Jonathan Dushyendra Kulathungam

Following the settlement of an urgent application for relief from forfeiture arising from a commercial lease dispute during the COVID-19 pandemic, the court determined the entitlement to costs.

The landlord sought to rely on a lease provision granting it substantial indemnity costs for tenant defaults.

The court declined to enforce the contractual costs provision, finding the landlord acted precipitously in attempting to lock out the tenant who had sought accommodation for pandemic-related financial strain.

The applicant tenant was awarded partial indemnity costs of $43,049.10, to be set off against deferred rent payments.

The court fixed costs following a nine-day construction lien trial where success was mixed.

Northridge Homes Ltd. and sub-trade plaintiffs (CAAJ Construction Inc., 2225043 Ontario Inc., and 2142043 Ontario Inc.) sought substantial costs, while the defendants argued for no costs or significantly reduced amounts due to divided success and proportionality.

The court found that all parties shared blame for the protracted trial and applied the principle of proportionality, noting that costs should be fair and reasonable, not merely a mechanical calculation of hours.

The court awarded Northridge Homes Ltd. $60,000 in total costs and the sub-trade plaintiffs $11,150 in total costs, significantly less than requested.

The Applicants were awarded costs on a substantial indemnity scale following the dismissal of the Respondents' motion to vary or set aside an earlier order appointing an auditor.

The Respondents had alleged fraud or mistake by the Applicants' affiant, Mr. Singh, regarding undisclosed liabilities and an audit waiver.

The court found Mr. Singh's liabilities immaterial and the undisclosed facts would not have changed the outcome of the audit order.

The Respondents' conduct, including unsubstantiated fraud allegations and deliberate delaying tactics, justified the substantial indemnity costs.

These supplementary reasons address the costs arising from two motions where Neda Afshar and Arman Sabet successfully sought to remove Brian Sherman as lawyer of record for Mehdi Moradi, and Ms. Afshar also obtained leave to amend her statement of claim.

The court awarded partial indemnity costs to Ms. Afshar ($24,000.00) and Mr. Sabet ($6,000.00), payable by Mr. Moradi.

The court declined to award elevated costs or costs against Mr. Sherman personally, finding no reprehensible conduct by Mr. Moradi or Mr. Sherman in opposing the motions.

This case involved two consolidated actions concerning construction and renovation work.

Northridge Homes Ltd. sued Manjit and Harjinder Sandhu for payment and a construction lien.

Separately, subcontractors CAAJ Construction Inc., 225043 Ontario Inc., and 2142043 Ontario Inc. sued the Sandhus and Northridge for payment and liens.

The court found a valid contract between Northridge and the Sandhus, and that Northridge's lien was timely and valid.

Most of the Sandhus' claims for set-off due to deficiencies were rejected due to lack of proof and failure to plead them.

The court awarded Northridge $32,401.84 and the subcontractors their full claimed amounts, declaring valid liens against the Sandhus' property.

This case involved two consolidated actions concerning construction and renovation work.

Northridge Homes Ltd. sued Manjit and Harjinder Sandhu for payment and a construction lien.

Separately, subcontractors CAAJ Construction Inc., 225043 Ontario Inc., and 2142043 Ontario Inc. sued the Sandhus and Northridge for payment and liens.

The court found a valid contract between Northridge and the Sandhus, and that Northridge's lien was timely and valid.

Most of the Sandhus' claims for set-off due to deficiencies were rejected due to lack of proof and failure to plead them.

The court awarded Northridge $32,401.84 and the subcontractors their full claimed amounts, declaring valid liens against the Sandhus' property.

Neda Afshar and Arman Sabet brought motions to remove Brian Sherman as lawyer of record for Mehdi Moradi due to conflict of interest and breach of duty of loyalty, stemming from a joint retainer in a real estate action.

Ms. Afshar also sought leave to amend her statement of claim and be added as a defendant.

Mr. Sabet sought production of his file.

The court found that Mr. Sherman had received confidential information and was acting against former clients in the same matter, violating the duty of loyalty.

The motions to remove counsel and grant leave to amend the statement of claim were granted.

The request for file production was dismissed as the material had largely been produced.

The plaintiff condominium corporation brought a motion for summary judgment against the defendant owner for unpaid common element maintenance fees, interest, and additional claimed expenses.

The parties settled the principal amount of the arrears.

The court enforced the condominium by-law's contractual interest rate of 30% above prime, finding no reason to grant relief from it.

However, the court dismissed the plaintiff's claim for additional collection expenses, finding they were not authorized by the by-laws and were subsumed by the high interest rate.

Costs were awarded to the plaintiff in the amount of $30,000.

The applicants brought a contempt motion against the respondents for failing to produce financial records as ordered by a prior court order.

Although the records were eventually produced, leading to no formal finding of contempt, the court found that the respondents' lengthy delay and non-compliance necessitated the motion.

The court awarded substantial indemnity costs to the applicants, finding the respondents' conduct in delaying disclosure and forcing the contempt motion to be reprehensible and to constitute special circumstances justifying a higher scale of costs.

The respondents (corporate moving parties) sought to vary or set aside an August 9, 2016 order appointing an auditor, pursuant to Rule 59.06(a) and (b), alleging fraud or mistake due to undisclosed facts by the original applicants (now respondents to this motion).

The undisclosed facts included audit waivers signed by a principal of the original applicants, his criminal conviction, and consumer proposal.

The court dismissed the motion, finding that the original applicants were not obliged to disclose these facts as the motion was on notice, the respondents could have discovered them with reasonable diligence, and the facts would not have altered the outcome as the audit was ordered in the interests of justice, not based on an automatic statutory right.

The court affirmed a shareholder's right to audited financial statements as a fundamental check on financial mismanagement.

The plaintiffs sought costs on a full, substantial, or partial indemnity basis following a motion to compel the defendants to comply with undertakings.

The defendants argued the motion was brought to delay discovery.

The court noted the defendants had the power to expedite discovery by complying with undertakings and court orders, which they failed to do.

Costs were awarded to the plaintiffs on a substantial indemnity basis in the amount of $94,468.81.

The plaintiffs brought a motion seeking leave to amend their statement of claim and an order compelling the defendants to answer outstanding undertakings and refusals from examinations for discovery.

The action involves allegations that the defendants, former employees, misappropriated the plaintiffs' business.

The court ordered the defendants to produce a personal computer and bank statements, finding them relevant to the alleged misappropriation and destruction of original invoices.

The court also ordered the defendants to produce a further and better affidavit of documents, including financial records in native format.

The plaintiffs were granted leave to amend their claim to add the tort of deceit and a claim for equitable set-off regarding an Employment Standards Officer's wage order, with the court declining to apply issue estoppel to prevent the set-off claim.

The defendants' request for case management was dismissed.

The plaintiffs brought a motion to strike the defendants' pleadings or, in the alternative, to compel answers to undertakings and for security for costs.

The action involved a $90 million real estate development dispute.

The court found that the individual defendant had repeatedly failed to answer hundreds of undertakings from his discovery and had breached multiple court orders, causing significant delay.

Although the plaintiffs withdrew their request to strike the pleadings, the court ordered the defendant to pay $100,000 into court as security for costs to enforce its processes against a wealthy party who abused the court system.

The appellant slipped and fell on ice and snow on the driveway of a rented residential property.

He sued the landlord and later added the tenant as a co-defendant.

The motions judge granted summary judgment dismissing the action against both defendants.

On appeal, the Court of Appeal upheld the dismissal against the tenant, finding the claim was statute-barred because the appellant failed to rebut the presumption that he discovered his claim on the date of the accident.

However, the Court allowed the appeal regarding the landlord, finding genuine issues for trial concerning the interplay between the lease terms, the Occupiers' Liability Act, and the landlord's maintenance obligations under the Residential Tenancies Act.

This is a costs decision following the successful summary judgment motions of the defendants and third parties in a slip and fall action.

The plaintiff argued that costs should be reduced due to his impecuniosity.

The court rejected this argument, noting that a plaintiff suing for a substantial sum must expect to pay costs if unsuccessful.

The court fixed the costs payable by the plaintiff to the defendants, and the costs payable by the defendant to the third parties, on a partial indemnity basis.

In a slip-and-fall action arising from an icy residential driveway at the plaintiff's workplace, the court granted summary judgment dismissing the claim against the tenant as statute-barred under ss. 4 and 5 of the Limitations Act, 2002 because the plaintiff knew or ought to have known from the outset that the premises were rented and that the occupier-tenant should have been sued.

The court also dismissed the landlord's third party claim for contribution and indemnity against the actual occupiers and the real estate parties as barred by s. 18, holding that s. 18 creates an absolute two-year limitation period not subject to discoverability.

On the merits, the absentee landlord was held not to be an occupier under s. 1 of the Occupiers’ Liability Act and not liable under s. 8 because the lease placed snow and ice removal on the tenant and no actionable landlord default was established.

The main action and third party proceeding were both dismissed.

The moving party brought a motion under Rule 59.06 of the Rules of Civil Procedure seeking to set aside or vary a prior consent order requiring her to vacate a property by a specified date.

She argued the responding parties had failed to comply with disclosure obligations, that the consent order should be interpreted alongside earlier family law orders, and that circumstances had materially changed.

The court reviewed the principles governing the finality of settlements and consent judgments and held that such orders may only be set aside for limited grounds such as fraud, misrepresentation, common mistake, or a material change in circumstances.

The evidence did not establish any of these grounds.

The court concluded the consent order was clear, voluntarily agreed to after negotiations, and remained binding.

The plaintiff brought an urgent motion under Rule 45.02 of the Rules of Civil Procedure seeking an order preserving a specific fund by requiring the defendants to pay into court the anticipated proceeds of sale of a commercial property, or a portion thereof, pending determination of outstanding damage claims arising from a failed closing under an agreement of purchase and sale.

The court reviewed the governing test requiring a proprietary claim to a reasonably identifiable fund, a serious issue to be tried, and a balance of convenience favouring the order.

The court held that the plaintiff’s claim was for unproven damages, including an alleged abatement of the purchase price and lost profits, rather than a proprietary interest in the sale proceeds.

As the plaintiff failed to establish a legal right to a specific fund as required by Rule 45.02, the motion was dismissed without consideration of the remaining elements of the test.

The appellants, vendors of a property, appealed a decision granting partial summary judgment and specific performance to the respondent purchasers.

The transaction failed to close on the extended closing date because the appellants had not provided required documents.

The motion judge found that the 'time is of the essence' clause had been waived and that the appellants were not ready to close.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's factual findings or her conclusion that there were no genuine issues requiring a trial, noting that the Supreme Court's decision in Hryniak supported the expeditious resolution.

Costs decision following motions for a certificate of pending litigation (CPL) and for partial summary judgment in a real estate dispute.

The plaintiffs sought costs on a substantial indemnity basis based on an earlier offer to settle.

The court held the plaintiffs were entitled to costs for both motions due to their success but declined to award substantial indemnity costs for the CPL motion because the offer to settle was made after that motion was determined.

However, substantial indemnity costs were awarded for the partial summary judgment motion because the plaintiffs had made a reasonable settlement offer that, if accepted, would have resolved the litigation.

The court fixed costs at $55,000 plus HST and disbursements.