Kenneth A. Dekker

This endorsement addresses the costs of an action brought by CIT Financial Ltd. against several defendants, which was dismissed on summary judgment as statute-barred.

The defendants sought costs on a partial indemnity scale, including legal and expert fees.

The court considered the complexity, importance, and reasonable expectations of the parties.

While the court found the defendants were diligent in bringing their summary judgment motion after discoveries, it significantly reduced the claimed expert fees for Zeifmans (to one-third) and Duff & Phelps (to 50%).

This reduction was due to the defendants' experts' unreasonable refusal to cooperate with the plaintiff's expert, leading to unnecessary duplication of work in calculations.

Ultimately, CIT Financial Ltd. was ordered to pay the defendants legal fees totaling $1,706,147.92 and reduced disbursements (including expert fees) totaling $550,182.34.

The defendants brought a motion for summary judgment seeking to dismiss the plaintiff's action for indemnity under a share purchase agreement.

The action was based on alleged breaches of a tax representation and warranty.

The defendants argued the action was statute-barred and that the plaintiff's claim for "loss of use of funds" was limited by contract.

The court granted summary judgment, finding the action was statute-barred because the six-year limitation period began when the plaintiff knew the material facts of the breach and the resulting "claim" (Revenue Canada's reassessment), not upon a demand for indemnity or its refusal.

The court also dismissed the claim for loss of use of funds beyond the contractually agreed prime rate.

The defendants were successful on a motion to produce a document over which the plaintiff had asserted solicitor-client privilege.

The defendants sought costs of $11,406 on a partial indemnity basis, while the plaintiff submitted a bill of costs for $3,566.52.

The court found the defendants' claimed hours excessive for a relatively straightforward motion and emphasized the principle of proportionality.

Applying Rule 57, the court fixed costs payable to the defendants at $5,000 plus HST and disbursements.

The plaintiffs sought leave to appeal an interlocutory costs order in a securities misrepresentation class action.

The motion judge had ordered the defendant to pay 50% of the costs forthwith and 50% in the cause, while disallowing disbursements that had already been paid by settling defendants.

The Divisional Court dismissed the motion for leave to appeal, finding that the plaintiffs failed to satisfy the tests under Rule 62.02(4)(a) or (b).

The court emphasized the high degree of deference owed to discretionary costs orders, particularly those made by an experienced case management judge in a complex class proceeding.

In a securities class action arising from the collapse of a forestry company, the plaintiffs sought approximately $2.6 million in costs following certification and leave motions brought under the Class Proceedings Act, 1992 and the Securities Act.

Several defendants argued that costs should not be awarded because the plaintiffs had already recovered legal expenses through settlements with other defendants and because the claimed costs were excessive.

The court held that the plaintiffs were largely successful but not entirely successful due to an unresolved assignment issue affecting certain class members.

The court also ruled that disbursements could not be recovered again because they had already been indemnified through settlements.

Exercising its discretion, the court ordered a hybrid costs award: part payable immediately and part payable in the cause.

In a group of related civil proceedings involving multiple plaintiffs and the same defendants, the court considered a request concerning the deadline for filing third party claims.

Following a prior order, the parties jointly sought an extension of time to file all third party claims.

The court granted the request on consent and extended the deadline to September 25, 2015.

The endorsement reflects a procedural timetable adjustment rather than a substantive determination of the underlying claims.

In this proposed securities class action arising from the collapse of a public issuer, the plaintiffs sought leave under Part XXIII.1 of the Securities Act and certification of claims on behalf of purchasers of notes and shares in the primary and secondary markets.

Subject to one contested issue concerning former noteholders who had assigned their notes during the class period, the motions were unopposed or proceeded on consent.

The court granted leave and certified the action, holding that the substantive dispute over whether assigned noteholder claims vested in transferees under New York law should be postponed until after certification.

The court found it procedurally preferable and fair to defer that merits issue until after a defence was delivered, thereby avoiding interlocutory delay in a large and complex class proceeding.

Invesco sought leave to appeal orders sanctioning a Plan of Compromise and Reorganization under the CCAA and approving a settlement that released Ernst & Young LLP from claims arising from its auditing of Sino-Forest Corporation.

The Court of Appeal denied leave, finding that the proposed appeals failed to meet the stringent test for leave in CCAA proceedings.

The appeal of the Sanction Order was moot, and the issues regarding the third-party release in the Settlement Order were governed by the court's prior decision in ATB Financial.

The defendants appealed an order striking paragraph 54 of their statement of defence.

The Court of Appeal allowed the appeal, finding it was not plain and obvious that the allegations could not succeed as a defence or partial defence to the claims.

The Court noted that a fiduciary is not responsible for all damages suffered by a complaining party regardless of their cause, distinguishing the case from Plaza Fiberglass.

The appeal was allowed with costs fixed at $7,500.

The parties entered into a joint venture agreement to purchase and develop property.

When a creditor demanded repayment of a note, only one partner was willing to pay.

That partner's company purchased the note and eventually foreclosed on the property when the other partners failed to pay their shares.

The appellants sued for breach of the joint venture agreement and return of their investment.

The Supreme Court of Canada held that the agreement was not terminated and had not been breached.

The Court also dismissed the unjust enrichment claim, finding that the contract and the foreclosure proceedings provided a juristic reason for the deprivation.

The appellants appealed a motion judge's refusal to stay Ontario proceedings against them based on an exclusive jurisdiction clause favouring British Columbia.

The Court of Appeal upheld the motion judge's decision, agreeing that the respondents had shown a 'strong case' not to enforce the clause.

The court deferred to the motion judge's weighing of factors, including that the claims were part of a larger multi-party action in Ontario, the respondents were unsophisticated, the clause was in a pre-printed contract, and the appellants showed no juridical advantage to a trial in British Columbia.

The appeal was dismissed.

The appellants appealed a motion judge's decision finding that a 'Guarantee/Special Rates/Contract Addendum' was a separate and distinct agreement from the underlying tour operator agreements, and therefore not subject to their forum selection clauses.

The Court of Appeal allowed the appeal, holding that the addendum was part and parcel of the tour operator agreements.

Applying the strong cause test from Z.I. Pompey Industrie, the Court found no exceptional circumstances to justify departing from the parties' chosen forum of Aruba (and Cuba for one hotel).

The action was permanently stayed.

The plaintiff, an experienced investor, invested in special warrants and special shares of two private companies on the advice of his broker.

The broker failed to warn him of the risks associated with these investments, including the risk that the planned initial public offerings might never take place.

The plaintiff lost his entire investment and sued the broker and her firm for negligence.

The trial judge found the defendants liable but reduced the damages by 50% due to the plaintiff's contributory negligence in signing subscription agreements without reading them.

The defendants appealed.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the broker breached her duty to warn and that her misrepresentation precluded the defendants from relying on the subscription agreements to raise an estoppel.

The appellant borrower agreed under a commercial loan arrangement to pay the lender's actual legal fees and authorized the lender to debit its account for those fees.

After the lender paid its solicitors from the appellant's account over the appellant's objection and without providing meaningful billing detail, the appellant sought an assessment under the Solicitors Act.

The Court of Appeal held that s. 11 applied because the bills had been paid, but that the contractual wording did not preclude assessment and did not amount to a waiver.

Special circumstances existed because the payment was made over objection, the third party payer had virtually no information about the work done, and only an assessment could determine whether the fees actually fell within the contractual obligation.

The appeal was allowed, an assessment was directed, privilege issues were left to the assessment officer, and costs were awarded to the appellant.

The appellant bank appealed an order striking portions of its defence in a cheque conversion action arising from employee fraud and forged endorsements.

The court held it lacked jurisdiction over the procedural complaint about allowing a late Rule 21 motion because that issue was interlocutory and required leave to the Divisional Court.

On the merits, the court held that the Supreme Court's strict liability conversion analysis in Boma bars a defence of contributory negligence, but does not eliminate the distinct statutory defence of preclusion under s. 48(1) of the Bills of Exchange Act.

Because the impugned paragraphs were unclear and could amount to contributory negligence, they were properly struck to that extent, but the appellant received leave to amend to plead any legally available defence clearly.

Costs were ordered in the cause.