Kenneth William McKenzie

The plaintiffs, Whitesand First Nation and a holding company, sought to maintain a Mareva injunction freezing assets of the defendants up to $17.55 million CDN.

The defendants had received grant funds from the plaintiffs to secure financing for a biomass power plant project but failed to obtain financing by the contractual deadline.

The defendants moved to set aside the Mareva injunction, arguing insufficient disclosure on the ex parte motion, and sought security for costs and a stay pending alternative dispute resolution.

The court found the plaintiffs made full and fair disclosure, met the test for a Mareva injunction, and dismissed all of the defendants' motions.

The court found the underlying agreement was null and void as the defendants failed to secure financing by the deadline, and therefore the ADR provisions no longer bound the parties.

The Plaintiff sought substantial indemnity costs against the Defendants Zhou and Aguazion Inc. following two successful motions: a Mareva injunction and a variation of that order due to Zhou's fraud and misrepresentation.

The court awarded partial indemnity costs for the first motion, payable in the cause, and substantial indemnity costs for the second motion, fixed at $52,415.07, payable forthwith or from the Alternative Payment of Security Option (APSO) fund.

The judge found Zhou's conduct, including perjury and misleading evidence, warranted serious costs consequences, justifying substantial indemnity for the second motion.

The defendant, Mr. Corriveau, successfully obtained summary judgment dismissing the plaintiffs' claim and on his counterclaim.

This endorsement addresses the costs of the motion and the action.

Mr. Corriveau sought costs on a partial indemnity basis up to May 5, 2017, and substantial indemnity thereafter, totaling $111,140.18.

The plaintiffs, Custom Home Interiors Inc. and Obvious Advantage Inc., acknowledged Mr. Corriveau's entitlement to partial indemnity costs but disputed the quantum, arguing the proceedings were uneconomical.

The court awarded Mr. Corriveau partial indemnity costs of $70,000, inclusive of HST and disbursements, finding his offer to settle did not warrant substantial indemnity costs due to its limited acceptance window and timing.

The court also reduced claimed fees for excessive time on the summary judgment motion and disallowed fees related to a Law Society complaint.

The plaintiff sued the defendant for breach of contract and negligence regarding the installation of a video wall system, claiming the system never worked.

The defendant counterclaimed for the unpaid balance of the contract and extra charges, and moved for summary judgment to dismiss the plaintiff's claim and grant his counterclaim.

The court first granted a misnomer motion to correct the plaintiff's corporate names.

On the merits, the court found no genuine issue requiring a trial, concluding that the defendant completed the work, the system functioned properly, and the delays were not the defendant's fault.

The court dismissed the plaintiff's claim and granted summary judgment on the defendant's counterclaim for the unpaid balance and extras.

The appellant appealed a motion judge's decision dismissing its motion to strike out and declare void Personal Property Security Act registrations filed by the respondent.

The appellant argued that without a signed security agreement, the PPSA registrations were invalid.

The Court of Appeal determined that it lacked jurisdiction to hear the appeal because the motion judge's order was interlocutory, not final.

The court held that the order did not finally dispose of the real matter in dispute between the parties, which concerned the equipment's deficiencies and the parties' respective obligations, rather than the validity of the security interest itself.

The appeal was quashed with costs, and the appellant was directed to pursue an appeal to the Divisional Court.

Following a decision on five motions where success was evenly divided, the parties made written submissions on costs.

The court reviewed the submissions and the settlement correspondence between counsel, which did not constitute formal Rule 49 offers.

Finding that success remained evenly divided and both parties made good faith attempts to resolve the issues, the court declined to award costs to either party.

The parties brought multiple interlocutory motions in a construction dispute regarding the supply of equipment.

The court dismissed the plaintiff's motion to discharge a PPSA registration, finding a valid security agreement existed.

The court dismissed the defendant's motion for security for costs, finding insufficient evidence of impecuniosity.

The court granted the defendant's motion for particulars, as the statement of claim contained bare allegations.

The court partially granted the plaintiff's motion to compel answers to refusals from an examination.

The motion to transfer venue was deferred to the Regional Senior Judge.

The appellant appealed a partial summary judgment on a promissory note related to the sale of a business.

The motion judge had found the appellant in default, struck the Statement of Defence, and ordered a trial of an issue to determine the net amount owing, to be heard with a related injunction application regarding the seizure and sale of assets.

The Court of Appeal held that the appellant was not precluded from arguing that the seizure and sale were unlawful.

The Court found that striking the Statement of Defence was inconsistent with ordering a trial of an issue.

The appeal was allowed in part to reinstate the Statement of Defence and substitute an order finding the appellant in default.

Following a successful summary judgment motion on liability under a promissory note, the court determined costs of the motion.

The moving parties sought full indemnity costs based on alleged misconduct by the opposing party.

The court found that both counsel had engaged in problematic conduct during the motion and that any misconduct was mutual.

Applying the principle that costs generally follow the event absent exceptional circumstances, the court awarded partial indemnity costs to the successful moving parties.

Costs were fixed at $6,000 inclusive of HST and disbursements.

The plaintiffs moved for summary judgment to enforce a promissory note executed in connection with an asset purchase agreement for a recycling business.

The defendant admitted signing the note and acknowledged the outstanding balance but argued that the plaintiffs had waived default, improperly seized collateral, and failed to account for the sale of secured assets.

The court held that no clear waiver or agreement to forbear from enforcing the note was established and that the defendant failed to produce evidence supporting allegations of improper seizure under the Personal Property Security Act.

However, due to ongoing litigation regarding the seizure and disposition of secured assets, the precise amount owing under the note remained uncertain.

Summary judgment on liability was granted, the defence was struck, and the quantum of the debt was ordered to be determined at trial together with the related injunction proceedings.

The mother sought leave to appeal an order severing the father's bankruptcy file from the outstanding family law claims.

The mother argued that a previous case management order had consolidated the matters and that the trial judge erred in severing them.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decision and concluding that the trial judge had the authority to manage the trial process.

The court emphasized that further delay was undesirable.

The moving party brought a motion for an extension of time to perfect its appeal from an order dismissing its motion to set aside a noting of default.

The responding party had previously obtained default judgments discharging mortgages and awarding possession of the property.

The Court of Appeal granted the extension of time, noting that the moving party had formed a timely intention to appeal and the deficiencies in its initial filing were minor.

The plaintiffs initially succeeded on a motion to bifurcate a class proceeding trial.

The defendants obtained leave to appeal that order.

Subsequently, the plaintiffs abandoned the appeal, proposing that no costs be awarded.

The defendants rejected this proposal and brought a motion to fix costs for the initial motion, the leave to appeal motion, the abandoned appeal, and the current motion.

The court granted the defendants' motion, awarding them costs on a partial indemnity basis fixed at $17,971.75.

The appellant broadcaster sought injunctive relief against parties assisting Canadian residents to subscribe to and decode U.S. direct-to-home satellite programming.

The appeal turned on whether s. 9(1)(c) of the Radiocommunication Act imposed a blanket prohibition on decoding encrypted subscription programming signals unless authorized by a lawful distributor in Canada, or only prohibited decoding of signals from licensed Canadian distributors.

Applying the modern contextual approach to statutory interpretation, the Court held the provision unambiguously creates an absolute prohibition with a limited exception and aligns with the broader broadcasting and copyright regime.

The Court refused to answer the stated Charter questions because the record did not support constitutional adjudication.

The appellants challenged findings that they engaged in fraudulent conveyances intended to permit the appellant husband to seek termination of child and spousal support obligations.

The Court of Appeal held that the trial judge's findings of fact and credibility were amply supported by the evidence, including suspicious transfers of shares and property for inadequate consideration and in secrecy.

The court also upheld the tracing of proceeds to a residential property and the conclusion that support obligations would not be honoured.

The appeal, including the challenge to the costs award, was dismissed with costs.