Ivan Y. Lavrence

The appellant, Medcap Real Estate Holdings Inc., appealed the dismissal of its motions to stay or dismiss actions brought by Bennington Financial Corp. and Heffner Investments Limited.

Medcap argued that the respondents breached the immediate disclosure rule by failing to disclose a verbal agreement requiring any settlement with Medcap to include all creditors.

The Court of Appeal affirmed the motion judge's finding that the agreement did not need to be disclosed as it did not fundamentally alter the litigation landscape or the adversarial relationship between the parties.

The appeals were dismissed, and costs were awarded to the respondents.

This is a costs ruling following the dismissal of a motion by Medcap Real Estate Holdings Inc. to dismiss or stay multiple actions brought by Bennington Financial Corp. Medcap had argued that Bennington failed to disclose a settlement agreement that altered the litigation landscape.

The court previously found no disclosure requirement and dismissed Medcap's motion.

In this costs decision, Bennington sought substantial indemnity costs, arguing the motion was complex and an attack on its counsel.

The court awarded partial indemnity costs, finding Medcap's conduct did not warrant sanction.

The court also addressed the assessment of costs for in-house counsel, adjusting Bennington's claimed hourly rates to reflect a reasonable partial indemnity rate.

The defendant, Medcap Real Estate Holdings Inc., brought motions to dismiss or stay actions by Bennington Financial Corp. and Heffner Investments Limited.

Medcap alleged that the plaintiffs, along with other non-parties, entered into an undisclosed agreement to only settle collectively, which Medcap argued constituted an abuse of process requiring immediate disclosure.

The court found that such a verbal "settle with one, settle with all" agreement existed.

However, the court determined that this agreement was not required to be disclosed because it did not "entirely change the landscape of the litigation in a way that significantly altered the adversarial relationship among the parties or the dynamics of the litigation" as the plaintiffs were already aligned in interest through prior agreements and conduct.

Consequently, Medcap's motions were dismissed.

Medcap Real Estate Holdings Inc. appealed a bankruptcy order made against it, arguing the application judge erred in not exercising discretion to dismiss the application under s. 43(7) of the Bankruptcy and Insolvency Act.

Medcap claimed it could pay its debts, the application was improperly motivated, and a bankruptcy would serve no purpose.

The Court of Appeal dismissed the appeal, finding Medcap failed to prove its ability to pay all debts, that the applicants had an improper motive, or that a bankruptcy would be purposeless, thereby upholding the application judge's discretionary decision.

The defendants and third party brought a motion for security for costs against the corporate plaintiffs, who operated a fitness club before defaulting on their commercial lease and equipment leases.

The court found there was good reason to believe the plaintiffs had insufficient assets in Ontario to pay costs.

The plaintiffs failed to demonstrate sufficient assets, impecuniosity, or a good chance of success on the merits of their conspiracy and conversion claims.

The court ordered the plaintiffs to post $80,000 in security for costs for each of the Crunch defendants, the Church defendant, and the third party.

Five creditors brought an application for a bankruptcy order against the respondent debtor.

The court found that two of the applicants, Groia and Anne Wilson, had debts owing in excess of $1,000 at the time of the application.

The court also found that the respondent had committed an act of bankruptcy by ceasing to meet its liabilities generally as they became due, given the multiple outstanding debts and judgments against it.

The court declined to exercise its discretion to dismiss the application, noting the respondent's failure to prove its ability to pay its debts and the presence of suspicious circumstances regarding its property dealings.

The bankruptcy order was granted.

The City of Toronto brought a special case motion to determine the scope of contribution and indemnity claims between Toronto Hydro-Electric Systems Ltd. and Gonte Construction Limited following a bilateral settlement between Toronto Hydro and the City.

The court addressed three questions: (1) whether Toronto Hydro's third-party claim for contribution and indemnity against Gonte in tort was limited to Gonte's several share of liability under the Negligence Act; (2) whether Gonte could claim contribution and indemnity from the City if Toronto Hydro could claim the full amount against Gonte in tort (this question was agreed upon by the parties); and (3) whether Gonte could claim common law contribution and indemnity from the City if found liable in contract.

The court ruled that Toronto Hydro's tort claim against Gonte is limited to Gonte's several share of liability, but Gonte can pursue a common law claim for contribution and indemnity from the City if found liable in contract, given the developing nature of the law in mixed contract and tort cases.

The appellant appealed a judgment ordering him to pay $1,293,734.54 owing on a private residential mortgage granted to the respondents in February 2011.

The appellant raised two grounds of appeal: that the trial judge erred in refusing to grant an adjournment requested on the trial date and in proceeding with the trial in the appellant's absence.

The appellant also sought to introduce fresh evidence.

The Court of Appeal dismissed the appeal, finding that the trial judge properly exercised her discretion in refusing the adjournment given the lengthy history of the litigation, multiple pre-trials, prior adjournment, the appellant's failure to retain counsel, and the respondents' readiness to proceed.

The court also found that the appellant's proposed defence lacked merit and that any fresh evidence would not have yielded a different outcome.

The plaintiff abandoned a motion for directions regarding garnishment and priority issues.

The non-party, Fraser Mason, sought costs of $63,644.52 on a partial indemnity scale for the abandoned motion.

The court found the claimed amount excessive, noting that portions of the costs related to other aspects of the litigation and that both parties had engaged in aggressive litigation tactics.

The court fixed costs at $10,000 payable by the plaintiff to Fraser Mason, but stayed enforcement until Fraser Mason paid outstanding costs awards previously ordered against him.

The defendants brought a motion for leave to appeal to the Divisional Court from an order dismissing their motion to discharge a Certificate of Pending Litigation (CPL) obtained ex parte by the plaintiff.

The plaintiff, a second mortgagee, alleged a constructive trust and fraudulent conduct following a power of sale that resulted in a shortfall.

The court applied the strict test for leave to appeal under Rule 62.02(4) and found no conflicting decisions, no good reason to doubt the correctness of the motion judge's findings on triable issues or material non-disclosure, and no error in principle in the exercise of discretion to maintain the CPL.

The motion for leave to appeal was dismissed.

The defendants sought leave to appeal to the Divisional Court from an order dismissing their motion to discharge a Certificate of Pending Litigation (CPL).

The court applied the two-part test for leave under Rule 62.02(4), requiring either a conflicting decision on a matter of principle or good reason to doubt the correctness of the order combined with matters of general importance.

The court found no conflicting decisions and no basis to doubt the correctness of the lower court's findings regarding the plaintiff's claim for a constructive trust, the right to trace funds, or the absence of material non-disclosure.

Furthermore, the court found no error in the exercise of discretion to maintain the CPL.

The application for leave to appeal was dismissed.

The plaintiff was successful in opposing the defendants' motion to discharge a Certificate of Pending Litigation and sought partial indemnity costs of $38,559.37.

The defendants argued the costs were excessive but failed to provide their own Costs Outline.

The court found the plaintiff's time spent and fees claimed were fair, reasonable, and proportional given the complexity of the motion and the defendants' conduct.

Costs were fixed at the requested amount of $38,559.37.

The defendants brought a motion for summary judgment dismissing an action alleging environmental contamination of the plaintiff’s property by petroleum hydrocarbons migrating from a neighbouring former gas station site.

The defendants argued the claim was statute‑barred under the Limitations Act because it was commenced more than two years after the claim was discoverable.

The court held that the plaintiff knew or ought reasonably to have known of the material facts supporting a claim by March 2012 through environmental investigations conducted during its due diligence period.

The later Phase II environmental report merely confirmed suspicions already known.

The court also rejected the argument that ongoing contamination constituted continuing damage that created a new limitation period due to lack of evidence of fresh damages.

Summary judgment was granted dismissing the action as out of time.

The appellant appealed an order striking his claim, which sought to challenge a prior order directing that proceeds from the sale of his son's house be paid into court pending a priorities dispute.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the claim was an attempt to relitigate issues already determined.

The court also denied leave to amend, finding that no amendment could remedy the fundamental flaw in the claim.

The defendants moved under Rule 21.01 of the Rules of Civil Procedure to strike the plaintiff’s statement of claim alleging the tort of abuse of process.

The plaintiff alleged that the defendants improperly used enforcement proceedings and a court order requiring sale proceeds to be paid into court as leverage to compel payment of money beyond what a judgment creditor was entitled to receive.

The court held that the pleadings failed to establish the essential elements of abuse of process, including a collateral purpose and an overt act separate from the legal proceedings themselves.

The court also found that settlement negotiations were protected by settlement privilege and could not be relied upon as admissions of improper purpose.

Further, the claim for legal fees as “special damages” constituted an impermissible collateral attack on prior costs decisions and related court orders.

The statement of claim was therefore struck as disclosing no reasonable cause of action and as an abuse of process.

The plaintiff vendor sold a property to the defendant purchaser under an agreement that included a $550,000 bonus payable if the purchaser obtained a 'favourable decision' on its 'current application' for rezoning to permit a supermarket.

The purchaser appealed the town's refusal to the Ontario Municipal Board (OMB) but ultimately settled for a zoning amendment that permitted retail use but not a supermarket.

The plaintiff sued for the bonus.

The court held that the bonus clause was triggered because the purchaser achieved the zoning it desired and urged upon the OMB, which constituted a 'favourable decision' on the appeal.

The appellants challenged the dismissal of their negligence claim arising from alleged tingle voltage in a barn said to have caused dairy herd production losses and the loss of a farm operation.

The Court of Appeal held that the trial judge erred in invoking the material contribution test, because the governing causation analysis was the but for test as explained in Clements, but found the error non-dispositive since causation failed even under the more lenient framework.

Deferring to the trial judge's detailed factual findings and assessment of competing expert evidence, the court upheld the conclusion that tingle voltage was not proved to be a contributing cause of the production issues on a balance of probabilities.

The appeal and cross-appeal were dismissed, with costs to the respondent.

The applicant tenants sought a mandatory order requiring the respondent landlord to consent to a change in the operating name of their restaurant.

The landlord had refused consent, citing alleged prior breaches of the lease regarding unauthorized renovations.

The court applied the principles for determining whether a landlord has unreasonably withheld consent, finding that the landlord's concerns about past breaches were being addressed in a separate proceeding and did not justify refusing a simple name change.

The court held the refusal was unreasonable and granted the application, permitting the name change.

Following the dismissal of a landlord’s motion for security for costs and a motion to strike affidavit paragraphs, and the granting of the tenants’ motion to convert an application to an action, the successful tenants sought substantial indemnity costs.

The court considered the factors under Rule 57.01 of the Rules of Civil Procedure and the effect of settlement offers that effectively waived costs if accepted.

The court found the tenants had achieved full success and that their claimed hours and hourly rate were reasonable given the complexity and importance of the motions.

Applying the principle of reasonableness articulated in appellate authority, the court rejected the landlord’s proposed reduced costs figure.

Substantial indemnity costs of $8,800 were awarded.

A commercial landlord brought a motion for security for costs and to strike portions of affidavits filed by the tenant and subtenant in an application seeking consent to change the restaurant’s operating name under a lease agreement.

The tenants opposed the motion and brought a cross‑motion seeking to convert a related landlord application into an action due to disputed facts.

The court held that the tenants’ application had merit and that there was no basis for security for costs, noting the tenants had substantial assets and the matter was not frivolous.

The court also declined to strike the impugned affidavit evidence and held that communications between the parties should be disclosed.

Because the landlord’s related application involved numerous contested factual issues requiring viva voce evidence, it was converted into an action.