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.

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 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 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.

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.

In a certified class action arising from a fire and explosion in an underground electrical vault at a residential complex, the defendant utility appealed a Master’s order compelling answers to refusals given during examinations for discovery.

The appeal concerned whether the defendant was required to disclose details of internal and expert investigations and to answer questions regarding its theory of causation.

The court held that the defendant failed to establish a factual basis for litigation privilege over investigative information and expert findings.

The court further held that under Rule 31.06(3) of the Rules of Civil Procedure, a party must disclose expert findings, opinions, and conclusions at discovery unless it undertakes not to call the expert at trial.

The Master’s order requiring answers to discovery questions and disclosure of investigative information was upheld.

The plaintiff brought a motion under subrule 5.04(2) and rule 26.01 of the Rules of Civil Procedure seeking leave to amend its statement of claim to add a new defendant in a property contamination dispute.

The proposed defendant opposed the amendment on the basis that the applicable limitation period under the Limitations Act, 2002 had expired.

The court held that the moving party failed to provide sufficient evidence to rebut the presumption of discoverability under s. 5(2) of the Act, including evidence of when the claim was discovered or what investigative steps had been taken.

Because the evidentiary record did not establish any doubt about the expiry of the limitation period, the proposed claims were considered clearly statute barred.

The motion to amend was dismissed, though the moving party was permitted to renew the motion with proper evidence within 45 days.