Ira Nishisato

Following the dismissal of motions to set aside service ex juris and to stay or dismiss an action for lack of jurisdiction, the court determined the appropriate costs award.

The successful party sought substantial partial indemnity costs.

The court reduced the claimed costs to reflect time spent on unsuccessful jurisdictional arguments, unnecessary steps, and work unrelated to the motions.

Costs were ultimately fixed at a reduced amount and apportioned severally among the moving defendants, reflecting their differing roles in the litigation, including the raising of a forum non conveniens argument.

Foreign defendants moved to set aside service ex juris of a statement of claim and to stay or dismiss an Ontario action alleging fraudulent conveyance of wind turbine business assets.

The plaintiff had previously obtained judgment in Ontario for breach of a letter of intent to market turbines in Canada, and alleged the defendants transferred assets to avoid satisfying that judgment.

The court held that a presumptive connecting factor existed because a contract made and breached in Ontario was connected to the dispute regarding the asset transfer.

The defendants failed to rebut the presumption of jurisdiction and did not demonstrate that another forum, such as California, was clearly more appropriate under forum non conveniens principles.

Service ex juris and substituted service were upheld and the action was permitted to proceed in Ontario.

Following the dismissal of the foreign tobacco defendants' jurisdictional appeals, the Court of Appeal determined the costs of the appeals.

The appellants argued that costs should be capped at $100,000, asserting that the Crown treated the five appeals as one by filing a common factum.

The Court rejected this argument, finding no $100,000 ceiling exists for costs awards in the Court of Appeal.

Given the complexity, the $50 billion stakes, and the necessity of responding to five separate appeals, the Court fixed the Crown's partial indemnity costs at $237,332.50, apportioned between the BAT and RJR appellants.

Ontario sued foreign and domestic tobacco manufacturers under the Tobacco Damages and Health Care Costs Recovery Act, 2009 to recover health care costs.

Six foreign defendants brought a motion to stay or dismiss the action for lack of jurisdiction, which was dismissed.

The foreign defendants appealed.

The Court of Appeal dismissed the appeal, finding that the statutory claim was analogous to a tort committed in Ontario, establishing a presumptive connecting factor under the Van Breda framework.

The Court also upheld the motion judge's findings that Ontario established a good arguable case and affirmed the costs award.

The plaintiff sought additional provisions to be included in a previously granted default judgment arising from a fraud action.

Specifically, the moving party requested language declaring that the judgment survived bankruptcy under s. 178 of the Bankruptcy and Insolvency Act and an order relieving it from making a separation payment under a termination agreement.

The court held that default judgment cannot grant relief not sought in the originating process or the notice of motion.

The court further held that whether a judgment survives bankruptcy discharge must be determined in proceedings under s. 178 of the BIA.

The requested additions were refused and the submitted order was amended accordingly.

Following dismissal of jurisdiction motions brought by several foreign tobacco companies in a health care cost recovery action, the court determined costs.

The unsuccessful moving parties argued that earlier evidentiary and procedural steps constituted separate proceedings and sought substantial costs for those steps.

The court rejected that characterization, holding that all preliminary steps formed part of the overall jurisdiction challenge and that distributive costs awards based on success on individual steps should be avoided.

Applying Rule 57.01 factors and general costs principles, the court found the responding party was the successful party and entitled to costs, subject to reductions reflecting partial success on certain evidentiary and motion issues.

The court awarded partial indemnity costs of $425,000 plus disbursements, allocating liability between two groups of moving defendants.

The Crown brought an action under the Tobacco Damages and Health Care Costs Recovery Act against several domestic and foreign tobacco companies, claiming $50 billion for health care costs related to tobacco disease.

Six foreign defendants brought motions to set aside service ex juris and stay or dismiss the action, arguing the Ontario court lacked jurisdiction simpliciter.

The court dismissed the motions, finding that the Crown had established a good arguable case that the foreign defendants conspired and acted in concert to commit tobacco-related wrongs, establishing a real and substantial connection to Ontario.

The appellant appealed a summary judgment ordering payment of unpaid invoices, arguing the motion judge erred in rejecting its claim for equitable set-off and denying a stay of execution pending the determination of its counterclaim.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's analysis of the set-off factors or the test for a stay.

The applicant, a full member of the Ontario Association of Landscape Architects, brought an application for judicial review to quash a by-law that reduced the number of examination sections required for full membership from five to three.

The applicant argued the by-law was unreasonable, created two categories of full members, and was contrary to the public interest.

The Divisional Court dismissed the application, finding that the enactment of the by-law was a legislative function not amenable to judicial review for reasonableness, the by-law was intra vires the Association's statutory powers, and the court should defer to the Association's expertise in setting professional standards.

The appellant appealed a sentence imposing three months for contempt and an additional six months for the permanent loss of evidence.

The Court of Appeal found no basis in law for the six-month sentence for loss of evidence and struck it down.

However, the court upheld the three-month sentence for contempt, noting the trial judge's sustainable findings that the contempt was egregious and intentional.

The moving party, having been committed for civil contempt and sentenced to nine months' imprisonment, brought a motion to stay the sentence pending his appeal.

The Court of Appeal granted the stay, noting that whether analyzed under the civil test for a stay or the criminal provisions for judicial release pending appeal, the moving party raised serious questions to be determined and would suffer irreparable harm if required to serve the sentence before the appeal was heard.

The stay was granted subject to strict conditions, including a requirement to surrender into custody prior to the appeal hearing.

The appellant appealed an interlocutory order of a motions judge who gave directions to an Assessment Officer regarding the assessment of costs.

The appellant argued the motions judge was functus officio and could not clarify that the respondents were entitled to non-tariff disbursements after the assessment had already commenced.

The Divisional Court dismissed the appeal, holding that the motions judge retained jurisdiction under the Courts of Justice Act and the Rules of Civil Procedure to implement and clarify his costs order, and was not varying it.

The appellants appealed a decision regarding their right to an electricity connection under s. 28 of the Electricity Act.

The Court of Appeal dismissed the appeal, finding that the appellants do not have an unqualified right to connection because their property can only be accessed over a third party's property and does not lie 'along any of the lines of the distribution system'.

The court held that Toronto Hydro's conditions of service requiring easements are reasonable and fall within its regulatory scheme.

The appellant, representing minority shareholders of Asbestos Corp., sought an order from the Ontario Securities Commission (OSC) under s. 127 of the Securities Act to remove the trading exemptions of the Quebec Government and its Crown corporation after they acquired control of Asbestos Corp. without making a follow-up offer to minority shareholders.

The OSC declined to exercise its public interest jurisdiction, finding insufficient transactional connection to Ontario and no intention to avoid Ontario law.

The Supreme Court of Canada upheld the OSC's decision, ruling that the standard of review is reasonableness and that the OSC properly exercised its preventive, non-remedial discretion based on relevant factors.