Kevin Richard

This is a costs endorsement following the dismissal of an application to enforce an oral agreement and the granting of an application for partition and sale of property.

The successful parties (Bruno Rosso, Nancy Rosso, and Salvatore Rosso) sought costs awards.

The court awarded costs on a substantial indemnity scale to Bruno and Nancy, and on a partial indemnity scale to Salvatore.

The court considered factors including the complete success of the parties, the complexity of the issues, the proportionality of costs to the property value, the reasonableness of counsel fees and time spent, and the conduct of the unsuccessful party during litigation.

The plaintiff discontinued a proposed class action against the defendant, a discount brokerage firm, after the certification motion was adjourned.

The defendant sought costs for defending itself against the certification motion.

The plaintiff argued the costs were excessive and should be apportioned among the multiple defendants originally sued.

The court awarded costs to the defendant on a partial indemnity basis, reduced by approximately 25% to account for access to justice concerns in class action litigation.

The court considered two competing applications between brothers who jointly owned a triplex property.

Domenic Rosso sought to enforce an alleged oral agreement for the purchase of Bruno Rosso’s one-third interest in the property, while Bruno Rosso sought partition and sale of the property.

The court found that there was no enforceable oral contract due to lack of agreement on essential terms, and that even if there had been, it would have been unenforceable under the Statute of Frauds and not saved by part performance.

The court granted Bruno’s application for partition and sale, and ordered an accounting.

The case involved a dispute between brothers Domenic, Salvatore, and Bruno Rosso, and their wives, concerning minutes of settlement.

Bruno moved to enforce the minutes, alleging Domenic breached them.

Domenic cross-moved to set aside the minutes, claiming duress, fraudulent misrepresentation, or improvidence, and also arguing they were null and void under a specific contractual clause.

The court found that Domenic and Carmelina (Domenic's wife and a "Settling Party") validly exercised their contractual right under the minutes of settlement to declare them null and void due to an uncured default.

The court dismissed Bruno's motion to enforce and granted Domenic's cross-motion to set aside the minutes of settlement on this contractual basis, rejecting Domenic's other claims of duress, misrepresentation, and improvidence due to lack of credible evidence.

The Court of Appeal for Ontario dismissed an appeal by DeFi Technologies Inc. against an order awarding Zach Justein and Joseph Weinberg 750,000 share options.

The options were granted by a unanimous board resolution, but later cancelled by management on the grounds that the recipients were not "consultants" under the stock option plan.

The application judge found that the board had the authority to determine eligibility and that the cancellation constituted a breach of contract and an oppression remedy.

The Court of Appeal affirmed that the board's resolution made the respondents eligible, their reasonable expectations were defeated, and the damages calculation was appropriate, noting that the respondents were not required to attempt to exercise options after the agreement's repudiation.

The applicants sought damages for the respondent's refusal to honour agreements granting them 750,000 stock options.

The respondent argued the applicants did not meet the eligibility requirements of its stock option plan.

The court found that the respondent's board of directors had validly approved the option grants and that the respondent's subsequent cancellation of the options defeated the applicants' reasonable expectations, constituting oppression under the Business Corporations Act.

The court awarded damages based on the value of the options, but declined to award punitive damages.

This decision concerns the costs arising from the dismissal of the plaintiff's motion for leave to commence a secondary market securities class action and to certify the action.

The defendants sought substantial indemnity costs, while the plaintiff argued for partial indemnity and a discount due to the alleged novel and public interest nature of the litigation.

The court awarded partial indemnity costs of $693,805.39, finding no basis for substantial indemnity as there was no reprehensible conduct or unproven fraud allegations.

The court also rejected the argument for a discount under s. 31(1) of the Class Proceedings Act, concluding that the issues were not novel or of broad public interest, particularly as they had been previously litigated.

A minor deduction was made for online research disbursements.

The applicants brought a motion to compel the respondent to answer questions refused on examination for discovery and to enforce a prior costs award.

The respondent paid the costs award two days before the hearing, rendering the enforcement aspect moot.

The court ordered the respondent to answer 15 of the refused questions and upheld 11 refusals, directing a follow-up examination by videoconference.

The court awarded the applicants full indemnity costs thrown away for the enforcement motion and partial indemnity costs for the divided success on the refusals motion, totaling $12,942.36.

This appeal addresses the role of "public correction" in secondary market misrepresentation class actions under s. 138.3 of the Securities Act.

The appellant sought leave to pursue a statutory remedy, which the motion judge denied by requiring a discrete and identifiable public correction that explicitly revealed the misrepresentation.

The Court of Appeal, following its own decision in *Barrick OCA*, found that the motion judge applied an unduly onerous standard for public correction.

The Court clarified that public correction does not require "facial symmetry" with the misrepresentation and must be understood in context by the secondary market.

The appeal was allowed, and the leave motion remitted for redetermination.

Following a summary judgment with divided success, the parties sought a determination on interest and costs.

The court held that Marquest was entitled to the contractual interest rate of 15 percent on the promissory note, running until the date funds were received.

Regarding costs, the court balanced Marquest's contractual right to substantial indemnity costs for enforcing the note against Stone's substantial success on its more complex counterclaim.

The court awarded Stone $30,000 in partial indemnity costs, net of any costs Marquest was entitled to.

Marquest Asset Management Inc. sued Stone Investment Group Ltd. for unpaid amounts under a promissory note.

Stone counterclaimed for breach of a purchase agreement, seeking set-off.

Marquest moved for summary judgment on its claim and dismissal of Stone's counterclaim.

Stone opposed and sought summary judgment on its counterclaim.

The court granted Stone summary judgment on two issues of its counterclaim (Cooltech Debenture and nominal damages for TFSA filings) and dismissed a third (Withholding Taxes).

The court found Marquest breached the purchase agreement regarding the Cooltech Debenture and TFSA filings.

As the amount awarded to Stone on its counterclaim was less than the amount owed to Marquest on the note, the court granted Marquest summary judgment for the net amount.

The court also found Stone had a proper claim for equitable set-off.

The plaintiff brought a motion to compel the production of data, correspondence, and reports from two environmental consulting firms retained by the defendants.

The defendants claimed litigation privilege over the documents.

The court found that litigation was not the dominant purpose for the creation of the documents, as the parties were still working cooperatively to solve an environmental remediation issue at the time.

Furthermore, the court held that even if privilege existed, the defendants implicitly waived it by directing the plaintiff to share information directly with the consultants without advising that the process was privileged, and by claiming the consultants' costs in their counterclaim.

The motion for production was granted.

The applicants, former owners of CryptoGlobal, sought the appointment of an independent inspector to investigate HyperBlock Inc. following an amalgamation.

They alleged oppressive conduct, conflict of interest by HyperBlock's CEO (Sean Walsh) in the acquisition of Project Spokane assets, overvaluation, and a significant post-closing decline in HyperBlock's value not fully explained by market forces.

The court found a prima facie case of oppression and an "index of suspicion" warranting an investigation, citing issues like cash flow irregularities, resignations of financial officers, lack of transparency, and potential conflicts of interest among management and directors.

The court ordered the appointment of BDO Canada Limited as an inspector.

The defendants brought a motion to stay the proceeding, arguing that Ontario courts lacked jurisdiction or, alternatively, that Ontario was forum non conveniens due to a forum selection clause designating England.

The court found jurisdiction simpliciter in Ontario based on contract formation principles but ultimately granted a stay on the basis of forum non conveniens, giving effect to the forum selection clause.

The appellant, an investment advisor, appealed a trial decision dismissing his claim for additional compensation under a letter agreement.

The trial judge found the agreement ambiguous regarding its application to Capital Markets transactions and relied on the parties' subsequent conduct to conclude it did not apply.

The Court of Appeal dismissed the appeal, holding that while subsequent conduct is not part of the factual matrix, it is admissible to resolve ambiguity.

The trial judge made no extricable error of law in finding ambiguity and properly weighed the appellant's subsequent conduct, which was overwhelmingly consistent with the respondent's interpretation.

The plaintiff sued for unpaid invoices related to an environmental remediation project in Ontario.

The defendants moved to stay or dismiss the action, arguing lack of jurisdiction and relying on a forum selection clause (FSC) designating California courts.

The court found that while it had jurisdiction, the FSC was not a term of the contract for the majority of the unpaid invoices, its language was unclear regarding California as an exclusive forum, and there was insufficient evidence that the purchase orders were issued in California.

The defendants' motion was dismissed.

Following an earlier decision requiring certain respondents to purchase the applicant’s shares in a corporation for $4.25 million, the court determined the appropriate costs award.

The applicant had served a Rule 49 offer to settle that was lower than the judgment amount and sought substantial indemnity costs from the date of the offer.

The court considered the extensive litigation history, overlapping issues involving two related corporate interests, and the respondents’ conduct that complicated document production and valuation.

Applying the Rule 57.01 factors and recognizing the respondents’ obstructive conduct, the court fixed substantial indemnity costs for fees and taxes and allowed claimed disbursements and expert valuation expenses in full.

Following dismissal of an employee’s action alleging multiple breaches of an employment agreement, the employer sought costs of the action.

The employer relied on earlier offers to settle and argued it should receive substantial indemnity costs after the first refused offer.

The court held that elevated costs outside Rule 49.10 require reprehensible or egregious conduct by the opposing party.

Finding no such conduct and noting the action was hard fought but not frivolous, the court declined substantial indemnity costs and instead awarded a reduced amount under Rule 57.01.

Following dismissal of a proposed securities class action leave motion under s. 138.8 of the Securities Act and certification under the Class Proceedings Act, the court determined the appropriate costs award.

The successful defendants sought nearly $900,000 based on partial recovery of actual legal fees, while the plaintiff argued for a substantially reduced award grounded in access-to-justice concerns.

The court held that the costs protocol developed for certification motions does not apply to leave motions, which function as a robust merits-based screening mechanism and often involve extensive evidentiary records.

Applying the hourly rate grid and Rule 57.01 factors, the court reduced certain disbursements but rejected the plaintiff’s lower estimate.

The court fixed all-inclusive costs at $500,000 payable to the defendants.

The applicant brought an oppression application against her father and brother, alleging they conducted the family business in an oppressive manner.

The applicant was secretly removed as a director of the corporation, denied financial information, and pressured to sell her shares at a dictated price.

The court found the respondents' conduct was abusive, coercive, and unfairly disregarded the applicant's reasonable expectations as a shareholder and director.

The court ordered the respondents to purchase the applicant's shares at a fair value of $4.25 million, declining to apply a minority discount.