Katherine J. Menear

Following a five-week trial where the plaintiffs succeeded in claims for breach of fiduciary duty and conspiracy, the court determined the appropriate scale and quantum of costs.

The plaintiffs sought over $6.2 million on a substantial indemnity basis.

The court rejected substantial indemnity costs, finding the defendants' litigation conduct did not warrant such a sanction and the pre-litigation conduct was already addressed through punitive damages and disgorgement.

The court awarded partial indemnity costs of $2,200,000 for the action and $20,000 for the counterclaim, apportioning liability among the defendants based on the claims.

The Ontario Superior Court of Justice ruled on the applicable exchange rate and prejudgment interest following a judgment where defendants were found to have breached fiduciary duties and conspired to conceal assets.

The court applied the default exchange rate under s. 121(1) of the Courts of Justice Act, which mandates conversion at the date of payment, rejecting the defendants' argument for an earlier transaction date.

The court found that a change in exchange rate alone does not constitute inequity to depart from the default rule.

Prejudgment interest was awarded on the damages and disgorgement amounts from the date the cause of action arose (August 15, 2012), at a rate of 1.3%, in accordance with s. 128(1) of the CJA, excluding punitive damages.

The plaintiffs, founders of a venture capital fund, brought an action against their co-founders and a third-party purchaser for breach of fiduciary duty, breach of contract, and conspiracy.

The court found that the co-founders secretly established a competing fund and conspired with the purchaser to acquire a portfolio company at a discounted price while concealing a valuable asset (the Tinder app).

The court awarded compensatory damages, disgorgement of profits, and punitive damages against the defendants.

Centoco Holdings Limited and KS Centoco Ltd. ("Centoco") brought two motions.

The first sought to compel Magna International Inc. ("Magna") to produce its CEO, Donald Walker, for examination for discovery in a winding-up action, arguing he was instrumental in a key business decision.

The second motion sought to compel Magna to answer refused questions and produce documents related to its airbag business and "Directed Source Mark-Ups" in the main action, and questions regarding additional documents produced post-discovery.

The court granted both motions, finding Centoco had a prima facie right to examine Walker and that the requested information on the airbag business and additional documents was relevant.

The court directed counsel to narrow the scope of document production to avoid trial adjournment and adjourned the request for a further affidavit of documents.

Loblaw Properties sought to declare the Town of Smiths Falls' right to repurchase a land parcel void or unconscionable, arguing it failed to develop the property within the prescribed four-year period.

The Town cross-applied to affirm and enforce its right and correct registration errors.

The court found the Town's right to be a valid equitable interest binding Loblaw, which had full notice of the condition.

The court dismissed Loblaw's arguments regarding uncertainty, penal nature, and unconscionability, noting Loblaw's sophistication and failure to provide proper valuation evidence.

Loblaw's application was dismissed, and the Town's cross-application was granted, including declarations and rectification of the title register.

Following reasons dismissing most aspects of a motion to strike, the court determined the appropriate costs award.

The responding parties were largely successful on the motion, though one claim for unjust enrichment was struck with leave to amend.

The court applied Rule 57 of the Rules of Civil Procedure and the principles from Boucher regarding fair and reasonable costs.

While the successful parties sought substantial indemnity or partial indemnity costs exceeding $19,000, the court found those amounts excessive for a short motion and fixed costs at $11,000 inclusive of HST and disbursements.