Irwin Albert Duncan

Following a partial judgment requiring the transfer of a property, the successful applicants sought costs.

The court found the applicants were presumptively entitled to costs and had obtained a result more favourable than their settlement offer.

The court fixed costs at $6,500, apportioning $3,000 to the estate and $3,500 personally to the respondent estate trustee, finding she had acted in furtherance of her personal interests as a beneficiary rather than solely in her fiduciary capacity.

This estate application concerned whether residual beneficiaries made an enforceable oral agreement in or about 2009 to transfer estate land to one beneficiary, whose will later gifted the property to a family member.

The responding estate trustee denied any enforceable agreement and relied on s. 4 of the Statute of Frauds.

The court found an oral agreement existed based on cumulative direct and circumstantial evidence, including post-agreement conduct and contemporaneous documents.

The court held the agreement was enforceable through the doctrine of part performance, including waiver of an option over related estate land and longstanding tax payments referable to the disputed property.

Relief ordering transfer of the Bush Lot was granted, while claims for trustee removal, passing of accounts, and damages were adjourned sine die.

The appellants, Jordan Rudiger Zukowski and Rudi Heinz Edwin Zukowski, appealed an order granting summary judgment to the respondent, MarshallZehr Group Inc., regarding the enforceability of a personal guarantee for a project financing loan.

The Court of Appeal dismissed the appeal, finding no error in the motion judge’s refusal to permit cross-examination of the respondent’s representative and no reviewable error in the finding that the respondent did not act in bad faith.

The court held that the issues raised were properly resolved on the record and that the personal guarantee was valid and enforceable.

Following the dismissal of the applicant's claims against her late husband's estate, the respondent sought substantial indemnity costs, alleging reprehensible conduct by the applicant.

The court found that the applicant's conduct, including her vigorous pursuit of the claim and her testimony regarding the marriage contract, did not amount to reprehensible conduct justifying elevated costs.

The court awarded the respondent partial indemnity costs, fixing the amount at $75,000 inclusive of disbursements, plus HST.

Anna Lehmann sought spousal support from the estate of her deceased husband, William Lehmann, and a declaration of sole beneficial ownership of their matrimonial home (Foxboro property) by right of survivorship.

The court dismissed both claims, upholding the validity of the marriage contract's spousal support release and finding that the joint tenancy of the Foxboro property had been severed by subsequent amending agreements, resulting in a tenancy in common with the estate.

The plaintiff abandoned its motion for an interlocutory injunction after nearly two years.

The defendants sought costs of the abandoned motion on a substantial indemnity scale, payable forthwith.

The court held that, absent extraordinary circumstances, costs of an abandoned injunction motion are payable forthwith.

Finding no reprehensible conduct by the plaintiff, the court awarded costs on a partial indemnity scale, fixing them at $65,908.61 for the Racer Defendants and $22,713.82 for the Standard Defendants.

The moving parties brought a motion for contempt against the responding party, a judgment debtor, for failing to answer written interrogatories.

The court previously found the responding party in contempt and adjourned sentencing to allow him to purge.

The court found that the responding party's subsequent answers were inadequate, obfuscating, and failed to provide key financial information, rejecting his claims that poor health prevented compliance.

As a penalty, the court prohibited the responding party from taking any steps in this or related litigation until the contempt is purged.

Following a trial where the plaintiff's claims for damages were entirely dismissed, the successful defendant sought partial indemnity costs.

The plaintiff argued that each party should bear its own costs.

The court found the defendant's claim for costs to be fair and reasonable, ordering the plaintiff to pay $165,630.83 inclusive of disbursements and HST.

Jacobus Hanemaayer was found in contempt of court for wilfully refusing to comply with orders.

Despite claims of poor health and age, he repeatedly failed to appear in court and provided insufficient medical evidence.

The court found his health claims to be a "sham" based on evidence from a process server who observed him operating an electric scooter alone.

Consequently, the court decided against immediate sentencing and instead issued a discretionary bench warrant, requiring Hanemaayer to appear in person to show cause why he should not be sentenced to incarceration for his deliberate and wilful non-compliance with court orders.

The plaintiff, Willowbrook Nurseries Inc., sued the Royal Bank of Canada for breach of contract and bad faith, alleging the bank failed to provide reasonable notice of changes to its lending arrangements and restricted financing.

Willowbrook claimed an overarching agreement for continued credit, including temporary accommodation requests (TARs), which RBC abruptly ceased.

The court found that the relationship was contractual, not fiduciary, and while RBC's actions might have been financially unwise, they were not in bad faith.

The bank exercised its contractual entitlements and provided reasonable notice for Willowbrook to seek alternative financing.

The plaintiff's claims for specific, goodwill, productivity, general, and punitive damages were dismissed.

The moving party sought an order dismissing the plaintiffs’ claims and various crossclaims against a defendant business entity whose operator had not been located or served.

The third party opposed the motion, arguing that dismissal would effectively extinguish its contribution and indemnity claim because any new fourth party proceeding would likely be barred by the limitation period.

The court considered the interaction of Rules 28, 29.05, and 29.11 of the Rules of Civil Procedure and the principle in Rule 1.04 that the rules should be liberally construed to secure determination on the merits.

Although the third party had procedurally advanced its claim by crossclaim rather than fourth party claim, the court declined to eliminate what could be a potentially meritorious claim on purely procedural grounds.

The motion to dismiss the claims against the absent defendant was therefore refused.

Following dismissal of a trustee’s motion seeking directions to terminate certain condominium purchase agreements, the court addressed costs.

The purchasers sought costs against the trustee or alternatively against mortgagees who supported the trustee’s position.

The court held that although the mortgagees were not formal parties to the motion, they actively participated and had a direct financial interest in the outcome, making it appropriate to hold them responsible for costs.

The court also considered principles governing costs for self-represented litigants and limited recovery to proven disbursements where no foregone remunerative activity was demonstrated.

Costs were awarded to the purchasers and made payable jointly and severally by the mortgagees.

The court-appointed Trustee of an insolvent condominium development brought a motion for advice and directions, seeking permission to terminate pre-sale purchase agreements for buyers who had purchased two parking units, due to a shortage of parking spaces in the building.

The Trustee proposed that these buyers relinquish one parking space for a price reduction, or face termination of their agreements.

The court applied the test of balancing the equitable considerations of all stakeholders.

Finding that the mortgagees had accepted the risk of the parking shortage and that the purchasers would suffer significant financial hardship and loss of equity if their agreements were terminated, the court dismissed the Trustee's motion.

The applicants sought a review and adjustment of the accounts of a private receiver and its legal counsel regarding the windup of a bankrupt company.

The court found that the receiver's fees of over $106,000 and legal fees of over $35,000 were excessive given the simplicity of the receivership, the extensive assistance provided by the debtor, and an initial estimate of $30,000 to $50,000.

The court reduced the receiver's fees to $50,000 and the legal fees to $28,516.79, and ordered the receiver to release $50,000 in surplus funds it had withheld.

The appellants guaranteed a loan made by the respondent to a retirement residence developer.

When the developer defaulted, the respondent sued the appellants on the guarantee and obtained summary judgment.

On appeal, the appellants argued they were released from liability because the loan terms were materially altered without their consent, specifically by converting the fixed-term loan to a demand loan and entering a forbearance agreement.

The Court of Appeal allowed the appeal, finding the motion judge failed to consider the totality of the evidence regarding material alterations and applied the incorrect test for prejudice.

The summary judgment was set aside and the matter referred to trial on the defences of material alteration and laches.

Following a prior summary judgment awarding the plaintiff approximately $994,728.92 on a guarantee claim, the court addressed the appropriate quantum of costs.

The successful party sought $32,500 in partial indemnity costs, while the responding parties argued for $20,000 and challenged docketed hours, hourly rate, and the use of senior counsel rather than junior counsel.

The court held that costs are determined based on what is fair and reasonable rather than through strict percentage formulas and found the docketed hours reasonable.

The court also rejected arguments that work should have been delegated to junior counsel, noting that the experience of senior counsel may reduce total time required.

Partial indemnity costs were fixed at $30,000 inclusive of HST and disbursements.

The plaintiff brought a motion for summary judgment against the defendants as guarantors of a $500,000 loan provided for a retirement home construction project.

The defendants argued they were released from their guarantees due to material alterations to the loan agreement, accord and satisfaction, premature demand, and laches.

The court applied the 'full appreciation test' under Rule 20 and found no genuine issue requiring a trial.

The court rejected all defences, finding no material alteration, no acceptance of units in satisfaction of the debt, that the loan was due, and that the delay in demanding payment benefited rather than prejudiced the defendants.

Summary judgment was granted in the amount claimed.

Following a motion in which the corporate plaintiff’s claim was dismissed and the individual plaintiff’s action was stayed for non‑compliance with an earlier costs order, the court determined the defendant’s entitlement to costs.

The defendant sought partial indemnity costs for the motion and for defending the corporate plaintiff’s action.

The self‑represented plaintiff opposed costs on grounds unrelated to the amounts claimed and attempted to revisit the merits of the earlier motion.

Applying the principles governing reasonable expectations of the losing party, the court held the claimed partial indemnity costs were fair and reasonable.

Costs of $10,343 were awarded to the defendant for the motion and one‑half of the action costs.

The appellant appealed a trial judgment that found no wrongdoing or improper conduct by the respondents.

The Court of Appeal dismissed the appeal, holding that the trial judge properly applied the relevant legal test and that the factual findings did not support the application of s. 178(1)(d) of the Bankruptcy and Insolvency Act.

Costs were awarded to the respondents.

The appellants registered construction liens against the respondent's property for the design and installation of a custom-designed truck frame assembly line.

The trial judge held that the assembly line did not meet the definition of an 'improvement' under the Construction Lien Act, as it was portable and not an integral part of the building.

The Divisional Court dismissed the appeal.

The Court of Appeal upheld the lower courts' decisions, finding no palpable and overriding error in the trial judge's factual determination that the assembly line was not an improvement.