Ilan Ishai

This was a costs decision following dismissal of the plaintiff's summary judgment motion and the granting of the defendants' cross-motion for summary judgment dismissing the action against them.

The successful defendants sought $29,905.98 in costs on a partial indemnity basis.

The self-represented plaintiff argued the claim was excessive and that the matter had been over-lawyered, submitting that only provable disbursements should be awarded.

The court agreed that costs should reflect a fair and reasonable amount rather than a precise hourly calculation and fixed costs at $25,000 all inclusive.

The self-represented plaintiff brought a motion for summary judgment against a mortgage brokerage and two of its brokers for an allegedly unpaid short-term loan made to facilitate a real estate transaction.

The plaintiff claimed the brokers orally agreed to be borrowers and guarantors.

The defendant brokers brought a cross-motion for summary judgment dismissing the action against them.

The court applied the Hryniak framework and used its fact-finding powers under Rule 20 to determine that the plaintiff's version of events was implausible and unsupported by documentation.

The court found no contractual relationship existed between the plaintiff and the brokers, and noted that any oral guarantee would be unenforceable under the Statute of Frauds.

The plaintiff's motion was dismissed and the defendants' cross-motion was granted, dismissing the action against them.

The appellants advanced funds to Cash Store, a payday lending company operating under CCAA protection.

They appealed a motion judge's dismissal of their claim that they were the sole legal and beneficial owners of loan payments and accounts receivable from Cash Store's customers.

The motion judge found that the actual practices of the parties, including the payment of interest and commingling of funds, reflected a debtor-creditor relationship rather than the principal-broker relationship set out in their agreements.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's factual determinations.

The plaintiff moved for judgment against a defendant who had been noted in default after his statement of defence was struck and he failed to participate in the litigation process.

The action arose from a failed agreement of purchase and sale for a ski resort property valued at $16 million, where the purchasing corporation and its shareholders failed to complete the transaction.

The court granted leave under Rule 48.04(1) of the Rules of Civil Procedure to bring the motion despite the matter having been set down for trial, finding a substantial and unexpected change in circumstances due to the defendant’s post‑trial-setting default and non-participation.

Because the defendant was noted in default, the allegations in the statement of claim were deemed admitted.

The court accepted the plaintiff’s appraisal evidence and awarded damages for breach of contract and misrepresentation.

Following certification of a pension-related class proceeding, the plaintiff sought partial indemnity costs of over $210,000 for the certification motion.

The defendants conceded entitlement to costs but argued the claimed amount was excessive and opposed joint and several liability.

Applying the principles governing certification motion costs, including those articulated in Pearson v. Inco Ltd., the court determined that the plaintiff’s claimed costs were somewhat excessive and unsupported in part.

The court fixed fair and reasonable partial indemnity costs at $175,000 inclusive of disbursements and taxes.

The defendants were not held jointly and severally liable; instead, four groups of defendants were ordered to each pay an equal share.

The appellant appealed a decision of the Criminal Injuries Compensation Board denying his claim for compensation after his housemate set fires in their residence and uttered death threats.

The Divisional Court found that the Board erred in law by requiring the appellant to prove the alleged offender intended to injure him through the arson, contrary to established case law.

The court allowed the appeal and remitted the matter back to the Board for a re-hearing before a newly constituted panel.

The plaintiff sought to certify a class action on behalf of members of the Eastern Canada Car Carriers Pension Plan against the plan's trustees, administrative agent, and actuaries.

The plaintiff alleged that the defendants negligently or in breach of trust granted early retirement benefits when the plan had ongoing solvency issues, leading to a reduction in benefits for plan members.

The court found that the pleadings disclosed causes of action in negligence and breach of trust, the class was identifiable, there were common issues, a class proceeding was the preferable procedure, and the representative plaintiff was suitable.

The motion for certification was granted.