Kenneth Prehogan

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.

The plaintiff mortgagor brought an action against the defendant mortgagees for the improvident sale of a 125-acre development property under a power of sale.

The property was sold for $12.5 million.

The court found that the defendants failed to take reasonable precautions to obtain the fair market value of the property, having listed it at an inordinately low price, failed to adequately market it, unreasonably restricted the field of potential buyers, and acted with undue haste.

After reviewing competing appraisal evidence, the court determined the fair market value of the property at the time of sale was $16 million.

The court awarded the plaintiff $3.5 million in damages, representing the difference between the fair market value and the sale price.

The appellant applied for a declaration that the City of Toronto was deemed to have consented to the demolition of three heritage buildings because it failed to decide the application within the 90-day period under s. 34(2) of the Ontario Heritage Act.

The application judge dismissed the application, finding the parties had agreed to extend the time period.

The Court of Appeal dismissed the appeal, holding that the application judge's conclusion was reasonable and entitled to deference, as the appellant's communications indicated a willingness to wait for the City's decision.

The responding party sought costs of $52,337.23 on a partial indemnity basis following the dismissal of the moving party's motions for leave to appeal a Mareva injunction and to adduce fresh evidence.

The moving party argued for costs in the range of $15,000.

The court noted the complexity of the motions but observed that the responding party failed to provide detailed docket entries.

Applying the principle of reasonable expectations, the court fixed the costs at $17,551.30 plus GST.

The moving party sought leave to appeal an order granting a Mareva injunction and brought a preliminary motion to adduce fresh evidence on the leave application.

The Divisional Court held that it lacked jurisdiction under s. 134(4)(b) of the Courts of Justice Act to admit fresh evidence on an application for leave to appeal.

In any event, the proposed evidence did not meet the Palmer test because it could have been adduced before the motion judge became functus officio.

The court also denied leave to appeal, finding no conflicting decisions and no issue of general importance warranting appellate review.

The appellants appealed an order confirming a deputy registrar's findings regarding the accounting of clinic funds, including OHIP billings and bank loans.

The Court of Appeal dismissed the appeal, finding that the deputy registrar's conclusions were supported by the evidence and authorized by the clarification order.

The appellant appealed a trial judgment dismissing its claim for loss of opportunity to develop property.

The Court of Appeal endorsed the trial judge's reasons, finding no basis to consider the loss of opportunity a reality, and dismissed the appeal with costs.

The appellant developer appealed a summary judgment dismissing its claim for specific performance of an alleged agreement to purchase development lands for over $45 million.

The appellant argued that the respondents' negotiators had actual or ostensible authority to conclude the agreement.

The Court of Appeal dismissed the appeal, finding no evidence of actual authority and no representations by the principals to support a finding of ostensible authority.

In an addendum to judgment regarding costs of an appeal, the respondents sought costs totaling $132,145.72.

The appellants opposed, seeking a stay of costs for one insolvent respondent, arguing for the application of the pre-2002 party and party costs regime, and challenging the hourly rates of junior counsel.

The Court of Appeal dismissed the stay request, held that the new costs grid under O. Reg. 284/01 applies retrospectively to services rendered before January 1, 2002, and reduced the hourly rates for certain junior counsel.

Total costs of $122,998.02 were awarded to the respondents on a partial indemnity basis.

The appellants, holders of debentures issued by BCED, appealed a trial judgment finding that a series of corporate reorganizations and asset transfers did not breach a successor obligor clause in the trust indenture.

The clause prohibited BCED from transferring 'all or substantially all' of its assets unless the transferee assumed the debenture debt.

The Court of Appeal dismissed the appeal, holding that the asset transfers did not meet either the quantitative or qualitative threshold to constitute 'all or substantially all' of BCED's assets.

The Court also found that a subsequent guarantee and foreclosure did not constitute a prohibited 'transaction' under the trust indenture, as the indenture expressly permitted BCED to incur and secure senior indebtedness.