Jeff Larry

The court determined the costs for seven different motions in a complex commercial action involving Mareva injunctions and proprietary claims.

Applying the principles from Boucher and Rule 57.01, the court awarded partial indemnity costs to the successful parties on each motion, balancing divided success and the reasonableness of the amounts claimed.

In total, the plaintiffs were ordered to pay net costs to various defendants, while some defendants were ordered to pay costs to the plaintiffs for motions where the plaintiffs were successful.

The Divisional Court remitted a matter back to the Superior Court to determine whether disclosing the identities of third-party funders paying the living expenses of the Aljabri defendants posed a risk to their personal safety.

The defendants adduced unchallenged evidence that the Saudi regime had previously targeted the family and associates of the lead defendant following a 2017 palace coup.

The court found a material risk that disclosure to the plaintiffs could lead to the information reaching the Saudi government, jeopardizing the funders' safety.

The court ordered that the identities remain disclosed on a counsels' eyes only basis and not be provided to the plaintiffs.

The plaintiffs brought a motion seeking a declaration that the defendant waived litigation privilege over a 'Proffer' document provided to the Attorney General of Canada for national security vetting under s. 38 of the Canada Evidence Act.

The court held that while the document was created for the dominant purpose of litigation, the defendant's stated intention of using it to promote trial efficiency constituted a waiver of privilege vis-à-vis the trial judge.

The court ordered the unredacted Proffer to be provided to the judge and established a comprehensive trial protocol, including the appointment of amicus curiae and advance vetting of sensitive evidence, to balance national security concerns with trial fairness.

Following the release of reasons for decision on three motions in a bankruptcy proceeding, the parties could not agree on the terms of the resulting orders.

The applicant argued the orders should be dated when signed and that he was not properly served with the Receiver's motion via an email link.

The court held that the orders are effective from the date the reasons were released, as no substantial matters remained to be determined.

The court also found that service via an email link is valid and routine.

The applicant's subsequent motion for reconsideration was dismissed as an abuse of process, and costs were awarded to the responding parties.

The applicant sought a permanent injunction to restrain the respondent from breaching negative covenants in their long-term Royalty Agreement governing a collision repair shop network.

The respondent, which operated 65 shops under the applicant's brand, gave notice of its intention to unilaterally leave the relationship and rebrand its shops, openly acknowledging this would constitute a breach of contract.

The respondent argued damages would be an adequate remedy, invoking the concept of efficient breach.

The court rejected this argument, finding the damages were too complex, multi-layered, and potentially incalculable over the remaining 19-year term to make monetary compensation adequate.

The court granted the permanent injunction enforcing the negative covenants and awarded costs of $185,000 to the applicant.

Multiple motions were brought in a long-running dispute over an on-reserve business partnership between a father and son.

The father sought his share of a bankruptcy dividend from his son's estate, arguing it was protected from seizure by his former lawyer's solicitor's lien and a receivership order under s. 89 of the Indian Act.

The court held that the bankruptcy dividend, held off-reserve by the Trustee, was not protected by s. 89.

The court confirmed the validity of the former lawyer's solicitor's lien, finding it attached to the father's off-reserve assets, including the dividend once transferred to the Receiver.

The court approved the Receiver's fees, which took priority over the solicitor's lien, and authorized the transfer of the dividend to the Receiver for distribution.

The decision addresses a motion by Saad Aljabri, Mohammed Aljabri, and various corporate defendants to vary Mareva orders freezing their worldwide assets, seeking the release of frozen funds to pay legal fees.

The court grants the motion for all moving parties except Dreams International Advisory Services Ltd., finding that the Mareva Defendants have shown they lack access to other assets or reliable third-party funding, and that a variation is necessary to ensure a fair trial.

The court dismisses the motion by Dreams, finding insufficient evidence that it lacks access to other funds.

The decision reviews the legal test for varying Mareva orders and applies a balancing of interests, including the merits of the case, the complexity of the litigation, and the conduct of the parties.

This endorsement addresses costs arising from multiple motions and applications.

Andrew Clifford Miracle's applications (vexatious litigant, security for costs, bankruptcy motion) were dismissed.

Glenn Bogue's motions (solicitors' lien, summary judgment) were largely successful.

Rod Gram's summary judgment motion was dismissed, but his motion to dismiss Miracle's counterclaim was granted.

The court awarded partial indemnity costs to Glenn Bogue for his successful motions and to the Receiver for an abandoned motion by Miracle.

The court declined to award substantial indemnity costs, finding Miracle's conduct not egregious enough, and reserved costs between Gram and Miracle.

In a CCAA proceeding, the court considered supplementary written submissions regarding the appropriateness of differential consideration offered to unsecured creditors in the proposed Plan.

The court accepted the applicants' submission that the fairness of the differential consideration, which involves providing shares to Term Loan Lenders and cash to General Unsecured Creditors, should be determined at the Sanction Hearing rather than at the Meetings Order stage, given the low threshold for a Meetings Order and the presence of conflicting expert reports.

The Applicants sought an Authorization Order and Meetings Order under the CCAA.

The primary issues in dispute concerned the voting rights and classification of Litigation Claimants, which included uncertified U.S. class actions, a certified Ontario class action, and Texas mass tort claims.

The court held that the Litigation Claimants are creditors entitled to vote, but restricted them to one vote per action to prevent them from overriding other stakeholders on numerosity grounds.

The court also ordered summary proceedings to value their claims rather than accepting the Applicants' proposal to value them at $1.

Finally, the court declined to place the Term Loan Lenders in a separate class from other unsecured creditors, finding sufficient commonality of legal interests.

The purchaser brought a motion for summary judgment for specific performance of an Agreement of Purchase and Sale (APS) for a commercial property.

The vendor attempted to repudiate the APS, alleging various formal defects, lack of authority of its own signatory, and relying on an annulment clause to refuse to discharge a mortgage and construction lien.

The court found the APS valid, applying the indoor management rule to bind the vendor to its director's signature.

The court held the encumbrances were matters of conveyance, not title, and the vendor acted in bad faith.

Finding the property unique and damages inadequate, the court granted specific performance.

The moving party sought to set aside noting in default entered against it in relation to a counterclaim and crossclaim in consolidated construction lien proceedings and also sought to strike portions of the responding parties’ pleadings.

The court applied the test for setting aside default in construction lien actions, requiring a reasonable explanation for delay, a continuing intention to defend, and evidence of a meritorious defence.

The court found these criteria satisfied and set aside the noting in default.

The court further held that breach of trust allegations contained in the pleadings were barred under s. 50(2) of the Construction Lien Act because trust claims cannot be joined with lien claims, even when raised by counterclaim or crossclaim.

The offending paragraphs were struck, with leave to amend pleadings in compliance with the statute.