Jessica DeFilippis

The Cash Store Financial Services Inc. operated a payday loan business from 2002 until it sought CCAA protection in April 2014.

The company's estate sued its auditor KPMG LLP and counsel Cassels Brock & Blackwell LLP, alleging negligence and breach of fiduciary duty.

The plaintiff claimed that the defendants knew or ought to have known that Cash Store was misrepresenting its business as a broker when it was actually a direct lender bearing credit risk, and that this misrepresentation caused a deepening of insolvency from late 2011 until the CCAA filing in 2014.

The plaintiff sought damages ranging from $119 million to $177 million, plus disgorgement of legal fees.

The court dismissed all claims against both defendants, finding that Cash Store was properly characterized as a broker during the relevant period, that the defendants met applicable professional standards, and that the plaintiff failed to prove causation and damages.

The court also found the claims were statute-barred.

This costs endorsement follows the court’s summary judgment decision in favour of HSBC Bank Canada against Antonio Guido, enforcing a guarantee and dismissing Guido’s $11 million counterclaim.

The court reviews the parties’ submissions on the scale and quantum of costs, ultimately awarding HSBC substantial indemnity costs, but in a reduced amount, having regard to proportionality, fairness, and reasonableness under Rule 57.01 of the Rules of Civil Procedure.

The decision addresses the contractual entitlement to substantial indemnity costs, the complexity and conduct of the litigation, and the appropriate adjustment of costs claimed.

The plaintiff financial institution sought summary judgment on a guarantee provided by the defendant guarantor and dismissal of the guarantor's counterclaim.

The guarantor alleged breach of contract, negligent misrepresentation, conspiracy, unjust enrichment, and unconscionability, primarily based on the assertion that a third-party agent was also an agent of the financial institution and conspired with its executives.

The court found no genuine issue requiring a trial regarding the financial institution's claim on the guarantee or the guarantor's defenses and counterclaim.

The court determined there was no evidence to support the agency assertion or the alleged conspiracy, and that the non-reliance and non-waiver clauses in the guarantee were enforceable.

Partial summary judgment was deemed appropriate as the claims against the financial institution were discrete from the guarantor's continuing claims against other parties.

The court determined the scale and quantum of costs following previous motions.

Primont Homes (Vaughan) Inc. sought substantial indemnity costs, arguing delay and unproven fraud allegations by the defendants, Maplequest (Vaughan) Developments Inc. and 2373480 Ontario Inc. The defendants argued for reduced partial indemnity costs due to mixed success and over-lawyering by Primont.

The court found partial indemnity was appropriate, rejecting substantial indemnity as the fraud allegations were not adjudicated on their merits.

The court also reduced Primont's requested quantum due to its unsuccessful abuse of process argument and duplicative work by its multiple timekeepers, ultimately awarding $140,000.00 in partial indemnity costs.

The plaintiff, Primont Homes (Vaughan) Inc., sought an interlocutory injunction to prevent the defendants, Maplequest (Vaughan) Developments Inc. and 2373480 Ontario Inc., from dealing with certain land lots, asserting a contractual right to acquire them.

The defendants moved to dissolve an existing interim injunction, arguing the plaintiff failed to provide an adequate undertaking as to damages and made material non-disclosures.

The court dismissed the defendants' motions to dissolve the interim injunction, finding them precluded by Rule 2.02 due to significant delay.

The court then granted the plaintiff's motion for an interlocutory injunction, determining there was a serious issue to be tried regarding the enforceability of the agreement and entitlement to specific performance, that the plaintiff would suffer irreparable harm due to the primary defendant's inability to satisfy a damages award, and that the balance of convenience favored maintaining the injunction.

The court also found the plaintiff's undertaking as to damages sufficient given the defendants' failure to quantify their potential damages from delay.

The Court of Appeal for Ontario heard an appeal and cross-appeal concerning the interpretation of an easement.

The primary issue was whether an easement for "vehicular and pedestrian access and egress" included the right to park.

The application judge had ruled it did not.

The appellant (Friuli Long Term Care) argued the application was speculative and that parking rights were ancillary or an easement of necessity.

The cross-appellant (Primont (Castelmont) Inc.) sought an additional declaration regarding redevelopment.

The Court of Appeal dismissed both the appeal and the cross-appeal, affirming the application judge's finding that the easement did not include parking rights and that parking was a contractual matter.

The court also upheld the refusal of the additional declaration due to procedural issues.

The moving party brought motions to strike an affidavit, for a sealing order, and for leave to appeal a costs order.

The Divisional Court dismissed all motions, permitting the responding party to redact its materials to remove allegedly privileged information.

Costs of $5,000 were awarded to the responding party for the motion for leave to appeal.

The moving parties brought a motion for leave to appeal an order of Justice Myers.

The Divisional Court denied the motion for leave to appeal and awarded costs to the respondent fixed at $2,500 all inclusive.

The applicants sought a vesting order for adverse possession or, alternatively, a prescriptive easement over a strip of land used as a driveway.

The court found that both parties overreached in their claims and settlement positions, with neither side achieving what they sought.

The court declined to award costs to either party, emphasizing that the litigation was an artificial proxy for a broader neighbour dispute regarding renovations.

No order as to costs was made.

The applicants sought a prescriptive easement over a strip of the respondent's land that had been used as part of their driveway for nearly fifty years.

The court found that the applicants' predecessors in title had openly and continuously used the strip of land for parking and access from 1983 to 2003, prior to the lands being registered under the Land Titles Act.

The court concluded that the easement was reasonably necessary for the better enjoyment of the applicants' land and granted the application.

The accused, an inmate at a detention centre, was charged with possessing marijuana after a correctional officer found the drug during a strip search.

The officer conducted the search without the superintendent's authorization, based only on a hunch after seeing another inmate blocking the cell door.

The court found the search violated the accused's s. 8 Charter rights because the officer lacked reasonable suspicion and the search was not authorized by law.

Applying the Grant framework, the court excluded the evidence under s. 24(2), emphasizing the seriousness of the unauthorized strip search and the need to uphold legislated safeguards for inmates.

The accused was found not guilty.

The accused was charged with possessing 2 grams of marijuana contrary to section 4(1) of the Controlled Drugs and Substances Act, allegedly discovered during a strip search at a detention centre.

The accused challenged the legality of the search under section 8 of the Charter of Rights and Freedoms and sought exclusion of the evidence under section 24(2).

The court found that the strip search was unauthorized and based on insufficient grounds, constituting a serious breach of the accused's Charter rights.

The evidence was excluded, resulting in an acquittal.