Jonathan Levy

The applicant, a declared vexatious litigant, brought a 16-page Notice of Application.

The City of Toronto, as the first named respondent, sought dismissal of the application under Rule 2.1.03.

The court found that the applicant failed to follow the required procedure for vexatious litigants to seek leave to proceed, as established by a prior order.

Citing previous decisions involving the same applicant, the court dismissed the application in its entirety and ordered the applicant to pay costs on a substantial indemnity basis to each respondent.

The appellants, six defendants in a construction dispute, appealed a motion judge's decision dismissing their request to permanently stay the action.

They argued that a partial settlement between the plaintiff (respondent) and three other defendants (including an insurer) was not immediately disclosed, constituting an abuse of process.

The settlement involved the plaintiff assigning claims to the insurer and contemplating a Pierringer Agreement.

The motion judge found the settlement did not significantly alter the litigation dynamics to require immediate disclosure and that disclosure, if required, was immediate.

The Court of Appeal upheld the motion judge's finding that the settlement did not significantly alter the litigation dynamics, emphasizing that the claims against the settling parties were fundamentally distinct from those against the appellants, and the use of the term "Pierringer Agreement" was not determinative without a substantive change in adversarial positions to cooperative ones.

The appeal was dismissed.

The plaintiff was struck on the head by a bocce ball thrown by the defendant Goulet while seated on the outdoor patio of the defendant restaurant (Local).

The plaintiff suffered a mild traumatic brain injury resulting in chronic headaches, fatigue, and cognitive deficits.

The plaintiff settled with the restaurant via a Pierringer Agreement prior to trial.

At trial, Goulet argued the restaurant was contributorily liable for failing to erect a barrier or post warning signs.

The court found Goulet 100% liable, concluding that while the restaurant failed to post a warning sign, this breach did not cause the injury as Goulet knew throwing the ball was dangerous.

The court awarded the plaintiff general damages of $125,000, plus past and future loss of income, future care costs, and out-of-pocket expenses.

This endorsement addresses costs following the dismissal of two summary judgment motions: one by the City of Toronto against the plaintiffs, and another by the Toronto Terminal Railway Company in its cross-claim against the City.

The court, exercising its discretion under section 131 of the Courts of Justice Act, ordered that the costs of both motions be "in the cause." This decision was based on the principle that the merits of the action had not yet been determined, the work product from the motions would be useful at trial, and the moving parties could still be successful at trial, making an immediate costs award premature.

The plaintiffs initiated an action against the City of Toronto, Toronto Port Lands Company, and Toronto Terminal Railway Company following a bicycle accident on a path crossing railway tracks.

The City and Toronto Port Lands Company moved for summary judgment to dismiss the main action, while the Toronto Terminal Railway Company moved for summary judgment to dismiss the City's crossclaim for contribution and indemnity.

The court found that conflicting expert opinions on causation and standard of care presented genuine issues requiring a trial.

Furthermore, the court determined that granting partial summary judgment on the crossclaim would risk inconsistent findings and injustice due to the intertwined nature of the issues.

Both motions for summary judgment were dismissed, and the matter was directed to proceed to trial.

Following the dismissal of the plaintiff's motion for leave to issue a certificate of pending litigation, the court determined the costs of the motion.

The defendants sought substantial indemnity costs of $38,500 based on prior offers to settle, while the plaintiff argued for partial indemnity costs of $12,000.

The court found that the defendants' offers to settle contained conditions not reflected in the final order, and thus did not warrant elevated costs.

The court awarded the defendants their partial indemnity costs, fixed at $26,000 inclusive of HST and disbursements.

The plaintiff sought leave under section 103 of the Courts of Justice Act and Rule 42.01 of the Rules of Civil Procedure to issue a certificate of pending litigation over a Toronto property arising from a dispute in a real estate redevelopment venture.

The parties had entered several agreements to jointly purchase, redevelop, and sell residential properties with profits shared equally.

Although the court found there was a triable issue as to whether the plaintiff had an interest in land based on the joint venture arrangement, other equitable factors weighed against granting the CPL.

The property was not unique, the claim could be adequately compensated by damages, and substantial funds from a mortgage discharge were already held in trust to secure potential claims.

Balancing the equities and considering the availability of alternative remedies, the court declined to grant leave to issue the CPL.

Following judgment awarding damages for auditor negligence, the court determined the appropriate prejudgment interest rate and start date under the Courts of Justice Act.

The court rejected the plaintiff’s proposed interpretation of the Ministry interest rate tables and held that the statutory quarterly rate corresponding to the commencement of the action applied.

The court also declined to average interest rates over the period absent compelling justification, emphasizing that deviations from the statutory scheme require substantial evidence.

Applying ss. 128 and 130 of the Act, the court structured the accrual of prejudgment interest to reflect when losses were actually incurred rather than the breach date alone.

Interest was calculated in stages culminating in a total prejudgment interest award exceeding $33 million.

Livent Inc., through its Special Receiver, sued its former auditors, Deloitte & Touche, for negligence and breach of contract in failing to detect massive corporate fraud perpetrated by Livent's directing minds, Garth Drabinsky and Myron Gottlieb.

The court found that Deloitte failed to conduct its 1996 and 1997 audits in accordance with generally accepted auditing standards (GAAS), particularly regarding preproduction costs and complex revenue transactions.

The court rejected Deloitte's defences based on the corporate identification doctrine and ex turpi causa, holding that the fraud of the directing minds could not be attributed to the company to shield the negligent auditors.

Damages were assessed at $84,750,000, representing the increase in Livent's liquidation deficit caused by the delayed discovery of the fraud, discounted by 25% for business contingencies.

Following an appeal from an arbitral award concerning mining concessions and a contractual right of first offer, the court addressed costs of the appeal.

The earlier decision allowed the appeal in part, confirming that the right of first offer was triggered but overturning the arbitrator’s findings regarding partnership, fiduciary duties, and the remedy ordered.

Both parties claimed substantial success and sought partial indemnity costs.

The court held that success on the appeal was divided, as each side prevailed on significant issues.

In the circumstances, the appropriate disposition was for each party to bear its own costs.

The moving party sought an order permitting it to call and cross-examine certain current and retired partners of the defendant accounting firm at trial under Rule 53.07(5) of the Rules of Civil Procedure.

The court considered whether such individuals could be treated as adverse parties or partners of an adverse partnership for the purpose of cross-examination.

The court held that current partners of the defendant partnership clearly fell within the rule and could be called and cross-examined.

The court further concluded that retired partners could also qualify as adverse parties due to potential personal liability for partnership obligations incurred before retirement under the Partnerships Act.

The motion was granted in part, permitting cross-examination of specified partners and recognizing the applicability of the rule to retired partners.

Appeal from an arbitral award under s. 45(1) of the Arbitration Act, 1991 concerning a joint venture relating to mining concessions in Peru.

The arbitrator held that the appellants breached a contractual right of first offer and a trust relationship by granting a cesión minera (assignment of concession rights) to a third party without offering the opportunity to the respondents.

The court upheld the arbitrator’s finding that entering into the cesión minera triggered the right of first offer and constituted a breach of the contractual trust arrangement.

However, the court found the arbitrator erred in law by concluding that the parties’ relationship constituted a partnership giving rise to broader fiduciary duties and by crafting a remedy tied to the broader share purchase agreement rather than the cesión minera itself.

The appeal was therefore allowed in part and the matter remitted to the arbitrator to determine appropriate terms for offering the cesión minera to the respondents.

The defendant auditor brought motions to compel answers to written discovery questions, to compel production of the plaintiff's expert files, and to increase the quantum of security for costs.

The court dismissed the motion to compel discovery answers, finding the requests for summaries of evidence and lists of documents to be relied upon at trial were overly broad and disproportionate.

The court ordered reciprocal production of prior expert report drafts but otherwise upheld litigation privilege over the experts' files.

The court granted the motion to increase security for costs, adding $577,995 to the previous order due to an extended trial estimate and the plaintiff's new litigation financing arrangement.

Following dismissal of a commercial action, the successful defendant sought substantial indemnity costs after making a Rule 49 offer to settle.

The court held that where a defendant’s settlement offer involves payment and the action is dismissed entirely, Rule 49 does not automatically permit substantial indemnity costs.

Relying on appellate authority limiting earlier jurisprudence, the court concluded substantial indemnity costs are only appropriate where egregious conduct is demonstrated.

While the defendant’s legal rates were reasonable, the court found some time spent excessive.

Applying the factors in Rule 57.01, the court fixed a reduced partial indemnity costs award including disbursements.