Justin H. Nasseri

The appellants, found in contempt for multiple failures to disclose assets and account for misappropriated investment funds, appealed the motion judge's decision to grant judgment against them for approximately $9 million as a sanction for contempt.

The Court of Appeal held that while striking a defence or barring participation can be a sanction for contempt, final judgment is not directly available as a punishment for contempt under Ontario's Rules of Civil Procedure.

The Court found that the motion judge erred by relying on the merits of the action to grant judgment while simultaneously barring the appellants from addressing those merits.

The judgment was set aside, and the matter remitted to a different judge for a new sentencing hearing.

The Sahebdivani defendants brought a motion for security for costs against the corporate plaintiff under Rule 56.01(1)(d).

The defendants established good reason to believe the plaintiff had insufficient assets in Ontario, citing evidence that the plaintiff was inoperative, its sole director was an undischarged bankrupt, and it faced significant environmental remediation orders.

The plaintiff failed to meet its onus to demonstrate sufficient exigible assets, providing inadequate financial disclosure.

The court granted the motion and ordered the plaintiff to post $75,000 in security for costs in installments.

The appellants, having been found in contempt of a Mareva injunction and ordered to pay approximately $9 million to the respondents, appealed the judgment.

In this endorsement, the Court of Appeal addressed two motions: the respondents' motion for security for costs of the appeal and the proceeding, and the appellants' cross-motion for a stay of a judgment debtor examination order.

The court granted the respondents' motion for security for costs in part, finding the appellants' contempt a compelling reason under Rule 61.06(1)(c).

The court dismissed the appellants' motion for a stay, determining that the examination order was not automatically stayed and that compliance would not cause irreparable harm given the appellants' existing obligations to disclose assets.

The appellant, a former grade seven teacher, appealed his convictions and sentence for committing indecent acts and sexual invitation involving a 12-year-old student.

The appellant argued the trial judge erred in assessing the complainant's credibility, failing to address a motive to fabricate, and misapplying the burden of proof.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's credibility findings or assessment of the evidence.

The sentence appeal was also dismissed, as the two years less a day sentence was fit and the trial judge properly considered the appellant's mental health.

In a long-standing and highly acrimonious family trust dispute, the court considered multiple motions, including motions to dismiss for delay and abuse of process, and motions for a further and better accounting.

The court found that the plaintiffs (two of the sons) had engaged in an abuse of process through a 'scorched-earth' litigation strategy, including failing to produce relevant documents they controlled, changing counsel repeatedly, refusing to mediate, and launching collateral attacks.

Consequently, the court dismissed their actions.

However, recognizing that the trusts still required an accounting for the benefit of the other beneficiaries (the grandchildren), the court ordered the remaining trustees to provide a further and better accounting, and ordered the redemption of the matriarch's shares in the underlying holding company.

The defendants, Zhiyi Zhou and Lina Wu, brought a motion to set aside the report of Master Wiebe, alleging errors in the Master's findings regarding a construction contract dispute and a reasonable apprehension of bias.

The Master had found that Mr. Zhou engaged in subterfuge regarding contract terms, improperly terminated the agreement, and was not credible.

The Superior Court dismissed the defendants' motion, confirming the Master's report.

The court found no error in the Master's application of the Browne v. Dunn rule, nor any reasonable apprehension of bias, emphasizing the high threshold for such claims and the need to accommodate self-represented litigants while respecting the other party's rights.

Following a series of motions and applications in a complex family estate and joint venture dispute, the court determined the appropriate costs awards.

The court awarded partial indemnity costs to Mattamy Homes for an abandoned summary judgment motion and a successfully defended summary judgment motion.

The litigation guardian was also awarded partial indemnity costs.

However, the joint attorneys for property were awarded substantial indemnity costs of $180,000 against the Bistricers, as the court found the Bistricers' conduct in the litigation to be reprehensible, duplicitous, and driven by ulterior motives.

The appellant corporation sought to demolish a heritage-designated building it owned.

The City of Hamilton rejected the application and sent written notice of rejection to the sole director of the corporation at his residential address rather than to the corporation's registered address.

The appellant argued that the notice was improperly served under section 67(1)(b) of the Ontario Heritage Act, which requires service to the "last known address" of the person.

The appellant contended that the failure to serve at the registered address meant the municipality failed to comply with the statutory service requirement, triggering a deeming provision that would constitute deemed consent to the demolition application.

The application judge found that the city had taken positive steps to give notice and that the notice was actually received by the sole directing mind of the corporation.

The Court of Appeal upheld this decision on the unique facts of the case.

This decision addresses the costs for a three-day trial where the plaintiffs were largely successful.

The court considered the plaintiffs' Rule 49 offer to settle, which they argued triggered substantial indemnity costs, and the defendants' arguments against it, including the implied withdrawal of the offer by subsequent settlement discussions.

The court found that the plaintiffs' Rule 49 offer was not implicitly withdrawn by subsequent non-Rule 49 offers, distinguishing prior case law.

The court also assessed the reasonableness of the plaintiffs' claimed costs under Rule 57.01, reducing them due to excessive lawyer time, duplication of effort, and disallowing a specific disbursement for a legal opinion deemed unnecessary.

Ultimately, the defendants were ordered to pay the plaintiffs $147,966.49 in costs.

This endorsement resolves five outstanding issues between the parties following a prior judgment (2017 ONSC 5680).

The court determined that the quantum of the judgment should not be deferred despite ongoing related proceedings, that simple interest applies to the loan amounts, and accepted the defendants' position on pre-judgment interest for the deposit.

The court also affirmed that Tzimas J. remains the case management judge for outstanding cross-claims and lease issues, and ordered the Certificate of Pending Litigation (CPL) to be removed at the plaintiffs' expense.

The appellant appealed an Arbitrator's decision denying his claim for $62,877.65 for the construction of a residential aqua therapy pool as a medical or rehabilitation benefit following a motor vehicle accident.

The Director's Delegate upheld the Arbitrator's finding that the home pool was not a reasonable and necessary expense, as the appellant had access to a public pool that met his temporary treatment needs and had shown improvement with its use.

The appeal was dismissed.

The plaintiffs entered into a complex series of agreements to purchase a commercial property from the defendants.

The plaintiffs advanced approximately $2 million to the defendants prior to closing.

The transaction failed to close on the extended closing date of September 18, 2015.

The court found that neither party was ready, willing, and able to close on that date, as the plaintiffs lacked financing and the defendants' tender was deficient.

The court determined that $1,735,000 of the advanced funds was a loan bearing 12% interest, for which the individual defendants were jointly and severally liable, and the remaining $225,000 was a deposit.

The court ordered the return of all funds to the plaintiffs, lifted the certificate of pending litigation, and dismissed the defendants' counterclaim for damages.

Following a motion where the moving party successfully sought to withdraw admissions involving approximately $14,000,000, the court determined the issue of costs.

The court found that the responding parties took a tactical and precarious position in opposing the motion, as the granting of leave was foreseeable absent any evidence of prejudice.

Costs were awarded to the moving party fixed at $15,000.

Following a certification motion in a proposed class action by former junior hockey players seeking minimum wage and overtime pay, the court determined the costs awards.

The plaintiffs succeeded in certifying the action against the Canadian teams but failed against the American teams.

The court awarded the plaintiffs $1,212,065.63 in partial indemnity costs, with $500,000 payable forthwith and the balance in the cause.

The American teams were awarded $200,000 in costs, which the court ordered to be credited against the plaintiffs' award, akin to a Bullock or Sanderson order, reflecting that both sides were responsible for the excessive litigation expense.

The moving party, in the midst of complex family trust litigation, sought leave to withdraw admissions made in a previous affidavit and to file three new affidavits.

The moving party argued the admissions regarding multi-million dollar shareholder loans were made inadvertently due to confusion and reliance on her former, now-deceased counsel.

The responding parties opposed, arguing the admissions were formal and the new evidence was an attempt to repair her case mid-hearing.

The court granted the motion, finding the admissions were likely inadvertent, raised a triable issue, and caused no non-compensable legal prejudice to the responding parties.

The court emphasized the need to decide the case on its true merits rather than a solicitor's or party's mistake.

The respondent was successful on a half-day motion brought by the applicants to remove her solicitors and add a defendant.

She sought costs on a substantial indemnity basis of $81,193.45, or alternatively on a partial indemnity basis of $61,637.67.

The court found that substantial indemnity costs were not warranted and that the requested amounts were disproportionate.

Costs were fixed and awarded to the respondent in the total amount of $42,520.33.

The applicants brought a motion to remove Cambridge LLP as solicitors of record for Sheila O’Donovan and to add Adam Cappelli as a party respondent.

The court applied a nine-factor test to assess the solicitor removal request, considering the likelihood of Mr. Cappelli being a witness and potential conflicts.

The court found no real conflict and upheld the client's right to choose counsel.

The motion to add Mr. Cappelli as a respondent was dismissed due to the advanced stage of the proceedings and delay by the applicants, though without prejudice to a future application for passing accounts.

This is a costs endorsement following an appeal and cross-appeal in a civil matter.

The respondents (Jarbeaus) were successful on the cross-appeal while the appellant (McLean) was unsuccessful on the appeal.

The court awarded costs to the Jarbeaus in the amount of $75,000, allocated as $18,000 to the cross-appeal and $57,000 to the appeal, inclusive of disbursements and applicable taxes.

The court declined to fix prejudgment interest or vary the trial costs award of $231,000.

The respondents purchased a defective new home from a builder and hired a negligent lawyer who failed to sue the engineer within the limitation period, incorrectly advising them they had no cause of action against the engineer.

After settling their first action, the respondents sued the lawyer for negligence.

The trial judge admitted the lawyer's negligence but characterized both the jury's damage assessments (cost to repair at $433,000 and diminution in value at $265,000) as perverse, awarded judgment for the lesser amount of $190,000 (after deducting the settlement amount), and significantly reduced the respondents' costs despite them bettering their settlement offer.

The Court of Appeal allowed the cross-appeal, finding the jury's assessments were not perverse, that damages should be awarded on a cost-to-repair basis at $433,000 without deducting the settlement amount, and that the respondents were entitled to substantial indemnity costs under Rule 49.10.

Family members brought a medical negligence action after a hospital patient died from viral myocarditis shortly after presenting to the emergency department.

A civil jury found two treating physicians liable and awarded $600,000 in damages.

On appeal, the physicians argued the trial judge made multiple procedural and instructional errors, including permitting further discovery at trial, limiting expert evidence, improperly charging the jury on standard of care and causation, misphrasing the causation question, misdirecting the jury on agreement requirements, and refusing to poll the jury.

The Court of Appeal held that most alleged errors were unfounded and that the causation wording error in the verdict questions caused no substantial wrong because the jury was repeatedly instructed on the correct “but for” test.

The appeal was dismissed.