Irving Marks

Following dismissal of the plaintiff’s $4.5 million action alleging that corporate sponsors of a soccer association owed a duty to ensure adequate insurance coverage for players, the court determined the issue of costs.

The successful defendants sought substantial partial indemnity costs following a Rule 21 motion that terminated the claim at an early stage.

The court held that while the defendants were entitled to significant costs, the hours claimed by counsel were excessive and involved duplication of work.

Considering the factors under Rule 57.01 of the Rules of Civil Procedure, the court reduced the requested amounts and fixed reasonable costs payable to the successful defendants.

Following dismissal of summary judgment motions brought by certain defendants, the court addressed costs.

Although the plaintiff and a defendant successfully opposed the motions, the court found the issues were close calls and that it had not been unreasonable for the moving defendants to bring the motions.

Substantial or elevated indemnity costs were rejected as no reprehensible misconduct was established.

Applying the reasonableness factors under Rule 57.01(1) of the Rules of Civil Procedure, the court fixed partial indemnity costs for both successful parties and ordered that those costs be payable in the cause.

The defendant landlord brought a Rule 21.01(b) motion to strike portions of an amended statement of claim alleging breach of an implied contractual duty of good faith in relation to the termination of a commercial lease.

The plaintiff tenant alleged it was promised 18 months’ notice to vacate but received significantly less, asserting that the landlord’s conduct breached an implied duty of honest and good faith performance.

The court held that Canadian jurisprudence does not recognize an implied duty of good faith that would impose additional obligations inconsistent with the express terms of a commercial lease.

Accepting the pleaded facts as true, the alleged conduct did not defeat the purpose of the lease and could not sustain a claim for breach of an implied duty of good faith.

The impugned paragraphs were struck for disclosing no reasonable cause of action, with leave to amend.

The plaintiff sought certification of a proposed class proceeding against a financial institution relating to losses arising from a fraudulent investment scheme involving a tooth whitening promotion.

Earlier reasons had found that the criteria under s. 5 of the Class Proceedings Act, 1992 were satisfied except for the requirement that the representative plaintiff adequately represent the class.

The court had concerns regarding the plaintiff’s health following a stroke and his ability to perform the role.

After further medical evidence was filed, including expert neurological evidence confirming no cognitive impairment, the court accepted that the plaintiff could adequately represent the class and that the litigation plan addressed communication with class members and management of damages.

The court concluded that the statutory criteria were met and certified the proceeding as a class action.

The plaintiff sought certification of a proposed class action arising from an alleged investment fraud involving monies deposited into bank accounts held at the defendant bank.

Earlier reasons had found the certification criteria satisfied except for the adequacy of the litigation plan under s. 5(1)(e)(ii) of the Class Proceedings Act, 1992.

After filing a revised litigation plan addressing communication with class members, management of damages, and procedural issues including a jury notice, the court determined the deficiencies had been remedied.

The court approved revised common issues and concluded the statutory requirements for certification were met.

The proceeding was certified as a class action and a representative plaintiff was appointed.

The defendants, corporate sponsors of a soccer organization, brought a motion under rules 21.01(1)(b) and 25.11 of the Rules of Civil Procedure to strike a negligence claim arising from a catastrophic soccer injury.

The plaintiff alleged the sponsors had a duty of care to ensure that the organization maintained adequate insurance coverage for players.

The court held that mere financial sponsorship and advertising relationships do not create a proximate relationship giving rise to a duty of care to participants.

The pleadings failed to establish reliance, proximity, or control over the event or insurance arrangements.

The statement of claim disclosed no reasonable cause of action and was struck.

The moving defendants, including a receiver manager and a bank, brought a motion for summary judgment to dismiss the plaintiff condominium corporation's claims for construction deficiencies, breach of warranty, oppression, and conspiracy, as well as various cross-claims.

Applying the 'full appreciation' test from Combined Air, the court found that the voluminous and conflicting evidentiary record precluded making dispositive findings on a summary judgment motion.

The motion was dismissed with respect to the plaintiff and the cross-claiming architect, and the action was directed to proceed to trial.

The plaintiff sought to certify a class action against the Bank of Montreal arising from a $77 million investment fraud perpetrated by Salim Damji.

The plaintiff alleged that BMO knowingly assisted in Damji's breach of trust, knowingly received fraudulent funds, and was negligent in its receipt of these funds.

The court found that the plaintiff satisfied the criteria for certification under s. 5 of the Class Proceedings Act, except for the requirement of a workable litigation plan.

The court adjourned the certification motion to allow the plaintiff to provide an acceptable litigation plan.

The plaintiff sought to certify a class action against the Bank of Montreal (BMO) arising from a $77 million Ponzi scheme perpetrated by Salim Damji.

The plaintiff alleged that BMO knowingly assisted in Damji's breach of trust, knowingly received fraudulent funds, and was negligent in its receipt of these funds.

The court granted leave to bring the certification motion and found that the plaintiff met the first four criteria for certification under s. 5(1) of the Class Proceedings Act.

However, the court found the representative plaintiff's health issues and deficiencies in the litigation plan rendered the final criterion unsatisfied.

The certification motion was adjourned for 30 days to allow the plaintiff to address these deficiencies.

The appellant appealed a trial judgment finding it breached a marketing agreement by unilaterally reassigning four counties from the respondent's territory.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the respondent had complied with its obligation to develop the market to the extent possible, that the entire agreement clause governed over prior understandings, and that extrinsic evidence properly identified the nine counties as the respondent's work zones.

The appellant appealed from a judgment striking its pleadings for failing to disclose a cause of action relating to a breach of a duty of good faith.

The Court of Appeal agreed with the motion judge that the pleadings did not disclose a cause of action and noted that leave to amend had been granted.

The appeal was dismissed with costs.

The plaintiffs brought a motion for leave to appeal a costs order made by the motion judge following a summary judgment motion with divided success.

The motion judge had ordered each party to bear their own costs.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the discretionary costs order and no matter of such importance to justify granting leave.

The appellant appealed the trial judge's disposition of its claim, and the respondent cross-appealed on the issue of costs.

The Court of Appeal dismissed the appeal, finding no error of law and that the trial judge's findings of fact were fully supported by the evidence.

The cross-appeal was also dismissed, as there was no error in the trial judge's exercise of discretion regarding costs.

Costs of the appeal were fixed at $15,000.

The defendants sought leave to appeal an interlocutory injunction that prevented them from forcibly entering the plaintiff's unit and selling her shares prior to trial.

The dispute arose after the plaintiff installed a washer and dryer without the board's approval.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's application of the RJR-MacDonald test for injunctive relief.

The court also held that the matter was not of general public importance, but rather specific to the litigants.

The moving party sought leave to appeal an order allowing the respondent bank to amend its third-party claim.

The amendment asserted a novel tortious duty of care owed by the drawer of a cheque to a collecting bank.

The court denied leave to appeal, finding no good reason to doubt the correctness of the lower court's decision that the novel claim was not certain to fail and should be determined on a full factual record at trial.

Following the disposition of the merits of the appeal on September 25, 2006, the Court of Appeal issued a supplementary endorsement regarding the costs of the application in the court below.

The court set aside the costs order below and awarded the appellants costs of the application fixed at $10,000 all-inclusive.

The appellants obtained loans from the respondent financial institutions to purchase mutual funds based on the advice of their financial advisors.

When the investments failed to perform, the appellants faced margin calls and suffered losses.

They sued the financial institutions, alleging negligence and breach of fiduciary duty for failing to advise them of the risks associated with the loans.

The motion judge granted summary judgment dismissing the claims against the financial institutions.

The Court of Appeal upheld the decision, finding that the relationship between a bank and its customer is generally that of debtor and creditor, and there were no special circumstances or exceptional relationships to give rise to a duty of care or a fiduciary duty to advise the borrowers.

The appellants appealed a decision finding that their conduct in registering a condominium declaration with a bifurcated common expense formula was oppressive.

The formula exempted undeveloped parcels from contributing to the maintenance of a ring road.

The Court of Appeal allowed the appeal, holding that the declaration did not conflict with the Condominium Act, as the Act requires owners to contribute in the proportions specified in the declaration.

Furthermore, the developer's conduct was not oppressive because the formula was fully disclosed to purchasers before they bought their units, and it served a legitimate business purpose related to the staged nature of the development.

The appellant brought a motion to the Divisional Court to appeal a Master's decision striking out certain particulars of a negligence claim against the respondent.

The court determined that the Master's decision was interlocutory, not final, and therefore the proper appeal route was to a single judge of the Superior Court of Justice under s. 17(a) of the Courts of Justice Act.

The court also ruled that the appellant's counsel was not precluded from arguing the subsequent appeal despite having sworn an uncontested affidavit in the proceedings below.

Costs of the day were fixed at $3,000 to be borne by the ultimate losing party.

The appellants brought an appeal of an order by Master Haberman to the Divisional Court.

The court determined that the Master's order was interlocutory and, pursuant to section 17(a) of the Courts of Justice Act, the appeal properly lies to the Superior Court of Justice, not the Divisional Court.

Costs for the appearance were fixed at $3,000, payable by the ultimate losing party on the appeal.