John K. Downing

This costs endorsement addresses the outcome of an interlocutory injunction motion brought by The Matter Corporation against Southside Construction Management Limited and others.

The court reviews the partial success of the plaintiff, the divided success of the parties, and the appropriate approach to costs in the context of interim injunctions.

The court ultimately fixes the plaintiff’s partial indemnity costs at $81,074.85, to be payable in the cause, after deducting amounts for unsuccessful relief and for work that will be used in discovery.

The Matter Corporation ("Matter Corp.") sought an interlocutory injunction against Southside Construction Management Limited ("Southside"), Vito Frijia, and Wonderland Power Centre Inc. ("Trustee Corporation") regarding a joint venture.

Matter Corp., a 50% beneficial owner, alleged Southside, the managing co-owner, failed to provide disclosure, consult, and seek approval for new development, working capital commitments, and future borrowing after the death of Matter Corp.'s principal.

The court applied the "strong prima facie case" standard for mandatory injunctions.

The court granted the Production Order for existing information and records and the New Development Order requiring Southside's consultation and consent for future development of new commercial and residential space on the Joint Venture Properties.

However, the court dismissed the Production Order for documents that do not exist, the New Development Order for working capital commitments related to existing commercial space, and the Borrowing Order, finding Matter Corp. did not meet the high merits standard for these aspects.

The court found irreparable harm for new development due to irreversible commitments and that the balance of convenience favored Matter Corp. for new development, but Southside for existing space leasing and borrowing.

The plaintiff, 620369 Ontario Inc., sought default judgment against the defendants, Michael Latimer and Jodi Latimer, for unpaid building materials.

The defendants were noted in default.

The court found the admitted facts supported judgment based on contractual agreements and the Construction Act, including a statutory trust.

The court also addressed the high interest rate and awarded partial indemnity costs, declining substantial indemnity costs due to the absence of reprehensible conduct by the defendants.

This motion was brought by the appellant's solicitors, Miller Thomson LLP, seeking an order to be removed from the record due to a breakdown in the solicitor-client relationship, primarily stemming from the appellant's failure to pay accounts and provide instructions.

The respondent opposed the immediate removal, arguing it would prejudice their pending motion to lift a stay of enforcement and obtain security for appeal costs, especially given an imminent receivership application against the appellant.

The court exercised its discretion to refuse immediate removal, ordering that the solicitors would only be removed after the disposition of the respondent's motion, finding this approach prevented prejudice to the respondent and upheld the administration of justice without unduly prejudicing the moving solicitors or their client.

The plaintiff, a golf course operator, sought an interim injunction to regain possession of the golf course after the defendant owner purported to terminate their lease agreement.

The lease included a profit-sharing arrangement.

The defendant alleged breaches including failure to obtain a liquor license, poor record-keeping, and self-dealing by the plaintiff's principals, specifically pocketing cash from memberships and restaurant sales.

The court dismissed the plaintiff's motion, finding that the plaintiff failed to establish a strong prima facie case or irreparable harm, and that the balance of convenience favored the defendant due to the plaintiff's "unclean hands" and the irreparable breakdown of trust in the profit-sharing venture.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' action regarding a collapsed hog barn, arguing it was barred by the 15-year ultimate limitation period under the Limitations Act, 2002.

The plaintiffs argued the limitation period was tolled due to the defendants' wilful concealment of construction deficiencies.

The court found a genuine issue requiring a trial regarding the fraudulent concealment exception for the corporate defendants and dismissed their motion.

However, the court granted summary judgment dismissing the action against the individual engineer defendants, finding they were protected by a limitation of liability clause in their employer's contract.

The plaintiff brought a motion to strike the defendants' statement of defence in an action for a construction debt and breach of trust.

The defendants failed to produce a proper affidavit of documents, failed to attend scheduled examinations for discovery, and offered no credible commitment to remedy their non-compliance over the course of a year.

Applying the principles from Falcon Lumber, the court found the defendants' non-compliance to be deliberate, material, and unequivocal.

The court exercised its discretion to strike the statement of defence and awarded the plaintiff costs thrown away.

This is an appeal from a judgment rescinding a settlement agreement.

The respondent, Irene Deschenes, had settled a sexual assault claim against the Roman Catholic Episcopal Corporation of the Diocese of London in Ontario (the "Diocese") in 2000.

Subsequently, it was discovered that the Diocese had misrepresented its knowledge of the priest's prior abuse, as police statements from 1962 indicating earlier assaults came to light.

The motion judge rescinded the settlement based on innocent misrepresentation.

The appellants (Diocese and others) appealed, arguing the motion judge erred in applying the law of unilateral mistake, assessing materiality, and failing to uphold the finality of settlements.

The Court of Appeal dismissed the appeal, affirming that the settlement was properly rescinded for innocent misrepresentation, finding the misrepresentation material and relied upon, and that the interests of fairness and justice outweighed the principle of settlement finality in these circumstances.

The plaintiffs moved for an interlocutory injunction to enforce a restrictive covenant preventing the defendants from soliciting their alarm security customers, and to restrain the defendants from passing themselves off as the plaintiffs.

The court dismissed the motion regarding the restrictive covenant, finding that the plaintiffs' rebranding and refusal to provide customer lists made compliance impractical.

However, the court granted an injunction restraining the defendants from passing themselves off as the plaintiffs or as authorized by them, citing clear evidence of dishonest sales tactics.

The court determined costs for contempt proceedings initiated by Atif Kamran against Dan Andersson and LEO Canada Inc. While Kamran succeeded in having Andersson found in contempt for some breaches, Andersson successfully purged his contempt and resisted many of Kamran's requested penalties.

The court found success was divided, and Kamran's approach to the penalty phase was overly aggressive.

No costs were awarded to LEO Canada Inc. or Geraldine Aquino.

The court awarded Atif Kamran $40,000 in all-inclusive costs from Dan Andersson, on a partial indemnity basis, and dismissed Andersson's cross-motion for costs.

The appellant appealed the dismissal of a personal injury action for delay.

The action arose from an accident in 2002, was issued in 2004 and served late.

At the time of the appeal decision, 14 years had passed since the action commenced and nearly 17 years since the accident.

The motion judge found the plaintiff responsible for the overall delay.

The Court of Appeal upheld the dismissal, finding the delay inordinate and inexcusable, with prejudice presumed from the length of delay and clear evidence of actual prejudice present.

This endorsement addresses the costs of a successful motion brought by defendant Atif Kamran to remove Siskinds LLP as counsel for plaintiffs Dan Andersson and LEO Canada Inc., and to compel document production.

The court awarded costs to Mr. Kamran, payable by Mr. Andersson alone, fixed at $17,000.00 on a partial indemnity basis.

The court declined to award substantial indemnity costs, finding no reprehensible conduct by Mr. Andersson and noting that the defendants' settlement offer was technically deficient and lacked clarity, thus not engaging the presumptive consequences of Rule 49.10.

The court also considered the broader context of the litigation and the inflammatory nature of some allegations made by Mr. Kamran.

The plaintiffs and defendants both brought motions to adduce fresh evidence in the context of an ongoing motion for an interlocutory injunction.

The court granted the plaintiffs' motion, finding that the alleged repetition of the impugned conduct was relevant to assessing the nature of the conduct and the appropriate remedial response in a dynamic marketplace situation.

The court also granted the defendants' motion to adduce fresh evidence, noting that since the plaintiffs were permitted to adduce fresh evidence, the defendants were entitled to adduce further responding evidence.

Costs were reserved to be addressed as part of the costs of the interlocutory injunction motion.

The appellant, a fitness club operator, appealed a judgment declaring it had lost its right to extend its commercial lease with the respondent landlord.

The application judge found the appellant had breached the lease by: (1) operating a fitness club at Park Road in violation of geographic non-compete restrictions; and (2) failing to calculate and report gross revenue in accordance with lease provisions for percentage rental payments.

The appellant was given notice to cure but failed to do so.

The Court of Appeal dismissed the appeal, finding no overriding or palpable errors in the application judge's interpretation of the lease, rejection of waiver and promissory estoppel defences, and refusal to grant relief from forfeiture.

This is a costs endorsement following an appeal where the Court of Appeal set aside the order of the application judge dated October 5, 2015.

The parties had contested two issues on the application with divided success.

The application judge had reduced the respondent's costs from an agreed amount of $42,500 to $30,000 due to partial success.

On appeal, the Court of Appeal determined that the appellant succeeded on both issues argued at the application and therefore was entitled to the full agreed costs amount of $42,500 for the application below, in addition to $20,000 for the costs of the appeal.

The plaintiffs brought a motion for an interlocutory injunction to restrain the defendants from soliciting customers and making defamatory statements.

The parties agreed to adjourn the main motion, but the court had to decide a jurisdiction challenge and a request for an interim injunction.

The court held that Ontario had jurisdiction, as the exclusive forum clause in the parties' recent Termination Agreement superseded the Quebec forum clause in their earlier Dealership Agreement.

However, the court denied the interim injunction, finding that the plaintiffs' year-long delay in bringing the motion undermined their claim of irreparable harm pending the return of the main motion.

The appellant appealed from a Superior Court decision that found a commercial lease for fitness club premises did not include the basement, despite the tenant's long-standing use of it.

The Court of Appeal reversed, holding that when the lease is interpreted in light of all surrounding circumstances—particularly email correspondence between the parties' lawyers—the parties clearly intended to lease the entire premises, including the basement, on a lump sum basis.

The court found the application judge erred in law by failing to consider all relevant circumstances, despite acknowledging the need to do so.

The plaintiff, The Roman Catholic Episcopal Corporation of the Diocese of London in Ontario, moved to strike the jury notice served by the defendant, AXA Insurance Canada, pursuant to sections 108(2) and 108(3) of the Courts of Justice Act.

The court determined that the core of both the plaintiff's claim and the defendant's counterclaim was for declaratory and/or other equitable relief, specifically concerning the validity and coverage of an insurance policy.

As claims for declaratory or equitable relief are mandated to be tried without a jury under section 108(2) of the Act, the court granted the motion and struck the jury notice.

The court also noted that while complexity was not argued, it would not have struck the jury notice on the discretionary grounds of mixed fact and law at this early stage without more evidence.

The defendants brought a motion to dismiss the plaintiff's action for delay, which arose from a 2001 commercial transaction where the plaintiff sued the defendants for alleged negligence in securing deferred payments.

The court analyzed the periods of delay, finding that much of the delay was attributable to both parties or solely to the defendants.

The sole period of delay attributable to the plaintiff (16 months) was not deemed inordinate or inexcusable.

The defendants failed to demonstrate actual prejudice or rebut the presumption of prejudice, as any memory deterioration occurred before the relevant delay period, and the defendants themselves had not taken steps to preserve evidence.

The motion was dismissed, and costs were awarded to the plaintiff.

The plaintiff was injured in a skiing accident and subsequently underwent spinal surgery performed by the defendant.

During the surgery, an instrument slipped, causing further nerve damage.

The defendant informed the plaintiff of the surgical accident the following day.

The plaintiff commenced an action against the ski resort but did not sue the defendant until nearly five years later, after receiving an expert report from the ski resort's counsel suggesting the defendant breached the standard of care.

The defendant moved for summary judgment on the basis that the action was statute-barred.

The court granted the motion, finding that the plaintiff failed to exercise due diligence in investigating the surgical accident, and the claim was discoverable well before the receipt of the expert report.