Kenneth Prehogan

The moving party sought leave to appeal a lower court decision.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay $15,000 in costs to the responding parties.

The applicant brought a motion to continue an ex parte FLA Preservation Order against her former spouse and a Mareva Order against his family members and corporate affiliates.

The applicant alleged that the respondent spouse had dissipated tens of millions of dollars from the sale of a business to defeat her equalization claim.

The court found a serious issue to be tried and continued the FLA Preservation Order against the respondent spouse to prevent further depletion of his remaining assets.

However, the court dissolved the Mareva Order against the family members and affiliates, finding no demonstrated risk that they would remove or dissipate the assets from the jurisdiction.

Following a successful motion for summary judgment in a fraudulent conveyance action, the plaintiff sought costs on a substantial indemnity scale against the defendants and the intervenor.

The court noted the defendants' delay tactics, unfounded allegations of fraud, and lack of credibility.

The court awarded the plaintiff costs of $175,000 against the defendants and $30,000 against the intervenor, finding the amounts reasonable given the complexity introduced by the defendants' failed defenses.

The plaintiff brought a motion for summary judgment to declare the transfer of a property from the judgment debtor to his spouse as a fraudulent conveyance.

The transfer occurred shortly after a draft judgment of $1.5 million (U.S.) was released against the debtor.

The defendants argued the plaintiff lacked standing, the action was statute-barred, and counterclaimed for slander of title.

The court found the transfer was a fraudulent conveyance intended to defeat creditors, dismissed the defendants' motion to adduce new evidence, dismissed the counterclaim, and granted summary judgment in favour of the plaintiff, including a tracing order to a subsequently purchased property.

Following a trial regarding reciprocal easements and commercial redevelopment, the court determined costs.

The plaintiffs achieved divided success, obtaining some but not all of the declaratory relief sought and failing to obtain a permanent injunction.

The court declined to make a distributive costs order, instead reducing the plaintiffs' partial indemnity costs by 50% to reflect their divided success and over-staffing, awarding them $638,804.86 against the Market Village defendants.

The Kennedy defendants were awarded $70,000 in partial indemnity costs against the plaintiffs.

The parties made written submissions regarding the costs of the appeal and a related motion for leave to adduce fresh evidence.

The Court of Appeal ordered no costs as between the respondent and the Nealon appellants.

The respondent was awarded costs of the appeal on a partial indemnity basis in the amount of $40,000, inclusive of disbursements and HST, against the Garber appellants.

The plaintiff vendor brought a motion for summary judgment against the defendant purchaser for failing to close a real estate transaction.

The defendant argued that the plaintiff misrepresented the zoning of the property and breached the agreement by refusing to grant further extensions.

The court found no genuine issue requiring a trial, noting the clear 'entire agreement' and 'as is' clauses in the Agreement of Purchase and Sale, and the defendant's own failure to properly investigate the zoning.

The court awarded the plaintiff damages for the loss of bargain and carrying costs, finding she had reasonably mitigated her damages by reselling the property.

The appellants appealed a trial judgment finding that a dock they constructed on Lake Simcoe constituted a private nuisance to the neighbouring respondent.

The trial judge had ordered a mandatory injunction for the dock's removal, punitive damages of $100,000, and substantial indemnity costs.

The Court of Appeal upheld the finding of nuisance and the mandatory injunction, noting the dock substantially and unreasonably interfered with the respondent's ability to use their boat.

The Court also upheld the punitive damages against the property owners (Garber) due to their refusal to remedy the nuisance.

However, the Court allowed the appeal in part by setting aside the punitive damages against the contractor (Nealon) and reducing the costs awarded against him to a partial indemnity scale, finding his conduct did not warrant such exceptional penalties.

Following the dismissal of the plaintiff's $27 million breach of contract claim on summary judgment, the successful defendant sought costs on a substantial indemnity basis.

The defendant relied on the plaintiff's conduct and a pre-litigation offer to settle for $70,000.

The court found the plaintiff's conduct was not reprehensible and held that Rule 49 cost consequences do not apply to pre-litigation offers.

The court awarded the defendant partial indemnity costs fixed at $180,000, applying a reduction to the defendant's claimed hours and rates for proportionality.

The moving party Plaintiffs ("AFEX") sought a continuation of an ex parte Mareva injunction against the Defendants (MBM Trading, Mendel Streicher, and Emmeco Inc.).

AFEX's claim arose from six USD wire transactions totaling over $845,000 that were initiated by MBM but subsequently rejected by MBM's financial institutions due to insufficient funds or frozen accounts.

The court found a strong prima facie case of fraud, inferring that Streicher knew or was wilfully blind to the frozen status of his accounts when initiating the transactions.

The court rejected the Defendants' arguments regarding jurisdiction and the absence of a signed account agreement, finding that the parties' conduct implied an agreement to Ontario jurisdiction and that a mediation clause did not preclude urgent interlocutory relief.

The court also found a serious risk of asset dissipation, noting Streicher's lack of transparency regarding the use of AFEX funds and his rapid repayment of other creditors.

The Mareva injunction was continued, and the MBM Defendants were ordered to provide a sworn statement of worldwide assets and submit to examinations.

The plaintiffs and defendants own contiguous commercial retail centres and share reciprocal easements for access and parking.

The defendants proposed a major redevelopment that would expand their building footprint onto lands subject to the plaintiffs' easement, eliminating hundreds of surface parking spaces.

The plaintiffs sought declarations and an injunction to prevent the development.

The Superior Court of Justice found that the proposed development would substantially interfere with the plaintiffs' easement rights and overburden the remaining shared parking.

The court granted specific declarations confirming the breach of the easements but declined to issue a permanent injunction, finding it unnecessary given existing structural safeguards.

The defendant, Recipe Unlimited Corporation (Cara), brought a motion for summary judgment to dismiss the plaintiff, Jack Ganz Consulting Ltd.'s (JGC), claims for breach of contract and common law reasonable notice.

The court found that JGC had waived the automatic renewal clause of its consulting agreement with Cara, causing the agreement to terminate.

The court also determined that JGC was not a dependent contractor, primarily due to its admission of no financial dependency on Cara and the significant other business interests of its principal, Jack Ganz.

Consequently, JGC's claims for breach of contract and common law reasonable notice were dismissed.

A minor claim regarding a projector and inventory was also dismissed due to lack of evidence.

The defendant, Recipe Unlimited Corporation, moved to strike the plaintiff's (Angus Inc.) Statement of Claim under Rule 21.01(1)(b), alleging failure to plead material facts for claims of inducing breach of contract, intentional interference with economic relations, and "misrepresentation in the marketplace." The court dismissed the motion regarding inducing breach of contract and intentional interference, finding the pleadings sufficient.

However, the claim for "misrepresentation in the marketplace" interpreted as injurious falsehood, was struck with leave to amend due to insufficient particulars of malice and intent to induce non-dealing.

The moving defendants brought a motion to compel answers to questions refused by the plaintiffs during examinations for discovery, including questions answered under Rule 34.12(2).

The court declined to make a blanket ruling deferring all Rule 34.12(2) answers to the trial judge, opting to rule on relevance for discovery purposes while leaving trial admissibility to the trial judge.

The court found that questions regarding past development applications and the plaintiffs' own redevelopment intentions were improperly refused and must be answered.

However, questions regarding the plaintiffs' current willingness to accept integration features, the substance of settlement discussions, and the plaintiffs' financial information were properly refused.

The court held that pleading the fact of settlement discussions to explain delay does not waive settlement privilege over the substance of those discussions.

The plaintiff and third party moved for contempt against the defendants for failing to remove a dock as ordered following a trial.

The defendants argued that the delay was due to the need for a Ministry of Natural Resources work permit and a pending appeal.

The court found that while the defendants improperly delayed applying for the permit while seeking a stay, they were justified in waiting for the permit before commencing demolition.

The court adjourned the contempt motion to allow time for the permit to be issued and the work to be completed, with leave to return if further delays occur.

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 moving defendants brought a motion for security for costs against the plaintiffs, a corporation and an individual, under Rule 56.01(1)(d).

The court found the defendants failed to meet their initial onus regarding the individual plaintiff.

For the corporate plaintiff, while impecuniosity was established, the court declined to order security for costs, finding it would be unjust given the merits of the plaintiff's claim, the defendants' alleged role in causing the impecuniosity, and the delay in bringing the motion.

The motion was dismissed with costs awarded to the plaintiffs.

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.