K. MacDonald

The respondent sought an urgent order to authorize the sale of a property designated as a matrimonial home, and to lift this designation.

The applicant opposed the sale, arguing he was not involved in negotiations and had outstanding property claims.

The court authorized the sale, finding the applicant's withholding of consent unreasonable, particularly because the net proceeds would be held in trust, mitigating any potential prejudice to his interests.

However, the court dismissed the respondent's request to cancel the matrimonial home designation, as it could not definitively determine the property's status on the motion record.

Costs were awarded to the respondent.

This decision addresses costs and pre-judgment interest following an eight-day trial involving two separate actions.

In the first action, Sjostrom Sheet Metal Ltd.'s lien and contract claims against Geo A. Kelson Company Limited were dismissed, leading to Kelson being awarded costs.

In the second action, A. Amar and Associates Ltd. successfully proved its contract claim against Kelson, resulting in Amar being awarded judgment and costs.

The court fixed Kelson's costs against Sjostrom at $123,270.92 and Amar's costs against Kelson at $173,025.17.

Pre-judgment interest for Amar was set from the date its statement of claim was issued, emphasizing that issues are framed by pleadings.

The decision applied principles of proportionality and offers to settle, awarding substantial indemnity costs from the date of relevant offers.

Two actions arose from a construction project where Kelson subcontracted Amar for sheet metal work, and Amar sub-subcontracted Sjostrom for labour.

Sjostrom walked off the job due to non-payment by Amar.

Kelson then directly engaged Sjostrom to complete the work and issued a change order reducing Amar's contract price.

Sjostrom claimed unpaid amounts from Kelson, while Amar claimed the unpaid balance of its subcontract.

The court found that Kelson and Sjostrom formed a direct oral contract, but Sjostrom failed to prove its claimed hours and its action was dismissed.

The court also found that the change order removed the remaining labour from Amar's scope of work, and Kelson breached its subcontract with Amar by non-payment.

Amar was awarded $209,737.88.

The defendants brought a motion for security for costs against the corporate plaintiff in an action arising from a commercial lease dispute.

The plaintiff conceded it had insufficient assets to pay a costs award but argued its claims had a good chance of success and its impoverishment was caused by the defendants' conduct.

The court found the merits could not be determined on an interlocutory basis due to disputed facts and credibility issues.

Applying a holistic approach, the court ordered the plaintiff to post security for costs in the amount of $30,000 for the corporate defendants and $15,000 for the real estate agent defendant, up to and including examinations for discovery.

The plaintiffs brought a motion for an interlocutory injunction to prohibit the defendant from challenging the validity of a U.S. patent owned by the plaintiffs, relying on a 'no challenge' clause in a prior settlement agreement.

The court dismissed the motion, finding that the plaintiffs failed to establish a strong prima facie case because the defendant's U.S. subsidiary, which was challenging the patent, was not a party to the agreement.

Furthermore, the court held that the restrictive covenant was not reasonable in the public interest, as it would prevent a potentially valid defence and run counter to the public policy favouring free competition.

The defendants/plaintiffs by counterclaim (NAD) brought a motion to strike the plaintiff's (HTS) pleadings for delay and failure to produce documents, and sought an interlocutory injunction to prevent HTS from using NAD's trademarks or confusingly similar marks to sell air diffusers.

The court declined to strike HTS's pleadings, giving them one final opportunity to produce a complete Affidavit of Documents.

However, the court granted the interlocutory injunction, finding that NAD established a strong prima facie case of passing off, irreparable harm due to potential market loss and unquantifiable damages, and that the balance of convenience favoured granting the injunction despite NAD's delay in bringing the motion.

The applicant husband sought an order for the respondent wife to undergo a capacity assessment due to concerns about her mental well-being and its impact on her parenting and participation in the proceedings.

The wife admitted to a delusional disorder but argued it did not impair her judgment.

The court granted the order for a capacity assessment under both s. 105 of the Courts of Justice Act and s. 79 of the Substitute Decisions Act, finding reasonable grounds to believe her capacity was in question and relevant to material parenting issues.

The court also extended interim sole custody to the husband and dispensed with the wife's consent for medical treatment for their child, while requiring the husband to keep the wife informed and consult her.

Following a successful wrongful dismissal trial, the court determined the appropriate costs award.

The plaintiff sought substantial indemnity costs relying on settlement offers, including a global offer combining arbitration and the civil action.

The court held that the global offer did not constitute a valid Rule 49 offer because it combined two separate proceedings and did not allow the defendants to evaluate liability separately.

Costs were therefore fixed on a partial indemnity basis in the amount of $225,000 plus HST and disbursements.

The court also declined to award costs to a discontinued individual defendant after drawing a negative inference from the refusal to disclose whether those costs were indemnified under the Ontario Business Corporations Act or insurance.

The plaintiff brought an action for wrongful dismissal after being terminated for alleged cause from a senior executive position following the sale of his company’s assets to the defendant.

The employer alleged misconduct including abusive language, conflict of interest, and dishonesty regarding the employment of an individual facing fraud charges.

The court found these allegations were exaggerated or unsupported and that the employer had failed to follow progressive discipline contemplated in its employee handbook.

The dismissal was found to be without cause and motivated in part by a dispute over financial adjustments under an asset purchase agreement.

Damages were awarded pursuant to the employment contract together with punitive damages for the employer’s bad faith conduct, and the employer’s counterclaim for fiduciary breaches was dismissed.

The applicant sought a determination regarding $172,500 held in trust from the proceeds of sale of a residential property.

The respondent asserted that monies previously provided to the applicant for tuition and living expenses gave rise to a purchase money resulting trust entitling him to those proceeds.

The court reviewed the principles governing resulting trusts and the presumption of advancement, including the requirement that the claimant provide purchase money at the time of acquisition and demonstrate an intention to retain a beneficial interest.

The evidence did not establish that the respondent contributed to the purchase price or that the funds provided earlier were loans or intended to create a beneficial interest in the property.

The court concluded that no resulting trust arose and ordered that the trust funds be released to the applicant.

This decision addresses costs following earlier rulings in related applications concerning a commercial lease dispute.

The court found that the responding party had taken an erroneous legal position regarding a mediated settlement and attempted to re‑litigate claims that had already been released.

The conduct led to withheld rent payments and triggered the opposing party’s applications to secure rent payment.

Given the unreasonable litigation position and unsupported allegations of fraud-like misconduct, the court held that costs on a substantial indemnity scale were appropriate.

Costs of $130,000 inclusive were awarded to the successful party.

The landlord and tenant under a commercial lease both commenced applications regarding alleged defaults and rent calculations.

The landlord brought a motion to dismiss the tenant's application, arguing that the claims were barred by a prior settlement and mutual release executed in September 2013.

The court applied an objective approach to contractual interpretation and the doctrine of res judicata, finding that the release barred any claims existing prior to September 30, 2013.

However, the court held that the release did not bar the tenant's right to a rent reconciliation for the 2013 calendar year or ongoing rights under the lease.

The court ordered the remaining issues regarding square footage and rent quantum to proceed to trial as an action.