J. Alden Christian

This decision addresses the costs arising from a trial where the plaintiffs were largely successful in their claim on a promissory note and in defending against most set-off claims and a counterclaim.

The plaintiffs were awarded $256,332.07 (including pre-judgment interest) and had beaten their formal Rule 49 offer to settle.

The court considered the principles of indemnity, promotion of settlement, proportionality, and reasonableness under Rule 57.

Despite the defendants' arguments for a lower award, the court fixed the plaintiffs' costs at $100,000, inclusive of HST and disbursements, applying partial indemnity before the offer and substantial indemnity after.

The plaintiffs sold a construction business to the defendants, with a portion of the purchase price secured by a vendor take back promissory note.

The defendants refused to pay the note, claiming set-offs for intercompany debt, retained bank balances, and a bookkeeping error that overstated accounts receivable.

The court held that the purchase price was fixed and not subject to adjustment for the intercompany debt, and that the bookkeeping error did not constitute a breach of warranty.

However, the court allowed a set-off for the retained bank balance, which the plaintiffs conceded should have been transferred on closing, reducing the amount owing on the promissory note.

This appeal concerned a family dispute over the care and guardianship of an elderly individual, Ms. Carolyn Brown, specifically challenging the validity of her 2016 powers of attorney.

The appellant, Gordon Russell Brown, argued that the trial judge erred in finding Ms. Brown lacked capacity and was unduly influenced when executing the 2016 documents.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings that the 2016 powers of attorney were invalid due to lack of capacity and undue influence.

The court also upheld the appointment of the appellant's sister and aunt as powers of attorney under the 2009 documents and as guardians for personal care.

Substantial indemnity costs were awarded against the appellant due to the appeal's lack of merit.

The moving party sought an extension of time to bring a motion to oppose the confirmation of an assessment officer's certificate regarding a solicitor's account, and a stay of enforcement.

The court applied the test for extending time to appeal and found the moving party's delay was inordinate and inadequately explained.

The court concluded the moving party did not maintain an intention to pursue the motion and that the justice of the case did not support an extension.

The motion was dismissed.

The Trustee in bankruptcy brought a motion to enforce a settlement agreement with the bankrupt's former spouse, Sonya Tessier, regarding the proceeds from the sale of a jointly owned property.

The Trustee had been discharged but had registered its interest on the property's title prior to discharge.

Ms. Tessier argued the Trustee lacked standing without reappointment and that the settlement should not be enforced due to her lawyer's alleged lack of instructions and resulting prejudice.

The court reappointed the Trustee nunc pro tunc, finding it had the inherent authority to do so to safeguard creditors' interests.

The court enforced the settlement agreement, determining it was binding and that Ms. Tessier failed to demonstrate compelling circumstances to justify setting it aside, rejecting her arguments regarding the "fresh start philosophy" and alleged prejudice.

The defendants brought a motion to adjourn a three-week trial scheduled to commence in one month, citing the plaintiffs' late production of documents and two expert reports.

The plaintiffs agreed to withdraw one expert report if the trial proceeded.

The court applied the factors from Ariston Realty and Igbinosun, finding that the defendants failed to provide sufficient evidence demonstrating why they could not proceed or how their defence would be significantly compromised.

The court emphasized the prejudice of delay to the plaintiffs in an eight-year-old action and dismissed the motion, without prejudice to the defendants seeking relief at trial regarding the late productions.

The plaintiff moved for summary judgment against the individual guarantors of a commercial mortgage granted by the corporate defendant.

The guarantors argued the corporate defendant was not in default because the plaintiff had executed a postponement of debt agreement in favour of the Business Development Bank of Canada (BDC).

The court found that the clear terms of the postponement agreement meant no amounts were presently owing to the plaintiff until the BDC loan is repaid in 2043.

As the corporate borrower was not in default, the guarantees could not be enforced.

The court granted a 'boomerang' summary judgment dismissing the plaintiff's claim against the guarantors.

The plaintiff brought a motion for summary judgment to recover a $340,000 loan secured by a second mortgage on the defendants' home.

The defendants argued the interest rate was ambiguous, the transaction was unconscionable, and one defendant lacked independent legal advice.

The court granted summary judgment, finding no evidence that the loan was excessive or unconscionable, and noting the defendants were represented by counsel during the transaction.

The defendant brought a motion to fix costs following a successful summary judgment motion that dismissed most of the plaintiff's action.

The plaintiff, a professional corporation of a lawyer, had sued the defendant, an expert retained in an underlying matter, for $95,000 after a fee dispute over a $2,768.50 invoice.

The court found the plaintiff's claim to be frivolous, vexatious, and an abuse of process.

Despite missed opportunities by both sides to settle the minor fee dispute early, the court awarded the defendant costs on a substantial indemnity scale, reduced by one-third to account for the plaintiff's modest success on the fee assessment and some duplication of effort by defence counsel.

The plaintiff was ordered to pay $36,300 in costs.

The plaintiff brought a motion to strike the defendant's statement of defence under Rule 57.03(2) for failing to pay a prior costs order of $22,000.

The defendant argued he was unable to pay the lump sum by the deadline but offered to make monthly payments.

The Master found that while the defendant had abused the court process by not raising his inability to pay earlier or making any voluntary payments, striking the defence was too harsh a remedy for a first-time non-compliance.

The motion to strike was dismissed, and the defendant was ordered to pay the costs order in monthly installments of $650, with the plaintiff awarded costs of the motion.

The defendant moved for summary judgment to dismiss the plaintiff's claims for breach of fiduciary duty and punitive/aggravated damages, and for complete dismissal of the action.

The court granted partial summary judgment, dismissing the claims for breach of fiduciary duty and punitive/aggravated damages, finding no genuine issue for trial on these points.

The court declined to grant full summary judgment on the plaintiff's claim for the return of a $5,000 retainer, as it involved credibility assessments regarding the amount legitimately billed by the defendant.

Instead, a reference to an Assessment Officer was directed to determine the exact amount owing for the retainer.

Creditors applied for a bankruptcy order under s. 45 of the Bankruptcy and Insolvency Act against a corporate debtor that had failed to pay debts exceeding the statutory minimum.

The court found the debtor had committed an act of bankruptcy and was operationally insolvent, with accounts payable nearing $300,000 and limited liquid assets.

Although the debtor argued bankruptcy would be futile and harm future revenue prospects tied to intellectual property royalties, the court held that no concrete restructuring proposal or recapitalization plan had been presented.

The court concluded that vague promises of future payment were insufficient to avoid bankruptcy but granted a brief stay to allow the parent corporation an opportunity to inject capital and satisfy the debts.

The trustee opposed the automatic discharge of a bankrupt dentist under the Bankruptcy and Insolvency Act.

Evidence showed that prior to bankruptcy the bankrupt spent approximately $228,000 from the sale of his dental practice despite advice to preserve funds for creditors, resulting in unsecured liabilities far exceeding available assets.

The court found several facts under s. 173 of the Act were established, including unjustifiable extravagance and conduct prejudicial to creditors.

Considering the integrity of the bankruptcy process and the bankrupt’s earning capacity as a dentist, the court determined that discharge should only occur subject to conditions requiring a significant repayment.

A conditional discharge was ordered requiring payment of $50,000, with the possibility of payment by agreed monthly installments.

Following a contested status hearing regarding dismissal for delay under rule 48.14 of the Rules of Civil Procedure, the court addressed costs.

One defendant had settled the motion with the plaintiffs without costs, while the remaining defendant continued to pursue the dismissal motion.

The court rejected the argument that the continuing defendant should not bear responsibility for the plaintiffs’ motion costs because the motion had originally been initiated by both defendants and he continued to rely on the joint materials after settlement.

Considering the defendants’ conduct and the delays caused by their insistence on pursuing dismissal rather than agreeing to a timetable, the court found it just to award costs to the plaintiffs.

The plaintiffs’ claimed costs were reduced due to insufficient supporting detail.

At a contested status hearing under Rule 48.14 of the Rules of Civil Procedure, the defendant sought dismissal of an investment-related civil action for delay.

The plaintiffs alleged negligent investment advice, breach of fiduciary duty, breach of contract, and negligent misrepresentation relating to the commutation of pensions into risky investments.

Applying the two-part conjunctive test from appellate jurisprudence, the court considered whether the plaintiffs provided an acceptable explanation for the delay and whether the defendant would suffer non-compensable prejudice if the action continued.

The court found the delays were reasonably explained by ongoing regulatory complaints, counsel changes, procedural steps, and motions in the litigation.

The plaintiffs also successfully rebutted any presumption of prejudice because relevant documents were largely in the defendant’s possession and witnesses remained available.