Jason M. Squire

This costs endorsement follows the dismissal of an appeal by the Defendants, David Wu and Opus Fitness Investment Inc., against a decision of Associate Justice Perron.

The Defendants argued that the Plaintiff, Ottawa Credit Exchange Limited, increased costs by raising a new argument on appeal.

The Court disagreed, finding the Plaintiff’s argument was responsive and that the Defendants themselves increased costs by raising an unfounded jurisdictional argument.

The Court awarded costs to the Plaintiff in the amount of $4,881.60, inclusive of HST.

The decision concerns a dispute over the return of a deposit following the termination of an agreement of purchase and sale (APS) for a property, in the context of a receivership and subsequent refinancing.

The court orders the return of the deposit to 2557905 Ontario Inc., with interest only from the date the deposit was placed in an interest-bearing account, and denies the listing broker's request for costs from the deposit.

The court rendered a costs endorsement following the dismissal of the defendant employer's motion to strike paragraphs seeking punitive damages from the plaintiff employee's Amended Statement of Claim.

The plaintiff was awarded partial indemnity costs in the amount of $13,592, payable within 15 days.

The court rejected the plaintiff's request for substantial indemnity costs, finding that counsel communications about the motion's merits did not constitute reprehensible conduct warranting such an award.

Ottawa Credit Exchange Limited (OCEL) brought a motion seeking the production of four categories of documents from the defendants, David Wu and Opus Fitness Investment Inc., related to a commercial dispute involving a management buyout and reorganization.

The defendants argued that the requested documents were not and had not been in their possession, control, or power.

The court dismissed OCEL's motion, finding that the defendants had no possession, control, or power over the documents sought, including emails from a personal account already searched, BBM messages from a company-owned device returned before litigation, and privileged communications with corporate counsel.

The appellant, 2557904 Ontario Inc. (the stalking horse bidder), appealed a motion judge's order that dismissed the receiver's motion for an approval and vesting order (AVO) and instead approved the debtor's (1000093910 Ontario Inc.) motion to redeem a first mortgage.

The Court of Appeal found the motion judge erred by not ensuring 255 received compensation for costs thrown away and by granting provisional enforcement of the order after an appeal notice was filed.

The appeal was allowed in part, varying the order to require the debtor to pay $300,000 in compensation to 255 and setting aside the provisional execution.

The court also ordered that if the refinancing transaction does not close, the AVO for 255 will be granted.

The defendant employer brought a motion to strike certain paragraphs from the plaintiff's Amended Statement of Claim, which sought punitive damages based on the defendant's counterclaim for misappropriation of confidential information being a bullying tactic.

The defendant argued these pleadings disclosed no cause of action and were frivolous, vexatious, and an abuse of process under Rules 21.01 and 25.11.

The court dismissed the motion, finding it was not plain and obvious that the claim for punitive/exemplary damages would fail.

The judge emphasized that the unique principles of employment relationships, including the inherent power imbalance, allow for such claims, and that the issue should be decided at trial on a full evidentiary record, not at the pleadings stage.

The Court of Appeal heard motions in an appeal concerning the receivership of a debtor's property.

The appellant, a successful bidder, appealed two lower court orders that terminated its Stalking Horse Agreement and approved the debtor's refinancing transaction.

The motion judge referred several issues to a panel, including the appellant's standing and right to appeal, and whether the lower court erred in terminating the agreement and granting provisional enforcement.

The Court of Appeal continued the stay of provisional execution of the lower court orders, emphasizing the importance of maintaining the integrity of court-approved sale processes, especially given the absence of reasons from the motion judge for his initial decision.

This appeal concerned the interpretation of an agreement of purchase and sale with an ambiguity regarding the calculation of the purchase price, which included Harmonized Sales Tax (HST).

The appellant vendor sought payment of remaining escrow funds.

The Court of Appeal found that the application judge erred by failing to properly interpret the agreement according to the principles of contractual interpretation and by relying on inadmissible expert appraisal evidence.

The appeal was allowed, the lower court's judgment and costs order were set aside, and the matter was remitted for a new hearing before a different judge.

The cross-appeal was not addressed.

The Ontario Securities Commission (OSC), a judgment creditor of Vadim Tsatskin, brought a motion for leave to issue a certificate of pending litigation (CPL) against a property solely owned by Tsatskin's spouse, Irene Bromberg.

The OSC alleged that Bromberg held a beneficial interest in the property in trust for Tsatskin, who had orchestrated a scheme to hide assets and avoid payment of a $5.3 million debt from fraudulent investment schemes.

Bromberg opposed, citing clean hands, delay, and prejudice.

The court granted the CPL, finding a triable issue for a resulting or constructive trust and that the equities favored the OSC, given the significant dissipation risk posed by Tsatskin's fraudulent history and the lack of substantiated prejudice from Bromberg.

This appeal concerned the interpretation of a commercial lease, specifically the allocation of risk for fire damage.

The landlord, James Dick Construction Limited (JDC), sued its tenant, Courtice Auto Wreckers Limited (CAW), for damages after a fire destroyed one leased building and damaged another.

JDC alleged CAW breached the lease by failing to maintain the sprinkler system.

The trial judge dismissed the action, finding that the landlord's covenant to insure the buildings allocated the risk of fire loss to the landlord, even if the tenant was responsible for sprinkler system repair expenses.

The Court of Appeal upheld the trial judge's decision, affirming that while a covenant to insure generally implies risk allocation to the covenantor, this is not an absolute rule and requires a holistic interpretation of the entire contract and surrounding circumstances.

The Court found no extricable error of law or palpable and overriding error in the trial judge's application of the law.

The appellants, small and mid-size businesses, appealed a class action decision regarding business interruption insurance claims stemming from the COVID-19 pandemic.

They sought coverage for revenue losses, arguing that the presence of SARS-CoV-2 or civil authority orders constituted "physical loss or damage" to their property under their insurance policies.

The Court of Appeal upheld the trial judge's finding that neither the virus's presence nor the civil authority orders met the "physical loss or damage" criteria for business interruption coverage.

The appeal was dismissed, and costs were awarded to the respondents.

The defendant Bank of Nova Scotia and third party Julie Leblanc brought a motion to strike the plaintiff's statement of claim and third party claim for disclosing no cause of action, being frivolous, vexatious, or an abuse of process under Rules 21.01(b), 21.01(3)(b), and 25.11.

The court granted the motion, finding the claim to be a collateral attack on an earlier court order regarding the limitations period and time-barred independently.

The plaintiff's claims, including those related to the bank's alleged failure to revoke a power of attorney, investigate fraud, or breach fiduciary duties, were found to be based on events discovered more than two years before the action was commenced.

The court struck the claims without leave to amend and awarded substantial indemnity costs to the Bank of Nova Scotia.

This case involved two consolidated applications concerning a dispute over the allocation of Harmonized Sales Tax (HST) on the sale of a mixed-use property.

The Vendor (Miculinic Investment Corporation) sought the release of escrow funds withheld by the Purchaser (1000029174 Ontario Inc. and 2303515 Ontario Inc.), who had objected to the Vendor's HST allocation and sought a judicial declaration on the residential portion's value.

The court found that it was not its role to determine the HST amount, as the Canada Revenue Agency (CRA) had already made an assessment.

The court granted the Vendor's application for the release of escrow funds, finding the Purchaser's allocation not unreasonable but upholding the Vendor's right to the funds based on the CRA's assessment and the terms of the Agreement of Purchase and Sale.

The Purchaser's cross-application was dismissed.

This is a costs endorsement following an appeal decision where the Court of Appeal allowed the appeal, restored an arbitrator's award, and awarded costs of the appeal to the appellant.

The court set aside the application judge's original costs order and awarded costs of the proceedings before the application judge to the appellant, Halton Condominium Corporation No. 137, in the sum of $8,083.33, inclusive of disbursements and applicable taxes.

The appellants appealed the dismissal of their action for summary judgment, which the motion judge found to be a nullity because it was commenced by an undischarged bankrupt and was statute-barred.

The Court of Appeal upheld the motion judge's decision, confirming that the action was a nullity as the bankrupt lacked capacity to sue and the claim was time-barred.

The court also rejected arguments regarding the postponement of the limitation period and apprehension of bias, noting the appellant's counsel had waived any conflict.

The plaintiffs, James Dick Construction Limited and Mara Limestone Aggregates Ltd., brought an action for damages arising from a fire loss involving two leased buildings.

The defendants, Courtice Auto Wreckers Limited et al., argued the claim was barred by the plaintiffs' covenant to insure.

The court found that the landlord's covenant to maintain general property insurance sufficient to cover replacement costs allocated the risk of loss, including fire, to the landlord, thereby barring the action against the tenants.

The court also found that the defendants did not breach the lease regarding sprinkler system maintenance and that their actions did not cause the damage.

Had damages been awarded, they would have been based on diminution in value, and private insurance proceeds would not have been deductible.

The applicant, Don Bernier, brought an oppression application under the Ontario Business Corporations Act, asserting he was a beneficial and equitable shareholder of Skilcor Food Products Inc. and La Riberie Inc. at the time of their 2017 sales, and was denied his shareholder entitlement.

The respondents denied his shareholder status.

The court found that while an oral agreement for a 9% interest in a "Consolidated group" (Skilcor food assets, La Riberie, and Northbud) existed prior to 2010, this agreement was mutually rescinded by the parties' subsequent conduct, specifically the sale and winding-up of Northbud in 2013.

This rendered the original agreement inoperative as Bernier no longer had the equity contribution (Northbud shares) upon which his interest was based.

The court concluded Bernier was not a shareholder of Skilcor or La Riberie at the time of the sales and therefore lacked standing to bring an oppression claim.

The application was dismissed.

The plaintiff, Hoodex Industries Limited, brought a motion for leave to amend its amended statement of claim and for an order to have its action tried together with another related action (CV-18-605074).

The motion was largely on consent, except for the defendants Innova Toronto Inc. and Tahsin Bondokji (the "Innova defendants") who opposed both requests.

The court granted leave to amend the statement of claim, finding that the proposed amendments disclosed reasonable causes of action against the Innova defendants, including misappropriation of confidential information, intentional interference with economic relations, conversion, and conspiracy.

The court also ordered the two actions to be tried together, citing common questions of fact, significant overlap of evidence, and the risk of inconsistent findings if tried separately, in line with the principles of avoiding multiplicity of proceedings and ensuring expeditious and least expensive determination of civil proceedings.

Costs were awarded to Hoodex.

The applicant, a former CEO of Aphria Inc., sought damages for the company's refusal to honor his stock options and, in the alternative, relief from forfeiture.

The court found that the stock options had expired according to the terms of the Aphria Incentive Stock Option Plan, which was incorporated by reference into the applicant's agreements.

Furthermore, the applicant was found to have breached a non-competition agreement by leasing land to a medical marijuana producer during the restricted term.

Consequently, the court dismissed the application, denying both the claim for damages and the request for equitable relief from forfeiture due to the applicant's breach of the non-competition agreement.

The plaintiff, FSA Science and Art Ltd., moved for summary judgment to dismiss the counterclaim of the defendant 1004964 Ontario Inc. The defendants, 1004964 Ontario Inc. and Edward Slapsys, brought a cross-motion for costs of the plaintiff's discontinued action.

The court dismissed the counterclaim, finding no genuine issue for trial, as the invoice for assistance services was effectively a penalty and the plaintiff had not received the agreed-upon 20 hours of free assistance.

For the costs motion, the court found the defendants were entitled to partial indemnity costs for the discontinued action, but reduced the requested amount by 50% due to excessive claims and some duplication of effort.

No costs were awarded for the motions themselves due to divided success.