concluded the appellant failed to prove the breach caused a loss, as expert evidence showed vacant spaces were available during peak periods.

The Court of Appeal upheld this finding and dismissed the appeal.

However, the Court granted leave to appeal the trial costs order, finding the trial judge erred in using non-Rule 49 offers to offset time spent on an unsuccessful defence.

The Court awarded the respondents $200,000 in trial costs and $30,000 in appeal costs.

The plaintiffs sought to enforce a California judgment of approximately (US)$17 million against the defendant Jay Chiang and sought a declaration that the debt survives his bankruptcy discharge under s. 178(1)(d) of the BIA.

The plaintiffs also brought a second action alleging that Jay Chiang and numerous family members engaged in fraudulent conveyances and a conspiracy to hide assets and frustrate collection efforts.

The court enforced the California judgment in the amount of (US)$9,678,832 but declined to declare that the debt survives bankruptcy, finding no fiduciary duty was owed to the plaintiffs.

The court found Jay Chiang liable for fraudulent conveyances and conspiracy, but dismissed the claims against most of the other family members, finding they were unwitting conduits used by Jay Chiang.

Following a civil judgment awarding $3.5 million, the court determined the appropriate quantum of costs and pre-judgment interest.

The parties agreed the successful party was entitled to partial indemnity costs to September 30, 2010 and substantial indemnity costs thereafter but disputed the applicable hourly rates.

The court fixed partial indemnity rates for counsel after mediation and accepted substantial indemnity rates calculated at 1.5 times the partial indemnity rate pursuant to Rule 1.03 of the Rules of Civil Procedure.

The court also addressed deductions for certain attendances and confirmed taxable disbursements.

Pre-judgment interest was ordered on the judgment amount from August 27, 2003 at 3.3% pursuant to s.127(1) of the Courts of Justice Act.

The plaintiff mortgagor brought an action against the defendant mortgagees for the improvident sale of a 125-acre development property under a power of sale.

The property was sold for $12.5 million.

The court found that the defendants failed to take reasonable precautions to obtain the fair market value of the property, having listed it at an inordinately low price, failed to adequately market it, unreasonably restricted the field of potential buyers, and acted with undue haste.

After reviewing competing appraisal evidence, the court determined the fair market value of the property at the time of sale was $16 million.

The court awarded the plaintiff $3.5 million in damages, representing the difference between the fair market value and the sale price.

The appellants appealed an interlocutory order that struck their claim against a corporate representative personally and imposed conditions on an injunction restraining mortgage enforcement.

The Court of Appeal dismissed the appeal, finding that the pleadings disclosed no personal cause of action against the representative and that the motion judge properly exercised his discretion in requiring the appellants to pay renewal fees and monthly mortgage payments as a condition of equitable relief.