Jonathan C. Lisus

The defendant sought leave to appeal to the Divisional Court from a costs endorsement awarding the plaintiffs $190,000 on a partial indemnity basis following a successful interlocutory injunction motion.

The defendant argued the costs award was excessive and inconsistent with principles of fairness, reasonableness, and proportionality.

Applying Rule 62.02(4) of the Rules of Civil Procedure, the court considered whether there was good reason to doubt the correctness of the order and whether the proposed appeal raised matters of sufficient importance.

While most alleged errors were rejected, the court found that the unusually high quantum of costs for a one-day injunction motion raised serious concerns regarding reasonableness and proportionality.

Given the potential access to justice implications, leave to appeal the costs award was granted.

The defendant brought a motion for summary judgment dismissing a defamation action arising from an email sent to the provincial Minister of Health and the president of a professional regulatory body concerning a physician’s clinic offering diagnostic imaging related to a controversial multiple sclerosis theory.

The plaintiff alleged that the email implied unethical conduct, fraud, and exploitation of vulnerable patients.

The defendant argued the communication was protected by absolute or qualified privilege and that the action could be dismissed without trial.

Applying the “full appreciation” test articulated in Combined Air Mechanical Service Inc. v. Flesch, the court held that the issues of privilege, truth, and malice required credibility assessments and a full evidentiary record.

Given the low threshold for defamatory meaning and the plaintiff’s right to a jury trial, the court concluded the matter should proceed to trial.

The moving party sought advice and directions under a court‑approved CCAA Plan of Arrangement governing the restructuring of Canada’s third‑party asset‑backed commercial paper market.

The administrator argued the Plan and related agreements permitted it to terminate credit default swap transactions and fund termination payments from collateral without dealer consent below specified thresholds.

A dealer noteholder opposed, asserting the agreements required negotiated consent where collateral beyond a specific trade would be affected.

The court held that the contractual language did not eliminate consent requirements and that the court’s broad CCAA jurisdiction could not be used to effectively rewrite the negotiated agreements.

The request for declaratory or corrective relief was refused.

Following earlier motions seeking to set aside or vary an ex parte order and discharge certificates of pending litigation registered against properties connected to bankrupt estates, the trustee sought costs.

The moving parties argued they had achieved partial success and that costs should be in the cause or borne by each party.

The court found the trustee had been essentially successful in maintaining the certificates of pending litigation and defending the scope of the production order, notwithstanding limited clarification provided in the earlier endorsement.

After considering objections regarding time spent on cross-examinations and the factors in rule 57.01(1), the court fixed partial indemnity costs in favour of the trustee.

The spouses of two bankrupt individuals and related family trusts moved to set aside or vary an ex parte order obtained by the bankruptcy trustee that authorized production of financial records and permitted the registration of certificates of pending litigation against matrimonial homes held in the spouses’ names.

The applicants argued that the trustee improperly proceeded without notice, failed to provide full and fair disclosure, and did not follow statutory investigative steps under the Bankruptcy and Insolvency Act before seeking court relief.

The court held that the trustee had reasonable grounds to proceed ex parte due to concerns that the bankrupts might encumber the properties and that there had been no material non‑disclosure.

However, the court found that the authorization of certificates of pending litigation was procedurally irregular because no proceeding claiming an interest in land had yet been commenced.

The order was varied so that the certificates would be discharged unless the trustee commenced a proceeding asserting an interest in the properties within a specified period.

The defendant brought a motion for security for costs under Rule 56.01(1) of the Rules of Civil Procedure on the basis that the plaintiff was ordinarily resident outside Ontario.

The plaintiff opposed the motion, arguing delay, lack of leave under Rule 48.04, and claiming impecuniosity such that ordering security would prevent continuation of the action.

The court found that the plaintiff appeared to be ordinarily resident in Costa Rica and had not displaced that appearance.

The plaintiff failed to provide sufficient evidence of impecuniosity and declined cross‑examination on his affidavit.

The court concluded it was just to order security and fixed the amount based on partial indemnity costs estimated through trial.