Jack B. Berkow

The Applicants were awarded costs on a substantial indemnity scale following the dismissal of the Respondents' motion to vary or set aside an earlier order appointing an auditor.

The Respondents had alleged fraud or mistake by the Applicants' affiant, Mr. Singh, regarding undisclosed liabilities and an audit waiver.

The court found Mr. Singh's liabilities immaterial and the undisclosed facts would not have changed the outcome of the audit order.

The Respondents' conduct, including unsubstantiated fraud allegations and deliberate delaying tactics, justified the substantial indemnity costs.

The appellant appealed a Master's decision to discharge a certificate of pending litigation (CPL).

The Master had discharged the CPL on the basis of the appellant's material non-disclosure of a "no registration" clause in the Agreement of Purchase and Sale (APS) when obtaining the CPL ex parte.

The appellate court upheld the Master's decision, finding no reversible error in the Master's application of the law regarding the duty of full and frank disclosure on ex parte motions.

The court affirmed that failure to make full and frank disclosure of a material fact is sufficient grounds to set aside an ex parte order.

The applicants brought a contempt motion against the respondents for failing to produce financial records as ordered by a prior court order.

Although the records were eventually produced, leading to no formal finding of contempt, the court found that the respondents' lengthy delay and non-compliance necessitated the motion.

The court awarded substantial indemnity costs to the applicants, finding the respondents' conduct in delaying disclosure and forcing the contempt motion to be reprehensible and to constitute special circumstances justifying a higher scale of costs.

The respondents (corporate moving parties) sought to vary or set aside an August 9, 2016 order appointing an auditor, pursuant to Rule 59.06(a) and (b), alleging fraud or mistake due to undisclosed facts by the original applicants (now respondents to this motion).

The undisclosed facts included audit waivers signed by a principal of the original applicants, his criminal conviction, and consumer proposal.

The court dismissed the motion, finding that the original applicants were not obliged to disclose these facts as the motion was on notice, the respondents could have discovered them with reasonable diligence, and the facts would not have altered the outcome as the audit was ordered in the interests of justice, not based on an automatic statutory right.

The court affirmed a shareholder's right to audited financial statements as a fundamental check on financial mismanagement.

The defendant was successful on a summary judgment motion dismissing the plaintiff's claim for damages and sought partial indemnity costs of $77,750.85.

The plaintiff argued the quantum was excessive and suggested $35,000.00.

The court reviewed the time dockets, hourly rates, and the complexity of the matter, finding the defendant's claimed rates reasonable.

The court fixed costs payable to the defendant at $70,313.19 inclusive of disbursements and taxes.

The Regional Municipality of York (the "Region") brought a motion for summary judgment to dismiss the claim of 2149629 Ontario Inc. ("214"). 214 sought damages for negligence and breach of contract, alleging that the Region's actions caused it to miss a deadline for registering a plan of subdivision, thereby incurring higher development charges.

The court found that 214 knew or ought to have known about the dewatering condition required for registration.

The court determined that the Region was not negligent, there was no principal/agency relationship between the Region and the Township of King, and the Region did not breach its contractual duty of good faith.

Furthermore, the court denied relief from forfeiture, concluding that 214 was not penalized but rather failed to receive a benefit by not meeting the agreement's conditions.

The motion for summary judgment was granted, and 214's claim was dismissed.

Following a lengthy condominium dispute trial involving claims of solicitor negligence, construction defects, and condominium governance issues, the court addressed the allocation of costs among multiple parties.

The plaintiff succeeded against the solicitor defendant but failed against several other defendants, including the condominium corporation and property management company.

Applying the principles under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court assessed reasonable expectations, proportionality, litigation conduct, and Rule 49 settlement offers.

The court issued a Sanderson order requiring the negligent solicitor defendant to pay the costs of the successful condominium defendant, while also apportioning part of the successful property manager’s costs between the plaintiff and the solicitor defendant.

Substantial costs awards were fixed reflecting the complexity and length of the litigation.