Jameel Madhany

The court considered a motion by the moving defendants for an order requiring the plaintiff, River City Christian Reformed Church, to pay security for costs under Rule 56.01(d) of the Rules of Civil Procedure.

The plaintiff, a not-for-profit corporation, sought relief for alleged fraud, misrepresentation, breach of duty, oppression, and unjust enrichment relating to a failed property acquisition.

The court found that the plaintiff was impecunious and that its claim was not plainly devoid of merit, and therefore dismissed the motion for security for costs.

This addendum on costs addresses the determination of costs following an interim motion.

The defendant, Temagami Barge Limited, sought partial indemnity costs of $25,520.68 from the plaintiff.

The plaintiff, His Majesty the King in Right of Ontario, argued for no costs or reduced costs due to mixed results and a vague costs outline.

The court, applying the principles of fairness, reasonableness, and proportionality under section 131 of the Courts of Justice Act and Rule 57.01(1) of the Rules of Civil Procedure, fixed the costs award at $12,500, inclusive of fees, disbursements, and HST, payable by the plaintiff to Temagami Barge Limited.

The self-represented plaintiff noted the defendants in default after they missed the deadline to deliver their statement of defence by 14 days.

The defendants brought a motion to set aside the noting in default.

The court found the plaintiff's actions unreasonable, as the defendants had retained counsel, communicated their intention to bring a motion to strike, and were considering a settlement proposal.

The court set aside the noting in default and awarded the defendants costs on a substantial indemnity basis fixed at $7,500, noting the plaintiff created unnecessary delays and costs.

The Trustee in Bankruptcy brought a motion seeking to revive a 2004 fraudulent conveyance action against the Bankrupt and his brother, and to set aside a 2007 order and notice of discontinuance.

The court dismissed the motion, finding that the Trustee had settled the action against the brother in 2007.

Furthermore, the court held that the fraudulent conveyance claims were res judicata, as they had been fully litigated and dismissed in a prior family court proceeding where the Trustee actively participated as an intervenor.

The court also refused to approve the Trustee's reports due to factual inaccuracies and declined to authorize criminal proceedings.

Finally, the court ordered the Trustee to pay partial indemnity costs personally, as it had pursued adversarial litigation without inspector authority and knowing the estate had no funds.

Following the dismissal of three related proceedings as an abuse of process, the successful defendants sought costs.

The court found that the plaintiffs' unfounded allegations of fraud and intentional wrongdoing, combined with their attempt to relitigate matters barred by prior releases, justified an elevated costs award.

The court awarded costs on a substantial indemnity basis, fixing the total amount at $227,532.72, apportioned among the plaintiffs and the various defendants to ensure proportionality and reasonableness.

The defendants brought motions for summary judgment to dismiss three proceedings commenced by the plaintiffs regarding a long-standing family business dispute.

The plaintiffs alleged fraud, conspiracy, and misappropriation of funds dating back to the late 1990s and early 2000s.

The court granted the motions, finding that the actions were an abuse of process as they attempted to relitigate issues that had been resolved in prior litigation and settlements.

The court also held that the claims were barred by broad releases signed by the plaintiffs in 2005, 2012, and 2015, and were statute-barred under the Limitations Act, 2002 and the Trustee Act.

The tenant sought to terminate a lease due to inadequate heating and lighting, and challenged the landlord's distraint of its equipment.

The court found that the landlord's offer to terminate the lease was not a bona fide offer and was not properly accepted in writing.

It also determined that the landlord's failure to provide adequate heating and lighting did not constitute a fundamental breach of the lease, as the premises were not rendered uninhabitable and the tenant could have remedied the heating issue.

However, the court ruled that the landlord was obligated to provide sufficient heating prior to occupancy and that the "as is" clause did not apply to heating.

Consequently, rent was not due, rendering the landlord's distraint of the tenant's equipment unlawful.

The lease remained in full force and effect, with the commencement date postponed until adequate heating was provided.

Damages for unlawful distraint were to be determined at a later trial.

An appeal from a Superior Court order concerning spousal support, child support, and a fraudulent conveyance application.

The appeal raised three issues: whether the motion judge erred in varying spousal support, varying child support, and dismissing the fraudulent conveyance application.

The Court of Appeal allowed the appeal in part regarding child support, dismissed the appeal regarding spousal support, and dismissed the fraudulent conveyance appeal.

The court allocated costs among the three issues and offset costs between the parties.

Following the dismissal of the plaintiffs' summary judgment motion and the granting of the defendants' summary judgment motion, the court determined the quantum of costs.

The defendants sought a combined total of approximately $150,000 in partial indemnity costs, while the plaintiffs argued for a significantly reduced amount of $60,000.

Applying the overriding principle of reasonableness, the court ordered the plaintiffs to pay $65,000 to the lead defendant and $30,000 to the remaining defendants.

Appeal from a motion judge's order varying child and spousal support orders from a 1999 judgment.

The respondent sought to vary support based on changed circumstances, including health issues and reduced income.

The motion judge terminated spousal support as of December 31, 2002, based on the appellant's material change in circumstances (employment and remarriage), and reduced child support from 2004 onwards due to the respondent's declining income.

The appellant appealed the variation of support orders and the dismissal of a fraudulent conveyance application.

The respondent cross-appealed the refusal to award costs.

The Court of Appeal allowed the appeal in part regarding child support, dismissed the appeals regarding spousal support and fraudulent conveyances, and dismissed the cross-appeal on costs.

The plaintiffs sought early redemption of their syndicated mortgage investments from Hi-Rise Capital Ltd. (HRC) and 54 Shepherd Road Inc., arguing HRC was contractually obligated to redeem.

HRC and 54 Shepherd Road Inc. brought cross-motions for summary judgment, asserting no such obligation existed and raising issues of standing and res judicata for one plaintiff.

The court dismissed the plaintiffs' motion, finding no unqualified right to early redemption based on a holistic interpretation of the Loan Participation Agreements (LPAs) and mandatory disclosure forms.

The court granted the defendants' cross-motions, dismissing the plaintiffs' action.

The plaintiffs, purchasers of pre-construction homes, commenced an action against the defendant developers claiming rescission of their agreements of purchase and sale or damages, alleging undue influence and unconscionability.

The defendants brought a motion to stay the action pursuant to s. 7(1) of the Arbitration Act, 1991, relying on an arbitration clause in the agreements.

The plaintiffs argued the arbitration agreement itself was invalid as unconscionable and obtained by undue influence.

The court applied the four-part test for unconscionability and the test for undue influence, finding that the arbitration agreement was neither unconscionable nor obtained by undue influence.

The court granted the defendants' motion and stayed the action in favour of arbitration.

The plaintiffs, Falcon Motor Express Ltd. and Jarnail Singh Sidhu, brought a motion for an interim order under s. 248(3) of the Business Corporations Act, seeking to compel the defendant, Arandeep Singh Grewal, to immediately transfer his 50% shares in Falcon to Jarnail or Falcon, without payment or security.

This motion followed an earlier interlocutory order removing Grewal as a director and officer due to oppressive conduct and wrongful competition.

The plaintiffs argued that Falcon could not obtain necessary financing as long as Grewal remained a shareholder, causing irreparable harm.

The court found the plaintiffs established a strong prima facie case of oppression and irreparable harm, and the balance of convenience favored them.

However, the court declined to order the transfer without security, noting that Falcon could not be the purchaser due to solvency requirements and its inability to claim set-off as a "complainant." The court ordered Grewal to transfer his shares to Jarnail, conditional on Jarnail posting $2 million security, to be held until further order.

The Acuity defendants moved for summary judgment in a fire loss claim, arguing no causal connection could be proven between the fire and their light fixtures.

The plaintiff alleged a design defect in the open luminaires led to a metal halide bulb rupture, igniting a tarp.

The court found a genuine issue requiring a trial on causation, noting conflicting expert evidence and deficiencies in the initial fire investigation due to premature site clearance.

The motion for summary judgment was not granted, but the court directed further oral evidence to be adduced on the causation issue to potentially streamline the lengthy and expensive litigation.

The Acuity defendants moved for summary judgment and sought to exclude the plaintiff's expert evidence from Vincent Rochon regarding the origin and cause of a warehouse fire.

The defendants argued Rochon was not qualified to opine on electrical code/CSA standards, lacked independence and impartiality due to his prior involvement with the insurer's sister company (REI) and the initial site investigation, showed bias, and presented an unreliable "novel science" theory (ricocheting quartz fragments).

The court found Rochon qualified, willing, and able to fulfill his duty as an expert, and that his ricochet theory was not "novel science" but an application of existing scientific principles.

The motion to exclude Rochon's evidence was dismissed, with the court noting that concerns about the investigation's shortcomings or the plausibility of Rochon's theory could inform the weight of the evidence at the summary judgment motion or trial.

The applicant brought a motion under Rule 59.06 and the court's inherent jurisdiction to reopen a previous decision dismissing her application to set aside an arbitral award.

She alleged fraud regarding statements made by opposing counsel during the arbitration and sought to introduce new evidence.

The court dismissed the motion, finding no evidence of fraud and concluding that the applicant was improperly attempting to reargue the merits of her application without meeting the test for fresh evidence.

This costs endorsement followed the dismissal of an application to set aside an arbitral award.

The applicant, Anthea Koon, sought to delay the costs decision pending a potential Rule 59.06 motion and requested an oral hearing for costs, both of which were denied.

The respondent, Lawyers Professional Indemnity Company, as the successful party in the underlying application, sought partial indemnity costs of approximately $36,000.

The applicant also sought costs of about $54,000.

The court, applying Rule 57.01 of the Rules of Civil Procedure, found no circumstances to depart from the general rule that the successful party receives costs.

The respondent was awarded costs fixed at $10,000, inclusive of disbursements and taxes.

The applicant lawyer sought to set aside an arbitral award that upheld LawPRO's decision to settle a claim against her without her consent.

The applicant argued she was denied procedural fairness under section 19 of the Arbitration Act because the arbitrator refused her request for an adjournment and allegedly forced LawPRO's preferred procedural approach on her.

The court found that the arbitrator properly exercised his discretion in denying the adjournment and that the applicant was not treated unfairly.

The application was dismissed.

The plaintiffs, VoIP service providers, sought an interlocutory injunction to prevent the defendant from suspending network carrier services and to allow the migration of telephone numbers without paying port-out fees.

The court determined the requested relief was a mandatory injunction, requiring a strong prima facie case.

The court dismissed the motion, finding the plaintiffs failed to establish a strong prima facie case for breach of contract or intentional interference with economic relations, failed to demonstrate irreparable harm, and that the balance of convenience favoured the defendant.

The court also noted the plaintiffs did not come to court with clean hands due to unpaid invoices.

The applicant lawyer brought a Rule 21 motion to strike the plaintiff’s claim in professional negligence arising from the drafting of an affidavit used in mortgage transactions allegedly connected to a fraud.

The plaintiff alleged the lawyer failed to investigate the truth of statements made by the affiant and thereby facilitated fraudulent mortgages.

The court held the pleadings disclosed no reasonable cause of action because the lawyer owed no duty of care to the plaintiff, had no retainer with the plaintiff, and had no obligation to verify the truth of affidavit contents.

The court further held that commissioning or drafting an affidavit does not constitute a representation by the lawyer that its contents are true.

As the plaintiff conceded no other viable cause of action existed, the claim against the lawyer was struck without leave to amend.