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 plaintiff builder brought a summary judgment motion against the defendant purchasers for breach of an Agreement of Purchase and Sale (APS) after the defendants failed to close on a pre-built home.

The defendants argued the APS was frustrated by a decline in the real estate market which prevented them from obtaining financing.

The court found the defendants breached the APS, holding that a market decline does not constitute frustration of contract.

The court awarded damages for the loss in property value, carrying costs, and increased real estate commission fees, but declined to enforce a 15% interest provision in the APS, finding it surprisingly onerous and unenforceable.

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.

In additional reasons following a summary judgment motion regarding a commercial lease dispute, the court determined the quantum of damages owed to the plaintiff landlord.

The court denied the plaintiff's motion to amend its pleadings to claim a higher pre-judgment interest rate, finding it would cause non-compensable prejudice as the request came after the summary judgment decision.

The court also reduced the plaintiff's claim for future rent after discovering the plaintiff had failed to disclose that the property was sold and demolished, terminating the rent obligation on the date a letter of intent for the sale was signed.

The plaintiff was awarded $199,136.01 in total damages for future rent and additional rent.

The plaintiff landlord brought a motion for summary judgment seeking a declaration of entitlement to $288,000 held in trust under a Termination Agreement and damages for unpaid rent.

The court found that the defendant tenant was entitled to the $288,000 held in trust, as it was consideration for giving up its rights to a long-term lease.

The court also found the tenant liable for arrears of Additional Rent and future rent following the termination of the lease for non-payment, but could not determine the quantum of damages on the current record, particularly given the recent demolition of the property.

The court ordered the funds to remain in trust pending a final determination of the set-off amount.

The parties could not agree on the terms of a formal order following a previous endorsement.

The court resolved the disputes over the competing draft orders, deciding to include a reference to the Investigative Receiver's Interim Report, declining to add a preamble regarding an undertaking as to damages, and including a paragraph explicitly dismissing the defendant's motion to set aside an ex parte order for lack of full and fair disclosure.

The plaintiffs obtained an ex parte order for a Certificate of Pending Litigation, a Mareva injunction, and the appointment of an Investigative Receiver.

The defendant Bayview Creek (CIM) LP moved to set aside the injunction, arguing the plaintiffs failed to make full and fair disclosure of material facts.

The court found no material non-disclosure or lack of frankness regarding the plaintiffs' allegations of misrepresentation and breach of terms.

Due to the complex commercial interests involved, including mortgagees intending to bring enforcement proceedings, the court transferred the matter to the Commercial List and extended the interim orders.

The applicants sought a declaration that a right-of-way across their property, benefiting the respondents' adjacent properties, had been abandoned and extinguished.

The applicants argued that historical non-use, the disappearance of original sheds, and various obstructions demonstrated an intention to abandon the easement.

The court dismissed the application, finding that the respondents and their contractors had recently used the right-of-way for property renovations and that the applicants failed to prove an express or implied intention to abandon the property right.

The plaintiff was injured in a motor vehicle accident and claimed both statutory accident benefits and tort damages.

The insurer, which insured both the plaintiff and the defendant, denied coverage alleging a staged accident.

The insurer retained the same law firm to defend it in the accident benefits arbitration and to defend the tort action, providing the law firm with the plaintiff's confidential accident benefits file without consent.

The plaintiff successfully moved to remove the law firm as solicitor of record due to a conflict of interest.

The insurer appealed to the Divisional Court.

The Divisional Court dismissed the appeal, holding that an insurer owes a duty of good faith and must maintain a privacy 'firewall' between its accident benefits and tort departments.

Retaining the same counsel and sharing confidential information without consent created an irreconcilable conflict of interest.

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.

The appellants appealed a jury verdict regarding an insurance claim for fire damage.

The jury had heard expert evidence from the respondent's electrical engineer that the building's permanent wiring was not the cause of the fire, and that the fire was likely caused by shoddy electrical wiring used for a marijuana grow operation.

The Court of Appeal dismissed the appeal, finding there was evidence upon which the jury could reasonably reach its verdict.