Jonathan J. Barr

This is a costs decision following a nine-day trial in a breach of contract case concerning the distribution of proceeds from the 2012 sale of a company owned by the parties.

The plaintiff was awarded $405,199 out of a total claim of $2,319,567, representing only 18% of the amount claimed.

The plaintiff succeeded on one of three main issues (the distribution of profits after the 2012 sale) but failed on the validity/enforceability of amending agreements and the allocation of salaries.

The court awarded costs to the plaintiff as the successful party, but reduced the amount to account for the time and resources spent on unsuccessful issues.

Two business partners who built a successful commercial cleaning company and sold it for over $20 million in 2012 disputed the distribution of sale proceeds and allocation of profits.

The plaintiff challenged the validity of shareholder amending agreements signed in 2002 and 2009 that altered profit-sharing arrangements for newly established divisions.

The court found the agreements valid and enforceable but determined the defendant breached the agreements by unilaterally calculating the allocation of sale proceeds using revenue rather than profit as the basis, and by failing to involve the company's chartered accountant as required.

The court awarded the plaintiff $405,199 representing the overpayment to the defendant from the improper allocation methodology.

Claims regarding salary allocations were dismissed as statute-barred.

The court considered a motion by the defendants to discharge the plaintiff’s construction lien and dismiss the action as frivolous, vexatious, or an abuse of process, or for delay.

The dispute centered on whether the plaintiff was a proper lien claimant, the nature of his relationship with the defendants (partnership or subcontractor), and whether the lien was properly quantified.

The court found triable issues on the relationship and quantification, dismissed the motion to discharge the lien, and imposed a timetable for the next steps in the litigation.

The plaintiff requested a further attendance to reargue the case against one of the defendants, Markland Residential Corporation.

The court convened a case conference and maintained its previous decision but granted the plaintiff until the end of October to submit further materials on the issue.

Additionally, the court awarded the plaintiff previously overlooked disbursements in the amount of $6,089.18.

The plaintiff advanced a $6.5 million loan for a construction project.

The loan was not repaid, and the defendants were noted in default.

The plaintiff brought a motion for default judgment.

The court granted judgment against three defendants (Wenyi Wang, 2247697 Ontario Inc., and King Square Ltd.) based on established privity of contract and breach.

The motion for default judgment against the fourth defendant, Markland Residential Corporation, based on unjust enrichment due to a fraudulent conveyance, was adjourned due to insufficient evidence to quantify the benefit.

The court awarded damages of $12,394,307.42, plus costs of $37,440.38, and post-judgment interest at the contractual rate of 20% against the three liable defendants.

This is an appeal from an order of the Commercial List judge concerning insolvency proceedings.

The appellants, Bryton, sought to exercise an option to purchase a property and obtain orders declaring the option valid and immune from challenge by other creditors under various acts (Fraudulent Conveyances Act, Assignments and Preferences Act, Canada Business Corporations Act oppression remedy, and Bankruptcy and Insolvency Act).

The application judge dismissed Bryton's request for a vesting order and declaratory relief, finding that the claims were not res judicata and that declaratory relief was not the appropriate vehicle to pre-emptively bar unadjudicated creditor claims.

The Court of Appeal upheld the application judge's decision, confirming that the validity of the option was not res judicata and that the refusal to grant declaratory relief was a proper exercise of discretion, as the application procedure was not suitable for dismissing unproven claims.

The Court of Appeal for Ontario issued a costs endorsement following its main appeal decision.

The court awarded the respondents costs for two pre-hearing motions ($1,000 for the Motion to Expedite and $7,000 for the Motion to Introduce Fresh Evidence).

Due to divided success on the appeal itself, the parties were ordered to bear their own costs for the appeal.

The lower court's costs order was not disturbed as the basis for the appellants' partial success on one issue was not argued at the application level.

The appellants, owners of a servient tenement, appealed a decision dismissing their application to declare two registered rights of way (ROWs) abandoned by the dominant tenement owners.

The Court of Appeal affirmed that abandonment requires proof of a fixed intention never to assert the right, inferred from non-use and acquiescence to permanent obstructions.

The Court found a palpable and overriding error in the application judge's assessment of the 174 Strachan ROW, concluding it was completely obstructed by a permanent house extension and thus abandoned.

For the 176 Strachan ROW, which was only partially obstructed, the Court dismissed the appeal for total abandonment but allowed it for partial abandonment of the portion under the house extension, remitting this issue for further determination.

The defendants moved for summary judgment dismissing a motor vehicle personal injury action as statute-barred under the Limitations Act, 2002 after the statement of claim was issued 63 days after the two‑year anniversary of the accident.

The plaintiff argued that the claim was not discovered until later medical reports established that her injuries potentially met the serious impairment threshold under s. 267.5(5) of the Insurance Act.

The court held that the discoverability analysis requires knowledge that there is sufficient evidence to establish the statutory threshold, not merely a belief that a claim exists.

Given conflicting evidence about when sufficient medical evidence became available to support the threshold requirement, a genuine issue for trial existed regarding when the limitation period began to run.

The defendants’ summary judgment motion was dismissed and the plaintiff’s cross‑motion to amend the statement of claim to plead discoverability was granted.

Following a successful motion removing counsel for the insurer due to a conflict of interest arising from representation in both accident benefits and tort proceedings, the court addressed costs.

The insurer argued that delay by the moving party in raising the conflict should disentitle it to costs because significant work had already been completed by counsel who would need to be replaced.

The court rejected this argument, finding the conflict arose from the insurer’s failure to maintain separation between accident benefits and tort files.

Applying Rule 57.01 of the Rules of Civil Procedure and principles from appellate jurisprudence on reasonableness of costs, the court held that the time and rates claimed were reasonable.

The moving party was awarded costs on a partial indemnity basis.

Addendum to a prior decision correcting the wording of an order concerning the removal of counsel for a statutory third party insurer.

The original judgment was amended to clarify that the motion sought removal of the law firm representing the statutory third party, rather than the individual defendant driver.

The court ordered that the law firm be removed as solicitors of record for the statutory third party insurer.

The litigation guardian was permitted to make written submissions on costs, with the insurer given time to respond.

The plaintiff brought a motion seeking removal of a law firm acting for an insurer as statutory third party in a tort action arising from a motor vehicle accident.

The insurer also provided accident benefits coverage to the plaintiff and retained the same firm to act in both the accident benefits claim and the defence of the tort action.

The firm used documents and information obtained from the plaintiff in the accident benefits claim to defend the tort action against the insured driver.

The court held that this dual representation created a clear conflict of interest, particularly where no effective information barrier existed between the two matters.

The firm’s conduct contravened principles governing conflicts of interest and the protection of confidential information between insurer and insured relationships.

The firm was removed as solicitors of record for the insurer in the tort action.