Kenneth Prehogan

This endorsement addresses the costs arising from a two-week trial where the Plaintiff and Third Party were entirely successful.

The court awarded substantial indemnity costs for the trial, citing the Defendants' unreasonable litigation conduct and the Garber Defendants' rejection of a generous Rule 49 offer to settle.

Additionally, costs thrown away due to an adjournment caused by Ms. Garber's ill health were awarded against the Garber Defendants, though reduced from the amount claimed.

The decision also clarifies that the Costs Subcommittee's recommended rates for Rule 57 are outdated and discusses the limited relevance of a litigant's ability to pay costs without sufficient evidence.

The plaintiff, Jack Ganz Consulting Ltd. (JGC), brought a motion for an order compelling the defendant, Recipe Unlimited Corporation, to produce additional documents for inspection under Rules 30.06 and 30.08.

The defendant resisted, arguing that the plaintiff was attempting to vary a prior scheduling order, that issue estoppel applied, that sufficient discovery had already occurred, and that the requests were speculative and irrelevant, particularly in the context of a pending summary judgment motion.

The Master found jurisdiction to hear the motion and that issue estoppel did not apply.

However, the Master largely denied the plaintiff's specific requests for further production, concluding that the plaintiff had already received substantial discovery and that many of the requested documents were not relevant or proportionate to the pending summary judgment motion, or that the plaintiff had not provided convincing evidence of their existence or necessity.

Costs were ordered to be "in the cause."

During a trial for nuisance, the defendants sought to introduce evidence of the plaintiff's alleged retaliatory conduct (e.g., loud music, smoke) to mitigate punitive damages.

The court ruled this evidence inadmissible, finding no causal connection between the plaintiff's post-nuisance conduct and the defendants' initial actionable conduct (building a dock) or their failure to rectify it.

The court emphasized that for such evidence to be relevant to punitive damages, it must have provoked the defendant's actionable conduct, and any defense based on the plaintiff's conduct influencing the failure to rectify must be pleaded.

The appellants brought a second motion for reconsideration of a prior Court of Appeal decision that had dismissed their appeal and affirmed a judgment against them.

The appellants sought to set aside or vary the prior decision on grounds of fraud, mistake, and significant new material facts.

The Court of Appeal dismissed the motion, finding that the appellants were recycling arguments already considered and rejected, mischaracterizing the basis of their first motion to reconsider, and presenting arguments without merit regarding the respondent's standing and the credibility of witnesses.

The court further ordered that the appellants could not initiate further proceedings without paying outstanding costs and obtaining leave of the panel.

The plaintiff sought leave to amend its statement of claim to plead, in the alternative, breach of the defendant's obligation to give reasonable notice of termination of a consulting agreement, without alleging new facts.

The defendant opposed, arguing it raised a statute-barred new cause of action or lacked particulars.

The court granted leave to amend, finding it was an alternative theory of damages based on existing facts, not a new cause of action, and that sufficient material facts were pleaded.

The plaintiff was ordered to pay $5,000 in costs for the amendment.

The defendant's cross-motion to dismiss the action for non-compliance with a costs order was denied, but its motion to strike certain evidence was granted, with $1,000 costs awarded for that portion.

The plaintiffs, as judgment creditors, previously obtained a civil contempt order against the defendant judgment debtor for concealing income and moving assets to defeat his creditors.

The penalty phase was adjourned to allow the defendant to purge his contempt by paying $112,623.

The defendant paid the amount in full, albeit past the deadline.

The court determined the appropriate sentence for the contempt, weighing mitigating factors (purging the contempt, no prior record, apology) against aggravating factors (intentional and long-running misconduct).

The court ordered the defendant to complete 75 hours of volunteer community service over six months.

The appellants moved under Rule 59.06(2)(d) of the Rules of Civil Procedure for reconsideration of the Court of Appeal's decision maintaining awards of damages against them.

The appellants contended that the trial judge miscalculated damages as of a specific date by failing to consider post-date gains from a transaction.

The Court of Appeal dismissed the motion, finding that the appellants were attempting to reargue an issue that had been decided against them at trial and on appeal, and that the theory of damages was not raised in the original appeal.

The applicant brought an application for a declaration that a right-of-way granted by the respondent municipality in 1971 included the right to permit parking on the property.

The municipality argued the right-of-way only allowed for access and egress.

The court applied principles of contract and easement interpretation, considering the historical context and subsequent conduct of the parties.

The court declared that the right-of-way included the ancillary right to permit parking to access commercial premises, provided it was non-exclusive and did not amount to occupation.

The defendants sought leave to appeal an order compelling them to answer questions refused during an examination in aid of execution.

They also requested an extension of time to file the notice of motion for leave to appeal and a stay of the order pending appeal.

The court dismissed the motion for leave to appeal, finding that neither branch of the test under Rule 62.02(4) was met.

There was no conflicting decision on a matter of principle, and no serious doubt about the correctness of the order, nor did the proposed appeal raise matters of general importance beyond the immediate parties.

Consequently, the requests for an extension of time and a stay were also dismissed.

Shareholders of two successive corporate ventures to develop oil and gas fields in Russia sued defendants for fraudulent misrepresentation, deceit, and conspiracy.

The defendants had induced the plaintiffs to invest US$50 million in a sham public company (Magellan) by falsely representing that another investor (BDW) had committed to investing US$70 million.

When the fraud was discovered, the parties reorganized under a new company (Koll), but the defendants continued to deceive the plaintiffs about asset values and IPO prospects to induce further investment.

The trial judge awarded full compensatory damages to the plaintiffs.

On appeal, the court upheld liability for pre-June 2006 conduct but set aside liability for post-June 2006 conduct based on unpleaded fraudulent misrepresentation claims regarding IPO-related statements, while maintaining liability for wrongful garnishment of remaining Magellan funds.

The court addressed a costs dispute concerning a claimed accounting disbursement incurred during motion proceedings involving a family trust dispute.

The responding parties argued that the accounting work performed by an accounting firm was duplicative of the work performed by an expert witness retained by the moving party.

The court found that the accounting firm and the expert witness served distinct roles and that the accounting work was reasonably necessary in light of accounting evidence advanced by the opposing parties.

The court also noted that the responding parties themselves had retained multiple accounting professionals.

The challenged disbursement was therefore allowed.

Following a successful interim motion, the plaintiff sought substantial partial indemnity costs including legal fees and significant disbursements.

The defendants challenged the seniority of plaintiff’s counsel, the necessity of multiple cross-examinations, and certain expert-related disbursements.

The court rejected arguments that senior counsel or the scope of cross-examination rendered the costs unreasonable and held that the successful party was entitled to recover reasonable litigation expenses incurred to respond to the defendants’ positions.

Expert accounting fees incurred to respond to the opposing expert were allowed.

The court fixed legal fees at $75,000 plus HST and allowed most disbursements, reserving determination of one accounting disbursement pending further submissions.

The plaintiff brought a motion for interim relief under the oppression provisions of the OBCA against his parents and various family corporations.

He sought an interim distribution of proceeds from a US litigation and the continuation of monthly payments he had historically received.

The court declined to order the interim distribution due to the contingent nature of the funds, but ordered the funds protected and settlement information disclosed.

The court also declined to order the continuation of historical monthly payments, finding them to be personal gifts.

However, the court found a strong prima facie case of oppression regarding unequal cash advances made to other shareholders from a family holding company, and ordered interim equalization payments and a halt to non-dividend cash advances.

Following Minutes of Settlement resolving estate litigation concerning farm property and estate assets, the parties disputed the interpretation of tax liability provisions in the settlement.

The responding party intended to pursue a tax strategy regarding estate filings and potential CRA assessments, while the moving party sought clarification and orders restricting what she characterized as a high-risk tax plan.

The court held that the Minutes of Settlement constituted a contract whose terms were clear and unambiguous when interpreted using standard contractual interpretation principles.

The agreement allocated full responsibility for tax restructuring, related transactions, and resulting liabilities to the responding party, including an obligation to indemnify the moving party and the estate trustee for any resulting liability.

The request for further clarification and restrictions was therefore dismissed.

The parties executed Minutes of Settlement following a mediation, which required the plaintiff to pay $1,325,000 to the defendant and for a farm property to be vested in the plaintiff.

A dispute arose regarding the tax consequences of the settlement.

Given the delay and the defendant's need for funds, the court issued an interim order implementing the non-controversial terms of the settlement, requiring the immediate payment of the funds into escrow and the registration of the vesting order and collateral mortgage, pending a final decision on the disputed issues.

The applicant sought to continue an interim injunction over an aircraft owned by the respondent, an agency of the Kingdom of Swaziland, claiming a non-possessory lien under the Repair and Storage Liens Act for funds advanced for refurbishment.

The court found the respondent was not immune under the State Immunity Act due to the commercial activity exception.

However, the court dismissed the motion, finding the applicant was not a 'repairer' under the Act, the limitation period had expired, and there was no irreparable harm to justify an injunction.

A motion by proposed intervenors was also dismissed.

The aircraft was ordered released to the respondent, with a seven-day stay pending appeal.

The plaintiffs invested $50 million in a Russian oil and gas joint venture, relying on representations made by the defendants regarding the involvement of another major investor and the status of the corporate vehicles.

The plaintiffs later discovered that the corporate vehicles were sham public companies, the other investor had not funded its portion, and the defendants had engaged in stock manipulation and unauthorized issuance of free-trading shares.

The plaintiffs sued for deceit, breach of fiduciary duty, and unlawful conspiracy.

The defendants counterclaimed for breach of contract, inducing breach of contract, and malicious prosecution.

The Superior Court of Justice found several defendants liable for fraudulent misrepresentation, breach of fiduciary duty, and conspiracy, awarding substantial damages to the plaintiffs.

The defendants' counterclaim was dismissed in its entirety.

Following earlier summary judgment and Rule 21 rulings, the court determined the appropriate costs award between the parties.

The plaintiff obtained summary judgment against the corporate defendant for misappropriated funds and successfully resisted the individual defendant’s Rule 21 motion challenging the pleadings, but failed on its claim against the individual defendant under Rule 20.

The court held that costs should follow the overall result and rejected the defendants’ argument that costs should be parsed according to individual legal arguments or sub‑issues.

Taking into account the plaintiff’s partial lack of success against the individual defendant, the court reduced the claimed amount and awarded partial indemnity costs.

The two defendants were held jointly and severally liable for the costs award.

The plaintiff franchisor contracted with the corporate defendant to manage and pay utility bills for its stores.

Upon terminating the contract, the plaintiff transferred over $1.3 million to the corporate defendant to pay outstanding bills.

The corporate defendant misappropriated the funds, transferring them to its operating account instead of paying the utilities, and subsequently signed a mutual release without disclosing the misappropriation.

The plaintiff brought a motion for summary judgment for the return of the funds, and the personal defendant moved to dismiss the claims against him.

The court granted summary judgment against the corporate defendant, finding it was unjustly enriched and that the mutual release was vitiated by fraudulent misrepresentation.

However, the court dismissed the claims against the personal defendant, finding no basis to pierce the corporate veil.

Following a civil judgment awarding $3.5 million, the court determined the appropriate quantum of costs and pre-judgment interest.

The parties agreed the successful party was entitled to partial indemnity costs to September 30, 2010 and substantial indemnity costs thereafter but disputed the applicable hourly rates.

The court fixed partial indemnity rates for counsel after mediation and accepted substantial indemnity rates calculated at 1.5 times the partial indemnity rate pursuant to Rule 1.03 of the Rules of Civil Procedure.

The court also addressed deductions for certain attendances and confirmed taxable disbursements.

Pre-judgment interest was ordered on the judgment amount from August 27, 2003 at 3.3% pursuant to s.127(1) of the Courts of Justice Act.