Joseph Dean Frank Kennedy

This is a costs endorsement following the dismissal of the applicant's application and the granting of the counter-application.

The court assessed costs on a partial indemnity basis, considering the complexity of the proceeding, the importance of the issues, the parties' conduct, and a Rule 49 settlement offer.

The applicant's unreasonable conduct in including an unnecessary party and taking an untenable position regarding the property value influenced the costs award.

The court rejected the applicant's proposed costs as arbitrary and unreasonable.

The respondent brought a motion seeking to set aside a Registrar's Order to Continue, dismiss the application for delay, dismiss the application against the Estate of Nova Joseph Maille and Concentra Trust as Estate Trustee, and appoint an alternative Estate Trustee during litigation.

The motion was dismissed due to the absence of supporting evidence.

The respondent failed to file any affidavit in support of the motion and relied instead on privileged settlement materials and arguments protesting the contents of affidavits filed by other parties without evidentiary foundation.

The court found the motion ill-fated on its merits and ordered the respondent to pay costs to the applicants and the Estate.

This decision concerns a dispute over the ownership of a commercial property and business shares following the death of John Morrison.

The applicant, Nancy Morrison (as estate trustee), sought partition and sale of the property, while the respondent, Tomasz Gadomski, claimed he had purchased the estate’s interest in both the property and the business under a 2016 Share Purchase Agreement (SPA).

The court found that the parties intended a single agreement covering both the shares and the property, and that Gadomski had fulfilled his obligations.

The application for partition and sale was dismissed, and Gadomski was declared the sole owner of the property.

This decision concerns the assessment of costs following a successful trial where the plaintiff, Steele Industrial Supplies Inc., proved that the defendant, Sharon Elliott, had stolen $204,670.

Steele sought partial indemnity costs of $72,177.58.

The defendants argued for a lower award, contending that the plaintiff's initial evidentiary shortcomings and expanded expert scope unnecessarily lengthened the proceeding.

The court, applying the principles under the Courts of Justice Act and Rules of Civil Procedure, found the proceeding complex and the costs sought by the plaintiff to be fair and reasonable, especially considering the defendants' significantly lower settlement offer.

The court dismissed the defendants' arguments regarding the plaintiff's conduct and ordered the defendants to pay the full amount of costs sought.

The plaintiff, a subcontractor, sued the general contractor, a financial corporation, and Public Works and Government Services Canada (PWGSC) for payment on a construction project.

PWGSC, later renamed The Attorney General of Canada (AGC), brought a motion to strike the Statement of Claim against it.

The court granted the motion, finding no reasonable cause of action for breach of contract, breach of trust under the Construction Act (which does not apply to the federal Crown), or unjust enrichment, due to the existence of juristic reasons (contracts between owner-contractor and contractor-subcontractor, and the comprehensive scheme of the Construction Act).

The Caisse Populaire de North Bay Limitée moved for summary judgment seeking possession of a mortgaged property due to default on two mortgages and dismissal of the defendant's counterclaim alleging oppressive conduct.

The defendant, Christi-Anne Marie Lafrance, disputed the validity and amounts of the mortgages, arguing they were stayed or discharged by her bankruptcy, and that the Caisse engaged in oppressive conduct.

The court granted leave to amend the plaintiff's name to Caisse Populaire Alliance Limitée, granted summary judgment on the Caisse's claim, and dismissed the counterclaim, finding no genuine issue for trial.

The court clarified that secured debts are not stayed or discharged by bankruptcy if the debtor continues to benefit from the contract.

The plaintiff, Steele Industrial Supplies Inc., sued its former bookkeeper, Sharon Elliott, and the estate of her late husband for damages arising from theft and unjust enrichment.

Steele moved for summary judgment, while the defendants cross-moved to dismiss the action on the basis that it was statute-barred by the limitation period.

The court dismissed the defendants' motion, finding that the limitation period commenced when Elliott confessed to the theft, not when the fraud was merely suspected.

The court allowed Steele's motion in part, establishing Elliott's liability for the misappropriated funds and the Estate's liability for unjust enrichment, but determined that the precise quantum of damages required a trial due to conflicting expert evidence.

A trial management conference was ordered to address the damages issue and costs.

The defendants moved to compel the plaintiffs to produce unredacted banking records and additional documentation to trace the source of funds.

The plaintiffs had redacted portions of bank statements, asserting irrelevance and privacy, and resisted requests for further documentation.

The court allowed the motion for unredacted bank statements, finding the plaintiffs failed to meet the high threshold for redaction, which requires both clear irrelevance and a "good reason" for non-disclosure (e.g., significant harm or public interest infringement).

However, the court denied the motion for additional documentation to trace the source of funds, as the defendants did not establish its relevance beyond an improper fishing expedition.

The court also addressed the procedure for filing sealed documents, granting a temporary sealing order to allow the plaintiffs to formally apply for a sealing order.

The plaintiff sought leave to amend her statement of claim to add her husband as a plaintiff and the third parties as defendants, arguing discoverability of new information after the initial limitation period.

The court granted the motion, finding a credibility issue regarding the timing of discoverability that warranted resolution at trial, and that the plaintiff and her husband had provided a reasonable explanation for the delay in discovering the potential claims against the third parties and the need to add the husband as a plaintiff.

The appellants, previously declared vexatious litigants, appealed the assessment of costs ordered following the dismissal of their application for leave to commence an action under the Road Access Act.

They failed to attend the assessment and had not filed objections under Rule 58.10 of the Rules of Civil Procedure before appealing.

The court held that although the appellants had not followed the proper procedure and had filed an inadequate record, the notice of appeal was filed within the seven-day period and the certificate of assessment had been issued immediately, preventing the objection process contemplated by the Rules.

Relying on Rule 2.01, the court dispensed with strict compliance with the Rules to permit the appellants an opportunity to participate in a new assessment.

The matter was remitted to the assessment officer to schedule a new assessment of costs.

Following dismissal of a motion for an injunction seeking to enforce a non‑competition agreement, the court addressed the issue of costs.

The moving party had sought to enjoin former advisors and a financial services firm from operating a competing branch, but failed to establish an enforceable restrictive covenant or a serious issue to be tried.

The successful defendants sought partial indemnity costs.

The court held that one group of defendants was entitled to costs but denied costs to the corporate defendant due to its pre‑litigation conduct, which the court described as outrageous and contributing to the litigation.

Costs of $40,000 inclusive were awarded to the remaining defendants.

The plaintiff sought interlocutory injunctions enforcing non‑competition and non‑solicitation clauses in a 2004 agreement against several financial advisors and a related investment dealer after the advisors opened a competing branch nearby.

The court applied the RJR‑MacDonald test and considered whether the restrictive covenants were reasonable in geographic scope, temporal scope, and scope of prohibited activity.

Although the geographic scope was arguably reasonable and there was a serious issue to be tried regarding temporal scope, the court found the activity restrictions overly broad and therefore unreasonable.

As a result, the plaintiff failed to establish the required strength of case to justify interlocutory injunctive relief.

The balance of convenience also weighed against granting the injunction because a competing branch would operate regardless.

The motion for interlocutory injunctions was dismissed.

The plaintiffs sought interlocutory injunctive relief restraining a former shareholder, director, and employee from using confidential information and soliciting customers following the sale of his shares in a closely held corporation.

The evidence indicated the departing fiduciary took electronic files containing proprietary customer information and immediately solicited key customers after the share sale.

The court found a strong prima facie case of breach of fiduciary duty and unfair competition, notwithstanding the absence of a non‑competition agreement.

Given the likelihood of irreparable harm through loss of goodwill and customer relationships, and the balance of convenience favouring the plaintiffs, injunctive relief was granted.

The injunction restrained the former fiduciary and his corporation from using confidential information and soliciting customers for a limited period pending trial.