Jonathan Rosenstein

In a contentious estates proceeding, the court determined costs following an earlier dismissal of the moving party's request for payout of sale proceeds held in trust.

Both sides sought partial indemnity costs and each claimed success, but the court found divided success and held that neither side was completely successful.

Applying Rule 57.01 principles, the court found the amounts sought were excessive in light of proportionality and mixed results.

The court also found litigation conduct by both sides increased costs, while assigning primary responsibility for failing to add the estate party to the estate trustee.

Costs were fixed at $5,000 payable by one responding party to the moving party.

The appellants appealed a trial judgment that dismissed their claims of substantial interference with an easement and nuisance against the respondents, while granting a permanent injunction preventing parking in the right-of-way tunnel.

The respondents cross-appealed the scope of the parking injunction.

The Court of Appeal dismissed both appeals, finding no palpable and overriding error in the trial judge's interpretation of the easement, application of the substantial interference test, or the tailored scope of the parking injunction.

The trial judge's costs award was also upheld.

The plaintiff, a personal services corporation, entered into sales and management agreements with the defendant, a U.S. corporation, to manage its Canadian subsidiary.

The plaintiff's compensation was based on the subsidiary's net profit, calculated in accordance with U.S. GAAP.

The plaintiff sued for breach of contract, alleging the defendant improperly allocated corporate overhead costs to the Canadian subsidiary, thereby artificially reducing the net profit and the plaintiff's compensation.

The court dismissed the action, finding the plaintiff failed to prove on a balance of probabilities that the defendant's allocation of corporate overhead costs was not in accordance with U.S. GAAP.

The court also dismissed additional claims for unpaid invoices and wrongful termination due to lack of evidence.

The applicant, a secured creditor for an equipment loan, sought the appointment of a receiver over the assets of two related debtor companies: one operating a cannabis facility and the other owning the real estate.

The mortgagees opposed the appointment over the real estate, arguing the applicant had no security interest in it and preferring to sell under power of sale.

The court found it just and convenient under section 101 of the Courts of Justice Act to appoint a receiver over all assets of both entities to prevent fragmented sales, maximize recovery, and maintain a court-supervised process, appointing the receiver nominated by the mortgagees.

The Monitor in CCAA proceedings moved for an extension of the stay of proceedings, approval of its activities as described in its Fortieth Report, and approval of its fees and disbursements.

The motion was unopposed.

The court found that the applicants had acted in good faith and with due diligence, and that the extension was reasonable.

The court also approved the Monitor's activities and found the fees and disbursements to be reasonable.

The motion was granted.

The plaintiffs challenged the validity of a share transfer agreement entered into between two of the defendants, which resulted in one defendant becoming the majority shareholder of the corporation.

The court applied an objective test to determine the parties' intention to contract and found that the agreement contained all necessary elements of a contract.

The court rejected arguments that the agreement was merely an agreement to agree or that it was invalid due to technical deficiencies under the Business Corporations Act.

The share transfer agreement was declared valid and binding.

The plaintiffs sued the defendant lawyer and accountant for professional negligence, alleging they failed to protect the plaintiffs' ownership interest in a corporation.

The defendants brought third-party claims against the corporation and its principals.

The defendants and third parties moved for summary judgment to stay the action, relying on a general release previously signed by the plaintiffs in a settlement with the corporation.

The court granted the motions, finding that although the defendants were not parties to the release, allowing the action to proceed would trigger third-party claims against the released parties, violating the no-claims-over provision.

The main action and third-party proceedings were permanently stayed as an abuse of process.

The applicant, a member of a taxi co-operative, brought an application seeking disclosure of the co-operative's members' list to assist in his bid for election to the board of directors.

After the application was commenced, the applicant complied with the statutory requirement to provide an affidavit, and the co-operative disclosed the list, rendering the main relief moot.

The court awarded the applicant partial indemnity costs up to the date of disclosure because the co-operative had not been transparent about the statutory requirements.

The court declined to exercise its inherent jurisdiction to order the disclosure of members' email addresses and telephone numbers, finding that the statute only required disclosure of names and addresses.

The applicant mortgagor defaulted on a mortgage and the respondent mortgagees commenced power of sale proceedings.

The mortgagor requested a discharge statement under s. 22 of the Mortgages Act, which the mortgagees refused to provide, claiming the mortgagor was stalling.

The mortgagees then sold the property to a third party.

The court held that the mortgagees had no reasonable excuse to refuse the discharge statement, meaning their enforcement rights were suspended under s. 22(3).

Consequently, the sale to the third party was invalid.

The court rejected the argument that ss. 35 and 36 of the Mortgages Act or s. 99(1.1) of the Land Titles Act protected the third party purchaser's title from a breach of s. 22.

The plaintiff mortgagee brought an undefended motion for summary judgment against the defendant mortgagor following a default on a $5.5 million loan.

The defendant failed to comply with the timetable, serve materials, or file a fresh statement of defence.

The court found no genuine issue requiring a trial and granted judgment for the principal, interest, and fees totaling over $6 million, along with a writ of possession and substantial indemnity costs.

The applicants sought to enforce an arbitral award requiring the individual respondent to repay $400,000 in loans he guaranteed.

The arbitrator had terminated the arbitration after the first phase due to the respondent's conduct but confirmed the award's effect.

The respondent opposed enforcement, alleging bias and fraud, and sought an adjournment.

The court dismissed the adjournment request, noting the respondent had ample notice and opportunity to retain counsel.

The court enforced the award, finding the respondent had not taken any steps to set it aside under the Arbitration Act, and awarded costs to the applicants.

The applicant brought an application within an ongoing oppression remedy proceeding seeking repayment of a shareholder loan.

The applicant sought to impose enterprise liability on related companies and personal liability on the estate of his former business partner.

The court found that the former partner had engaged in oppressive conduct by diverting corporate funds for personal benefit, defeating the applicant's reasonable expectations.

The court held the estate personally liable for the immediate repayment of $2,421,300 of the shareholder loan, but declined to impose enterprise liability on the related companies or personal liability on the estate trustee.

Following a motor vehicle accident, the plaintiff sued multiple parties, including her employer.

The Workplace Safety and Insurance Tribunal (WSIAT) eventually ruled that the plaintiff's claim against her employer was statute-barred under s. 28 of the Workplace Safety and Insurance Act, 1997.

The employer and the vehicle owner sought their costs of the civil action on a partial indemnity scale.

The court awarded costs but limited them to the pleadings stage, noting the exceptional circumstances, including the plaintiff's proactive approach, the WSIAT's institutional delay, and the employer's retroactive WSIB registration.

The respondent was wholly successful on a motion to quash the appellants' appeal and sought costs of $14,483.01 on a partial indemnity basis.

The appellants agreed costs should follow the event but disputed the quantum, arguing the hours claimed were excessive for a motion with no cross-examinations and brief materials.

The court agreed the hours claimed were high and, applying the principle of fairness and reasonableness, fixed the respondent's costs at $10,000 on a partial indemnity basis.

The respondent brought a motion to quash the appellants' appeal of an arbitral award regarding post-closing adjustments under a Share Purchase Agreement.

The respondent argued that the Joint Submission to Arbitrate governed the proceedings and did not provide a right of appeal, meaning leave was required under the Arbitration Act, 1991.

The appellants argued the original Share Purchase Agreement allowed appeals for 'manifest error'.

The court found that the Joint Submission to Arbitrate replaced the original agreement and governed the arbitration.

As it did not provide a right of appeal, and no leave was sought, the motion was granted and the appeal was quashed.

The plaintiff, a shell corporation, brought a motion for leave to issue a certificate of pending litigation (CPL) regarding a gas station it had agreed to purchase.

The transaction failed to close on the extended closing date, and the vendor subsequently sold the property to a third party.

The court dismissed the motion, finding no triable issue that the agreement of purchase and sale remained in effect.

Furthermore, the court held that the property was not unique, damages would be an adequate remedy, and the plaintiff's status as a shell corporation raised concerns about its ability to pay damages if unsuccessful at trial.

Following a successful motion for summary judgment and default judgment against the defendants, the plaintiffs sought substantial indemnity costs based on a term in the mortgage.

The court found the request for substantial indemnity costs premature, as the judgment might be paid without needing to enforce the mortgage.

The court awarded partial indemnity costs of $14,000 based on the parties' prior agreement, with directions for assessment if the parties could not agree on the total costs of the action.

The plaintiffs sought an order of contempt and a Mareva injunction against the defendants for failing to comply with a prior production order regarding $155,000 in missing unsecured loans.

The court found that the individual defendant had been evasive and failed to produce the required financial records, raising suspicions of spoliation and financial manipulation.

The court granted an interlocutory Mareva injunction freezing the defendants' assets and gave the individual defendant one final opportunity to comply with the production order before facing a renewed contempt motion.

A refusals motion arose during cross‑examination related to a pending summary judgment motion involving allegations that the responding party attempted to hire a hitman.

The moving party objected to questions seeking disclosure about a sealed matrimonial proceeding that allegedly involved Mareva and Anton Piller orders.

The court held the questions were irrelevant and constituted a fishing expedition aimed at embarrassing collateral matters and upheld the refusals.

The court also addressed complications arising from a witness’s alleged recantation affidavit and allegations of fabricated evidence, finding the procedural posture inappropriate for determining those issues.

In light of escalating collateral disputes and multiple related proceedings between the parties, the court stayed summary judgment motions and assumed case management over all related litigation to ensure proportional and efficient resolution.

The defendants moved to set aside a default judgment obtained after their statement of defence had been struck for failure to deliver an affidavit of documents.

Applying Rule 19.08(2) of the Rules of Civil Procedure and the governing three-part test, the court considered the promptness of the motion, the explanation for the default, and whether the defendants had an arguable defence on the merits.

The court found the defendants acted promptly after learning of the judgment and provided a reasonable explanation for their failure to respond to the motion to strike.

The defendants also advanced arguable defences concerning the execution of mortgage acknowledgements, the scope and validity of personal guarantees, and potential limitation period issues under the Limitations Act, 2002 and the Real Property Limitations Act.

In the interests of justice, the court set aside the noting in default and the default judgment and permitted amendments to the statement of defence.