Kim G. Ferreira

This is a costs decision following an interim parenting order motion.

The court previously granted an interim parenting arrangement providing the applicant father with weekend and mid-week parenting time.

The respondent mother sought costs on a substantial indemnity basis, while the applicant sought no costs or alternatively costs in his favour.

The court found that neither party was successful on the motion, as neither proposed parenting schedule was adopted.

The court determined that success was divided due to the respondent's unreasonable and vacillating positions throughout the motion and the applicant's unsuccessful position stemming from family violence concerns involving his parents.

Accordingly, the court ordered that each party bear their own costs.

The City of Mississauga brought a motion for interim statutory and quia timet injunctions to restrain respondents from contravening the City's Nuisance Gathering By-law 0211-2023.

The motion concerned unsanctioned large-scale gatherings at Ridgeway Plaza scheduled for August 13-14 and 19, 2025, coinciding with Pakistan Independence Day and Afghanistan Independence Day celebrations.

The court granted an interim quia timet injunction against all respondents but declined to grant a statutory injunction against the condominium corporations, finding they were not engaged in ongoing by-law contraventions.

The court balanced the serious public safety risks from overcrowding against Charter rights to freedom of association and peaceful assembly.

The Ontario Securities Commission (OSC), a judgment creditor of Vadim Tsatskin, brought a motion for leave to issue a certificate of pending litigation (CPL) against a property solely owned by Tsatskin's spouse, Irene Bromberg.

The OSC alleged that Bromberg held a beneficial interest in the property in trust for Tsatskin, who had orchestrated a scheme to hide assets and avoid payment of a $5.3 million debt from fraudulent investment schemes.

Bromberg opposed, citing clean hands, delay, and prejudice.

The court granted the CPL, finding a triable issue for a resulting or constructive trust and that the equities favored the OSC, given the significant dissipation risk posed by Tsatskin's fraudulent history and the lack of substantiated prejudice from Bromberg.

The appellants appealed a summary judgment finding them liable for breach of a joint venture agreement (JVA) and challenging the calculation of expectation damages.

They also sought to introduce fresh evidence on appeal.

The Court of Appeal dismissed the motion for fresh evidence, finding it could have been adduced with reasonable diligence at the summary judgment motion and would not have affected the outcome.

The court upheld the motion judge's findings of a valid JVA and its breach, rejecting the appellants' argument of contractual frustration as the denial of severance was contemplated in the JVA.

The court also affirmed the calculation of expectation damages, noting the appellants' failure to adduce their own expert evidence or cross-examine the respondent's expert at the summary judgment stage.

The condominium corporation sought an order for a tenant to vacate a unit due to persistent and dangerous antisocial behaviour, including property damage and threats, which continued even after an interlocutory compliance order.

The court granted the application, ordering the tenant's permanent removal, citing breaches of the Condominium Act and the condominium's governing documents, and emphasizing the need to ensure resident safety and uphold court orders.

The respondent moved to convert an application into an action, arguing material facts were in dispute regarding a trust agreement for a property.

The applicant opposed, asserting no material facts were in dispute concerning the trust's existence and seeking its enforcement.

The court dismissed the motion to convert, finding sufficient clarity on the trust issue from the record.

The court declared the trust agreement valid and enforceable, ordering 70% of the net proceeds from the property sale to be released to the applicant.

A trial of an issue was ordered to determine any reimbursements owed to the respondent for property expenses incurred from purchase to sale, pursuant to the trust agreement.

The moving party brought a motion for leave to appeal the order of Merritt J. dated June 15, 2023.

The Divisional Court dismissed the motion for leave to appeal in writing.

Costs were awarded to the respondent in the fixed amount of $5,000, all inclusive.

This endorsement addresses several requests to vary existing Mareva, Norwich, Anton Piller, and Certificate of Pending Litigation (CPL) orders.

The Gendelman Defendants sought funds for living and legal expenses, continued funding for real estate projects, the lifting of a CPL on a property for sale, directions on seized evidence, and the return of their passports.

The court granted limited interim funds for living and legal expenses, adjourned the CPL issue for further discussion, directed the establishment of a protocol for seized evidence, and ordered the return of the Gendelmans' passports, emphasizing the high threshold for infringing liberty by retaining passports.

This decision addresses the issues of rent differential damages and trial costs following a partial allowance of an appeal.

The appellant argued that the respondent had not suffered damages due to a forfeited $200,000 deposit.

The court agreed, ordering no rent differential damages payable.

The parties also resolved the trial costs issue by agreeing to set aside the original $300,000 costs award and for each party to bear its own trial costs.

This appeal concerned the interpretation of a commercial lease for refrigerated premises and the calculation of damages for breach of contract.

The appellant tenant challenged the trial judge's findings on lease certainty, the ascertainability of the commencement date based on "substantial completion" and the quantum of damages.

The Court of Appeal upheld the trial judge's finding that the lease was valid and that the tenant was in breach for failing to take possession.

However, the Court found a palpable and overriding error in the trial judge's determination of the lease commencement date, ruling that "substantial completion" occurred later, on the date of CFIA registration, not an earlier date based on general occupancy readiness.

This error led to a recalculation of damages, with several categories of damages (lost rent, taxes, utilities, maintenance, administrative fees) being set aside.

The Court also set aside a commission settlement award, finding the landlord failed to prove it incurred the loss.

The appeal was allowed on the issue of damages, but otherwise dismissed, with costs awarded to the appellant.

The plaintiff moved for an order requiring the defendants to attend cross-examinations on their affidavits of documents prior to examinations for discovery, alleging the affidavits were deficient.

The court dismissed the motion, finding no persuasive evidence that additional documents existed or had been withheld.

The court held that the proper course was to proceed with the scheduled examinations for discovery and ask questions about documents there, rather than engaging in premature cross-examinations based on speculation.

The defendants moved for an order declaring the plaintiff's construction lien expired and vacating it, and dismissing the underlying action.

The court found the lien had expired due to the plaintiff's failure to advance the action within the statutory two-year period, making its dismissal mandatory under the Construction Lien Act.

Regarding the underlying contract claim, the court exercised its discretion, noting the plaintiff's inaction for over three years and failure to attend the motion.

However, the court granted the plaintiff one final opportunity to file an affidavit explaining why the action should not be dismissed, failing which the action would be dismissed.

The court also declined to dismiss the action based on outstanding costs from other proceedings, citing rules of civil procedure.

The appellant, a discharged bankrupt, appealed from an order declaring that a default judgment against him was a debt within the meaning of section 178(1)(d) of the Bankruptcy and Insolvency Act and therefore survived his discharge from bankruptcy.

The default judgment was based on the appellant's failure to comply with mortgage payment obligations.

The respondents sought to rely on extraneous evidence showing that the appellant had misappropriated trust funds paid to him by mistake.

The Court of Appeal held that the application judge erred in considering extraneous evidence not grounded in the proceedings that produced the judgment debt.

The court held that characterization of a judgment debt under section 178(1)(d) must be based on the pleadings and evidence before the court that granted the judgment, not on new evidence introduced in the bankruptcy application.

The appellant appealed an order requiring her to attend an examination in aid of execution, arguing the Master erred because she had filed for bankruptcy two days prior, triggering an automatic stay under s. 69.3(1) of the Bankruptcy and Insolvency Act.

The respondent argued the underlying default judgment declared the debt survived bankruptcy under s. 178(1).

The Divisional Court allowed the appeal, finding that s. 178(1) applies to discharge, not the automatic stay, and the Master erred in granting the order while the stay was in effect.

The applicants sought a declaration that their default judgment against the respondent survived his bankruptcy discharge under s. 178(1)(d) of the Bankruptcy and Insolvency Act.

The judgment arose after the respondent's real estate lawyer mistakenly paid him sale proceeds that were supposed to be held in trust to discharge a mortgage.

The respondent misappropriated the funds, spent them on personal items, and later declared bankruptcy without listing the applicants as creditors.

The court granted the application, finding that the respondent acted in a fiduciary capacity regarding the mistakenly received trust funds and that his misappropriation meant the debt survived his bankruptcy.

Following a successful Rule 21 motion striking the plaintiff’s amended statement of claim for failure to disclose a reasonable cause of action, the defendant sought costs of approximately $32,247.

The plaintiff argued the amount was excessive and emphasized his limited financial means, reliance on social assistance, and mental health challenges preventing stable employment.

The court reviewed the principle of reasonableness governing costs awards and the jurisprudence on whether a party’s impecuniosity may be considered.

The court concluded the claimed amount was excessive and determined that, in the circumstances, it was appropriate to consider the plaintiff’s financial hardship.

Exercising its discretion, the court declined to award any costs.

The plaintiff, who was acquitted of manslaughter in a judge-alone trial, sued the Attorney General for malicious prosecution.

The Attorney General had previously attempted to override the plaintiff's election for a judge-alone trial without providing reasons, which the criminal trial judge found to be an abuse of process.

The Attorney General moved to strike the civil claim.

The court granted the motion, finding that the plaintiff failed to plead material facts establishing that the prosecution was continued without reasonable cause or motivated by malice, noting that overriding a trial election is a non-core element of prosecutorial discretion outside the scope of malicious prosecution.

Following dismissal of the defendants’ motion for summary judgment, the court determined the appropriate costs award.

The plaintiffs sought substantial indemnity costs on the basis that the motion was unreasonable, while the defendants argued for a reduced partial indemnity award and challenged several disbursements.

The court held that the motion was not unreasonable or brought in bad faith and declined to award substantial indemnity costs under Rule 20.06.

Costs were limited to steps taken after the plaintiffs amended their claim to include fraud-related allegations, which ultimately led to their success on the motion.

The court excluded the plaintiffs’ expert fee and certain other disbursements, and fixed partial indemnity costs at $30,000 inclusive of disbursements and taxes.

The defendants brought a motion for summary judgment on their counterclaim for the balance of the purchase price under a share purchase agreement and to dismiss the plaintiffs' action.

The plaintiffs alleged fraudulent misrepresentation regarding the financial position of the purchased company and sought rescission.

The court found that there was some evidence to support the plaintiffs' claims and that issues of credibility and fact, particularly regarding when the plaintiffs became aware of the alleged fraud and whether they affirmed the contract, required a full trial.

The motion for summary judgment was dismissed.

Following a successful motion striking the statement of claim against a corporate director, the individual defendant sought costs.

The underlying motion held that directing corporate acts leading to breach of contract is insufficient to establish personal liability unless the director acted without bona fides and outside authority.

The court rejected the plaintiffs’ argument that the result was mixed because leave to amend had been granted.

Costs were awarded on a partial indemnity scale as the moving parties were the successful parties and the amount sought was reasonable.