Jennifer Anne Whincup

The Attorney General of Ontario (AGO) objected to fee requests from Emmanuel Village Residence Inc. (EVR) and its counsel, and BDO Canada Inc. (the Receiver) and its counsel, for work performed in a receivership and forfeiture proceeding.

The AGO argued that an administration charge should cap fees, that section 5 of the Civil Remedies Act, 2001 (CRA) applied requiring proof of no other funding source, and that hourly rates were too high.

The court dismissed the AGO's objections, finding that the administration charge was not a cap, section 5 of the CRA did not apply, and the hourly rates were reasonable and previously approved.

The court approved the fees and disbursements, emphasizing the complexity caused by the joinder of receivership and forfeiture proceedings.

Emmanuel Village Residence Inc. (EVR) brought a motion to increase an administration charge in a receivership proceeding, which had been consolidated with a forfeiture application by the Attorney General of Ontario (AGO) under the Civil Remedies Act.

The AGO opposed the increase and the continuation of a sealing order.

The court granted EVR's motion, increasing the administration charge from $350,000 to $700,000, finding that it would be "clearly not in the interests of justice" to deny payment to the professionals facilitating the sale of the property.

The court also granted the continuation of the sealing order until the property is sold.

Following dismissal of a motion seeking to exclude an expert engineering report and related remedial work evidence, the successful parties sought substantial indemnity costs of over $24,000.

The court considered whether the unsuccessful moving party’s conduct justified substantial indemnity costs and applied the discretionary factors under Rule 57.01(1) of the Rules of Civil Procedure.

While the motion was unsuccessful, the court found the conduct did not rise to the level warranting substantial indemnity costs.

Applying the overarching principle of reasonableness and guidance from appellate jurisprudence, the court fixed partial indemnity costs at a fair and reasonable amount.

Costs of $12,500 inclusive were awarded, payable within 30 days.

The plaintiff contractor brought a motion on the eve of trial seeking leave under Rule 48.04 of the Rules of Civil Procedure to bring a motion to exclude an engineering report and related evidence relied on by the defendants in their counterclaim concerning alleged construction deficiencies.

The moving party argued the report had been delivered late and that remedial work was completed before it had an opportunity to obtain its own expert inspection.

The court held that leave was not warranted because the action had already been set down for trial and the moving party failed to demonstrate a substantial or unexpected change in circumstances making the motion necessary in the interests of justice.

The evidence showed the moving party had long been aware of the report and remedial work, had opportunities to conduct inspections and obtain its own expert evidence, and delayed bringing the motion until shortly before trial.

In any event, the court held the relief sought would not be justified because the evidence could be addressed through cross‑examination and exclusion would cause greater prejudice to the opposing party.