Joseph M. Fragomeni

The defendant appealed a Master's order extending the time for the plaintiff to serve the Statement of Claim.

The plaintiff had failed to serve the claim for nearly five years following a motor vehicle accident due to previous counsel's inadvertence.

The defendant argued the Master erred by reversing the burden of proof regarding prejudice.

The Superior Court dismissed the appeal, finding the Master correctly applied the law by placing an evidentiary obligation on the defendant to provide details of prejudice, which the defendant failed to do.

The applicants sought a declaration that a 2018 Power of Attorney executed by the elderly mother was valid, or alternatively, to remove the respondent daughter from a prior 2017 Power of Attorney.

The parties raised competing allegations of financial abuse and presented conflicting medical reports regarding the mother's capacity.

The court found that the material facts in dispute and the conflicting medical evidence could not be resolved on a paper record.

The court ordered the application converted to an action to allow for pleadings, discovery, and a trial.

The plaintiff brought a motion to amend the statement of claim to add a new defendant and for substitute service on the existing defendant, who had not been served within six months of issuance.

The existing defendant brought a cross-motion to stay or dismiss the action due to the delay in service, arguing prejudice because he had disposed of documents proving he sold the vehicle to the proposed new defendant.

The court granted the plaintiff's motion, noting the existing defendant's failure to comply with Highway Traffic Act requirements regarding the sale of the vehicle contributed to the delay in locating him.

The defendants were permitted to plead the Limitations Act in response to the amended claim.

The appellant father appealed an interim order dismissing his motion to vary his access to his child from supervised to unsupervised, and the subsequent costs order of $5,000.

The appeal court found that the motions judge carefully reviewed the evidentiary record, including the Office of the Children's Lawyer report and supervised access notes, and made no error in law or misapprehension of facts.

The appeal was dismissed, with the court emphasizing that appeals of interim orders are discouraged and the matter should proceed to trial.

This endorsement addresses the costs of a prior motion and application where the applicant, Mohamed Khatau (operating as MAK Enterprises), was largely unsuccessful in preventing the respondent, Apra Development Inc., from removing or selling property after failing to vacate premises as per a consent order.

Apra sought full indemnity costs, citing Khatau's breach of the consent order and the motion's lack of merit.

Khatau argued for partial indemnity, asserting his conduct was not "reprehensible, scandalous or outrageous" and that the motion was brought out of genuine concern for his livelihood.

The court awarded partial indemnity costs to Apra, finding Khatau's conduct did not warrant full indemnity, and reduced the requested fees due to potential duplication of counsel services and excessive hours for a non-complicated motion.

The defendants, vendors of a farm property, brought a motion for partial summary judgment to dismiss the plaintiff's action against them regarding an unregistered solar panel lease.

The plaintiff, who owned the solar panels, sued both the vendors and the purchaser after the purchaser denied him access to the property.

The vendors argued the purchaser had actual notice of the lease and was bound by it.

The court dismissed the motion, finding genuine issues requiring a trial due to an insufficient evidentiary record, contradictory statements in closing documents including a statutory declaration, and the risk of inconsistent findings if partial summary judgment were granted.

This costs endorsement addresses the allocation of legal costs following a comprehensive order by Price J. on October 29, 2018, and subsequent motions heard by Fragomeni J. on April 1 and 8, 2019.

For the October 2018 attendance, where a substantial portion of the order was by agreement, the court determined that each party should bear their own costs.

For the April 2019 motions, which involved a motion to vary a consent order, child support, spousal support, division of matrimonial home proceeds, and health benefits, the court found the results to be mixed.

Despite offers to settle, neither party achieved a significantly more favourable outcome.

Consequently, the court ordered that each party bear their own costs for both sets of proceedings.

The accused, J.D., was charged with three counts of sexual assault against his wife, D.D. The incidents allegedly occurred between January and April 2017.

The defense argued that D.D.'s testimony was not credible or reliable, suggesting a motive to fabricate due to ongoing family law proceedings, and highlighted inconsistencies in her statements.

The Crown argued D.D.'s testimony was credible, supported by an audio recording demonstrating the accused's animus and his admissions regarding alcohol use.

The court found J.D.'s testimony regarding his drinking problematic and inconsistent.

However, due to significant inconsistencies in D.D.'s testimony, particularly regarding the number and details of alleged assaults and "French Vanilla incidents" and a lack of thorough investigation into D.D.'s cell phone, the court was left with a reasonable doubt.

The court could not decide whom to believe and therefore found J.D. not guilty on all three counts.

The defendants brought a multi-faceted motion seeking re-examination for discovery, striking the plaintiff's claim for perjury, non-disclosure, intimidation, and abuse of process, permission to lay criminal information, leave to amend their counterclaim for punitive damages based on perjury, intimidation, and abuse of process, and declarations of contempt of court against the plaintiff and its representatives.

The court dismissed all aspects of the defendants' motion, finding that issues of perjury and witness credibility were for trial, that there is no civil cause of action for perjury, that the court lacked jurisdiction to permit laying criminal information, and that the proposed amendments to the counterclaim lacked legal tenability or sufficient particulars.

The court also found no exceptional circumstances for a further examination for discovery. interesting_citations_summary: > This decision reinforces key principles regarding civil procedure and the limits of a motion judge's authority.

It highlights that allegations of perjury do not constitute a civil cause of action, citing *Admassu v. Macri*, and that such matters are typically for criminal prosecution.

It also clarifies that the tort of intimidation requires more than asserting a contractual right, referencing *Central Canada Potash Co. v. Saskatchewan*.

Furthermore, the case applies the principles for amending pleadings under Rule 26.01, emphasizing the need for a tenable and prima facie meritorious claim, as discussed in *Windsor Raceway Inc. v. Ontario Lottery and Gaming Corp.* and *Marks v. Ottawa (City)*, and the requirement for proper particulars. final_judgement: > The defendants' motion for re-examination for discovery, to strike the plaintiff's claim, for an order permitting the laying of criminal information, for leave to amend their counter-claim to add punitive damages, and for an order declaring Katharine and Thomas Lammer in contempt of court, were all dismissed. winning_degree_applicant: 5 winning_degree_respondent: 1 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2019 decision_number: 2293 file_number: "15-337" source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc2293/2019onsc2293.html" keywords: - Motion - Perjury - Intimidation - Abuse of Process - Amendment of Pleadings - Rules of Civil Procedure - Counterclaim - Contempt of Court - Examination for Discovery areas_of_law: - Civil Procedure - Civil Litigation - Criminal Law cited_cases: legislation: - title: "Criminal Code, R.S.C. 1985, c.

C-46" url: "https://laws-lois.justice.gc.ca/eng/acts/c-46/" - title: "Rules of Civil Procedure, R.R.O. 1990, Reg. 194" url: "https://www.ontario.ca/laws/regulation/900194" case_law: - title: "Admassu v. Macri, 2010 ONCA 99" url: "https://www.canlii.org/en/on/onca/doc/2010/2010onca99/2010onca99.html" - title: "Central Canada Potash Co. v. Saskatchewan" url: "https://www.canlii.org/en/sk/skca/doc/1978/1978canlii190/1978canlii190.html" - title: "Windsor Raceway Inc. v. Ontario Lottery and Gaming Corp., 2014 ONSC 4076" url: "https://www.canlii.org/en/on/onsc/doc/2014/2014onsc4076/2014onsc4076.html" - title: "Norman v. Soule" url: "https://www.canlii.org/en/bc/bcsc/doc/1991/1991canlii2009/1991canlii2009.html" - title: "Marks v. Ottawa (City), 2011 ONCA 248" url: "https://www.canlii.org/en/on/onca/doc/2011/2011onca248/2011onca248.html" --- # Court File and Parties **COURT FILE NO.:** 15-337 **DATE:** 20190411 ## SUPERIOR COURT OF JUSTICE - ONTARIO **RE:** Barrel Works Guelph Ltd., Plaintiff **- and –** Richard Marasse and Yanling Du, carrying on business as Royal Gold Jewellery & Precious Metals, Richard Marasse and Yanling Du, Defendants **BEFORE:** FRAGOMENI J. **COUNSEL:** Clarke L. Melville, for the Plaintiff Richard Marasse in person, for the Defendants **HEARD:** April 2, 2019 --- #### ENDORSEMENT [1] This motion was heard by me on April 2, 2019.

The action is scheduled for a pre-trial on April 18, 2019.

The action is then scheduled for the Assignment Court on April 29, 2019 for the trial sittings commencing May 13, 2019. [2] Approximately one and a half months before this matter is scheduled for trial, the defendants proceed with a motion for the following relief, as set out in their Notice of Motion: 1.

An order that the Corporate Plaintiff represented by Thomas Lammer, re-attend at its own expense and including all costs to the defendants, a Re-Examination for Discovery. 2.

An order striking out the Plaintiff’s Claim for: i) committing acts of Perjury; ii) failing to disclose pertinent information; iii) attempting to prevent our witness from disclosing pertinent facts of this case through an act of intimidation; iv) Abuse of Process as described in [Rule 21.01 (3) (d) in the Rules of Civil Procedure](https://www.ontario.ca/laws/regulation/900194). 3.

An order permitting the laying of a Criminal Information against Barrel Works Guelph Ltd., Thomas Lammer and Katharine Lammer for: a. committing acts of perjury contrary to [Criminal Code s. 131](https://laws-lois.justice.gc.ca/eng/acts/c-46/); b. for obstructing justice by their attempts to dissuade a witness from giving evidence contrary to [Criminal Code s. 139](https://laws-lois.justice.gc.ca/eng/acts/c-46/); c.

Intimidation of a justice system participant contrary to [Criminal Code s.423.1 (1) (b)](https://laws-lois.justice.gc.ca/eng/acts/c-46/); d. such further and other acts against the Criminal Code as the defendants may advise and is justified by the conduct brought to light by this motion. 4.

Leave permitting the Defendants to add to their Counter Claim for Punitive Damages in the amount of $14,000,000.00 for each count of Perjury the Honourable Court deems the Plaintiff to have committed during the full course of this proceeding. 5.

Leave permitting the Defendants to add to their Counter Claim for Punitive Damages in the amount of $14,000,000.00 for each count of Intimidating a Witness this court deems the Plaintiff to have committed during the full course of this proceeding. 6.

Leave permitting the Defendants to add to their Counter Claim for Punitive Damages, $4,000,000.00 for Abuse of Process. 7.

An order declaring Katharine Lammer and the Plaintiff in Contempt of Court for Lying in Katharine Lammer’s sworn affidavit dated September 11, 2016. 8.

An order declaring Thomas Lammer and the Plaintiff in Contempt of Court for lying during Examination for discovery. 9.

An order declaring the Plaintiff and Thomas Lammer in Contempt of Court for lying in the Undertakings they provided. 10.

An order declaring the Plaintiff and Thomas Lammer and Katharine Lammer in Contempt of Court for not disclosing pertinent information. 11.

An order declaring the Plaintiff and Katharine Lammer in Contempt of Court for attempting to intimidate and interfere with a Witness in this proceeding. 12.

An order that the Plaintiff pay the costs of this Motion on a full indemnity scale. 13.

Such further and other relief as this Honourable Court deems just. [3] At paragraph 33 of the factum the defendants identify the following issues that need to be determined by the court at this motion: a) Whether the Plaintiff committed acts of Perjury? b) Whether there is a reasonable concern of Perjury being committed by the Plaintiff? c) Did Thomas Lammer and/or Katharine Lammer commit acts of Perjury? d) Is there reasonable concern that Thomas Lammer and/or Katharine Lammer committed acts of Perjury and /or conspired to commit acts of Perjury? e) Whether the Plaintiff (Barrel Works Guelph Ltd.), Katharine Lammer and Thomas Lammer committed acts of omission that are pertinent to this proceeding? f) Whether there is reasonable concern that the Plaintiff has committed acts of omission that are pertinent to this proceeding? g) Whether the Plaintiff attempted to interfere with a witness by way of intimidation. h) Whether there is Reasonable Concern that the Plaintiff attempted to interfere with a witness by way of intimidation. i) Whether there has been an Abuse of Process by the Plaintiff? j) Whether there is a Reasonable Concern of an Abuse of Process by the Plaintiff? [4] It is important to note at the outset that the material and Affidavits filed by the parties are conflicting.

In my view a trial is required in order to properly assess the credibility of the witnesses after examinations and cross-examinations and for the trial judge to make the necessary findings of fact. [5] The trial judge will have a complete evidentiary record and will be able to hear and see the witnesses and make the necessary findings of fact.

The defendants’ position that the plaintiff’s representatives, Thomas Lammer and Katharine Lammer, have sworn false Affidavits or have lied under oath at their examination-for discoveries are issues to be determined at trial. [6] With respect to the defendants’ request for an order permitting the laying of a Criminal Information against the Plaintiffs, Thomas Lammer and Katharine Lammer, that is not within this Court’s jurisdiction. [7] In [Admassu v. Macri 2010 ONCA 99](https://www.canlii.org/en/on/onca/doc/2010/2010onca99/2010onca99.html), the Court set out the following at paras 13, 14 and 38: > 13 The motion judge indicated that Admassu was suing Macri on essentially two grounds: (i) for allegedly making false statements to a judge in court; and (ii) for allegedly commissioning one or more affidavits, the contents of which Macri knew to be false or misleading, during the child protection proceeding. > > 14 The motion judge concluded that no civil cause of action existed for either of these complaints against Macri.

He reasoned in part that : “(1) what lawyers say in court in accorded absolute privilege…and (2) that the remedy for swearing a false affidavit (or indeed commissioning same) is to prosecute criminally for perjury (or aiding perjury)” In the result, in the motion judge’s view, Admassu’s pleading failed to disclose a reasonable cause of action against Macri. > > 38 Finally, in respect of Admassu’s allegation of perjury by Macri, the motion judge held that as a matter of law, Admassu’s remedy if any, lies in the criminal rather than the civil law domain, and that no civil cause of action exists for this claim.

I agree. [8] I am satisfied that there is no cause of action relating to perjury and as such, leave to amend their counter-claim to add punitive damages of $14,000,000.00 based on perjury is denied. [9] With respect to the intimidation allegation, the Affidavits are conflicting.

Katharine Lammer set out the following at paras 6 - 9 of her Affidavit sworn March 22, 2019: > 6.

Ed MacNevin is a former employee of the Plaintiff, previously employed as a security guard. > > 7.

By the very nature of their role, security guards are regularly exposed to confidential information belonging to their employer, the public and the tenants of the building.

As a term of their employment with the Plaintiff, all security guards are prohibited from disclosing confidential information to any other person, firm, or corporation, without obtaining the prior consent of the Plaintiff.

In my understanding, these confidentiality terms survive the termination of employment. > > 8.

In 2013, we were having problems with security staff discussing potential tenants and giving incorrect sales information to others.

All security staff was asked to sign a confidentiality agreement at that time as part of their employment.

The confidentiality agreement became a regular part of employment documents for new hires.

Mr. MacNevin was intimately involved in hires as security supervisor and he had complete knowledge of the confidentiality agreement that was signed by any new employee.

I also recall asking Mr. MacNevin to sign a confidentiality agreement at that time (2013).

However, I have searched the records of the Plaintiff and I have been unable to find a copy. > > 9.

On or about July 17, 2018, Mr. MacNevin contacted me via telephone.

I had come to learn that Mr. MacNevin, despite having told me that he was retiring, he was continuing to work as a security guard and had started a small consulting business.

I asked if he was continuing to work, as he had told me he was moving to Alberta and retiring from the work force.

Upon hearing that he had indeed taken up the positions mentioned above, I reminded him that he was bound by the terms of his employment including confidentiality and that he should not be using confidential information that he had obtained through his employment with us to further either of his positions.

Mr. MacNevin told me that he did not believe he had violated any confidentiality obligations, and he did not recall signing a confidentiality agreement.

The conversation was polite on both sides and very short.

At no time did I threaten or attempt to intimidate Mr. MacNevin. [10] It will be for the trial judge to determine if her version is correct or whether the version set out by Mr. MacNevin in his affidavit sworn October 18, 2018 is correct.

The larger issue is, however, that this allegation is not relevant or probative of the issues in this trial.

The trial involves a commercial dispute regarding a commercial tenancy. [11] In [Central Canada Potash Co. v. Saskatchewan 1978 CarswellSask 100](https://www.canlii.org/en/sk/skca/doc/1978/1978canlii190/1978canlii190.html), the Court stated the following at para 99: > In my opinion, the tort of intimidation is not committed if a party to a contract asserts what he reasonably considers to be his contractual right and the other party, rather than electing to contest that right, follows a course of conduct on the assumption that the assertion of right can be maintained. [12] The further difficulty the defendants have is that they have not filed a proposed amended counter-claim outlining the particulars that would give rise to these causes of action.

In [Windsor Raceway Inc. v. Ontario Lottery and Gaming Corp., 2014 ONSC 4076](https://www.canlii.org/en/on/onsc/doc/2014/2014onsc4076/2014onsc4076.html) (S.C.J.), D. M. Brown, J. stated the following at para. 18: > In *Brookfield Financial Real Estate Group Ltd. v. Azorim Canada (Adelaide Street) Inc.*, I attempted to summarize the principles governing the amendment of pleadings: > > The analysis must start with a consideration of Brookfield’s request to amend its Statement of Claim.

The relevant portions of [Rule 26 of the Rules of Civil Procedure](https://www.ontario.ca/laws/regulation/900194) read as follows: > > 26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. > > 26.02 A party may amend the party’s pleading, > > (a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action… > > I adopt, as succinctly summarizing the legal principles applicable to motions to amend pleadings, the following passages from Morden & Perell, *The Law of Civil Procedure in Ontario, First Edition*: > > The rule is mandatory and amendments must be allowed unless the responding party can demonstrate prejudice that cannot be compensated by costs.

The prejudice must arise as a result of the amendment and pre-existing prejudice unconnected to the amendment will not suffice… > > With the exception of an amendment to plead a statue-barred claim, the onus of proving prejudice is on the party alleging it… > > On a motion to amend a pleading, the court does not examine the factual merits of the proposed amendments or the moving party’s motives for seeking the amendment, but it does examine whether as a matter of law, the amendment raises a tenable claim or defence and whether the proposed amendment has been properly pleaded in the sense of complying with the rules that govern pleadings, including sufficient particularity.

Put somewhat differently, it makes little sense to grant an amendment that will immediately be challenged as legally unsound, and the court may inquire into the merits to ensure that the amendment is tenable in law and compliant with the rules of pleading.

The case law establishes that proposed amendments are to be read generously with allowance for deficiencies in drafting… > > Where an amendment to a pleading includes the addition of a party, then the court must also consider whether the joinder would satisfy the requirements of the Rules of the joinder of parties and claims… > > Morden and Perell published their text in 2010.

A year later the Court of Appeal, in its decision in [Marks v. Ottawa (City), 2011 ONCA 248](https://www.canlii.org/en/on/onca/doc/2011/2011onca248/2011onca248.html), identified a list of factors to be considered on a motion to amend under Rule 26.01 which included not only that “no amendment should be allowed which, if originally pleaded, would have been struck”, but that “the proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious”.

The Court of Appeal’s analysis of the pleading in that case sheds some light on the precise meaning of that last factor.

In upholding the motion judge’s refusal of that part of the motion which sought to amend a pleading to include a claim for negligent misrepresentation the Court stated: > > I agree that there should be some scope for a plaintiff to bring a novel claim or argue for the creation of a new tort.

In this case, however, the facts alleged fall so far outside of what has been established as negligent misrepresentation that I agree that there is no realistic prospect that the action will succeed. > > Consequently, notwithstanding the language in the *Marks* case that a “proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious”, the specific analysis of the proposed amended claim conducted by the Court of Appeal resembled that performed by a court on a motion to strike a claim (or defence) under Rule 21.01(1)(b).

I therefore conclude that on a motion to amend a statement of claim a court will consider the “tenability” of a proposed claim by applying the principles developed under the Rule 21.01(1)(b) analysis. [13] I agree with the position of the plaintiff on this issue.

In all of the circumstances there are no grounds to warrant an amendment as requested by the defendants. [14] With respect to the Abuse of Process issue the defendants have to demonstrate that the plaintiff has used the legal process for a purpose other than what it was designed to serve, in other words for a collateral or illicit purpose.

See [Norman v. Soule (1991), FC.C.L.T. (2d) 16 (B.C.S.C.)](https://www.canlii.org/en/bc/bcsc/doc/1991/1991canlii2009/1991canlii2009.html).

The defendants have not demonstrated that the plaintiffs have acted in this way. [15] For all of these reasons, leave is denied to amend the counter-claim. [16] The final issue relates to the re-attendance at Examination for Discovery of Thomas Lammer.

The examination of Thomas Lammer was conducted by the defendants’ counsel, Mr. O. Niedzviecki on September 19, 2017.

The transcript of the discovery is 59 pages in length, comprising of 222 questions.

The defendants acknowledge that all of the undertakings have been complied with. [17] The defendants submit that some of the answers given at the discovery of Mr. Lammer may be in conflict with statements made in Affidavits prepared by Mr. or Mrs. Lammer.

If that is the case, the defendants will be able to cross-examine Mr. and Mrs. Lammer at trial about any inconsistencies they assert exist.

It will be up to the trial judge to determine whether there are inconsistencies and any explanation for them.

These matters are trial matters.

There are no exceptional circumstances supporting the defendants’ position that a further examination for discovery is warranted. [18] In summary, therefore, I find and conclude as follows: 1.

That the defendants’ motion to have Thomas Lammer re-attend for a re-examination for discovery is dismissed; 2.

That the defendants’ motion to strike out the plaintiff’s claim on the basis of perjury, intimidation and abuse of process is dismissed; 3.

That the defendants’ motion for an order permitting the laying of a criminal Information is dismissed; 4.

That leave is hereby denied to amend the defendants’ counter-claim to add punitive damages on the basis of perjury, intimidation and abuse of process; 5.

That the defendants’ motion for an order declaring Katharine and Thomas Lammer in contempt of court is dismissed. [19] The plaintiff shall serve and file written submission on costs within 20 days.

The defendants shall serve and file their response within 20 days.

The plaintiff shall serve and file any reply within 10 days. --- FRAGOMENI J. DATE: April 11, 2019

The applicant sought an extension of a consent order requiring them to vacate premises and remove property, or alternative relief regarding the sale of their property.

The respondent opposed, seeking to uphold the original order, permission to remove/sell the applicant's property, and compensation for occupation rent and costs.

The court denied the applicant's request for a lengthy extension, finding that the applicant had ample notice and had previously agreed to the vacation date.

However, the court granted a short extension until April 30, 2019, for the applicant to remove property, after which the respondent could remove or sell it, with the applicant remaining liable for occupation rent and removal costs.

The applicant mother sought to vary an interim consent order for week-about residency of the children, requesting sole custody and supervised access for the respondent father, citing concerns about his opiate use and inability to co-parent.

She also sought spousal support and child support determinations, medical benefits, and distribution of matrimonial home proceeds.

The court dismissed the mother's motion to vary the parenting schedule, finding no material change in circumstances or compelling evidence to disturb the status quo.

The court imputed the father's income at $50,000 and the mother's at $96,913, ordering the mother to pay the father $679 per month in set-off child support and $300 per month in spousal support.

Other financial issues, including retroactive support and expense reimbursements, were reserved for trial.

The appellant appealed his conviction for impaired driving, raising five grounds: the trial judge's handling of a Charter application, alleged misapprehension of evidence regarding vehicle damage, judicial interventions during cross-examination, the use of the appellant's statements to a breath technician, and the sufficiency of reasons for credibility assessment.

The appeal court found no error in the trial judge's dismissal of the Charter application due to the appellant's procedural failures, nor in the inference of a collision based on witness testimony.

The court also determined that the trial judge's interventions did not create an unfair trial or apprehension of bias, and that the appellant's statements, once introduced by the defence, were available for credibility analysis.

The trial judge's reasons for rejecting the appellant's testimony were deemed sufficient.

The appeal was dismissed, and the appellant was ordered to surrender into custody.

The appellants (plaintiffs) appealed an order from Master Jolley compelling them to provide answers to outstanding undertakings from their examination for discovery and to pay costs.

The grounds of appeal included misapprehension of evidence regarding the undertakings chart, error in not granting an adjournment of the motion, and the order not reflecting the Master's handwritten endorsement.

The court found no palpable or overriding error by Master Jolley, noting the appellants' delay in providing supporting documents for their undertakings and their failure to object to the draft order.

The appeal was dismissed, and the parties were invited to make submissions on costs for the appeal.

This is a costs endorsement following a motion to transfer a Small Claims Court action to the Superior Court of Justice.

The court previously ordered that the Defendants were entitled to costs thrown away from the Small Claims action.

In this endorsement, the court fixed the Defendants' costs thrown away at $4,000 on a partial indemnity basis.

The Plaintiff, who was successful in the transfer motion, was also awarded costs of the transfer motion, fixed at $4,000 on a partial indemnity basis.

The court ordered that these amounts be set off against each other, resulting in no net payment.

The court rejected the Plaintiff's argument for full indemnity costs for the procedural transfer motion, clarifying that such a higher scale for condominium corporations typically applies to collection-related costs after a trial on the merits.

The applicant's application was dismissed, leading to a costs endorsement.

The respondent sought substantial indemnity costs, arguing that her offer to settle (a dismissal) should attract Rule 49 consequences.

The applicant contended that an offer to dismiss does not engage Rule 49 because a dismissal is not a "recovery" of judgment.

The court agreed with the applicant, citing *S. & A. Strasser Ltd. v. Richmond Hill (Town)*, and found that Rule 49 did not apply.

Furthermore, the court determined that the applicant's conduct did not rise to a level warranting substantial indemnity costs under Rule 57.01(1), as per *Iannarella v. Corbett*.

Consequently, costs were fixed on a partial indemnity basis at $20,000.00, all-inclusive, to be paid by the applicant to the respondent.

The court fixed costs following a nine-day construction lien trial where success was mixed.

Northridge Homes Ltd. and sub-trade plaintiffs (CAAJ Construction Inc., 2225043 Ontario Inc., and 2142043 Ontario Inc.) sought substantial costs, while the defendants argued for no costs or significantly reduced amounts due to divided success and proportionality.

The court found that all parties shared blame for the protracted trial and applied the principle of proportionality, noting that costs should be fair and reasonable, not merely a mechanical calculation of hours.

The court awarded Northridge Homes Ltd. $60,000 in total costs and the sub-trade plaintiffs $11,150 in total costs, significantly less than requested.

The accused was convicted of possession of proceeds of crime and money laundering after receiving $348,751.57 from a sophisticated phishing fraud and immediately dispersing the funds.

The Crown sought 30 months' incarceration, while the defence sought a conditional sentence.

The court emphasized denunciation and general deterrence, noting the significant impact on the corporate victim and the accused's rapid diversion of the funds.

The accused was sentenced to 18 months' incarceration, two years' probation, and ordered to pay $348,751.57 in restitution.

Following the dismissal of the plaintiffs' motion and the granting of the defendants' cross-motion to discharge a caution on a residential property, the defendants sought costs.

The defendants claimed they were entirely successful and that the plaintiffs' motion was unreasonable.

The court agreed the defendants were entitled to costs on a partial indemnity basis, rejecting the request for substantial or actual indemnity costs due to a lack of evidentiary support regarding the plaintiffs' conduct.

The court fixed the costs at $8,000, noting that the 59.2 hours billed by five lawyers, a student, and a clerk was excessive for the motion.

The applicant sought specific performance of an agreement of purchase and sale (APS) for a unique 1.9-acre property.

The APS was conditional on the seller obtaining Credit Valley Conservation Authority (CVC) permission for "cut and fill" and building permits.

The applicant alleged the respondent failed to act in good faith and take reasonable steps to obtain consent.

The respondent argued she took reasonable steps, incurring significant costs, and terminated the APS when further expenses were deemed unwarranted.

The court found the respondent acted in good faith and dismissed the application, also noting that specific performance would not have been granted due to the applicant's failure to prove the property's uniqueness and the property's subsequent transfer to a third party not involved in the application.

The appellants were successful in their appeal, which resulted in an order for a new trial before a different Deputy Judge.

They sought costs of the appeal in the amount of $7,266.21.

The respondent argued that costs should be in the cause of the action to be re-tried.

The court rejected the respondent's argument, finding that the respondent bore responsibility for the issue that necessitated the new trial by tendering an unsworn and unsigned letter as evidence.

Applying the principle of proportionality, the court fixed the costs of the appeal at $5,000 all-inclusive.