Anu Koshal

The Providius defendants brought a motion to stay the action against them for abuse of process, alleging that the plaintiffs (Evertz) failed to promptly disclose all non-financial terms of a Pierringer-type settlement agreement with the Lawo defendants.

The court found that while some initial terms were disclosed, critical "business terms" that fundamentally altered the litigation landscape, such as Lawo divesting shares in Providius, Evertz gaining an option to purchase those shares, and Evertz indemnifying Lawo against potential claims from Providius, were withheld for eight months.

The court ruled that these undisclosed terms significantly changed the adversarial relationship and potential claims, constituting an abuse of process.

Consequently, the motion to stay the action against the Providius defendants was granted.

The Court of Appeal for Ontario addressed costs and a sealing order following its dismissal of the appellant's Charter challenge to a Canada Revenue Agency (CRA) audit.

The court ordered each party to bear its own costs for both the appeal and the fresh evidence motions, citing divided success on the appeal and reasonable conduct regarding the fresh evidence motions.

Regarding the sealing order for fresh evidence, the court dismissed the appellant's request for a full sealing order, instead ordering limited redactions to the CRA final audit, consistent with a prior Superior Court order, to balance the open court principle with privacy and safety concerns, particularly given allegations of government wrongdoing.

The appellant, a Muslim charity, appealed the dismissal of its application challenging a Canadian Revenue Agency (CRA) audit process, alleging violations of its Charter rights due to discriminatory targeting and Islamophobic attitudes.

The application judge dismissed the challenge as premature, citing an insufficient factual record and the availability of administrative appeal processes under the Income Tax Act.

The Court of Appeal upheld the dismissal, affirming the court's discretion to refuse to decide a case based on a preliminary and incomplete factual record, even for Charter relief.

While disagreeing with the lower court's suggestion that the Tax Court's jurisdiction would necessarily bar a subsequent Superior Court Charter challenge, the appellate court found the prematurity finding to be correct given the ongoing administrative process.

The Plaintiffs, Evertz Technologies Inc. et al., brought a motion seeking to continue confidentiality provisions regarding settlement agreements (Pierringer Agreements) reached with the Lawo Defendants, who had settled out of the multi-party litigation.

The Providius Defendants, non-settling parties, opposed the continuation of confidentiality, arguing that the terms of the settlement agreements directly impacted them and were necessary for a new action they intended to bring against Evertz and Lawo.

The court dismissed the Plaintiffs' request, finding that Evertz failed to meet the high burden for a confidentiality order under the Sierra Club and Sherman Estate tests, as the commercial interest in confidentiality did not transcend the parties' specific interests and maintaining confidentiality would significantly prejudice the Providius Defendants' ability to plead and obtain a fair trial in their intended action.

The applicant, Muslim Association of Canada (MAC), challenged a Canada Revenue Agency (CRA) audit and its preliminary recommendation to suspend MAC's charitable status, alleging Charter violations based on discriminatory information and Islamophobia.

The court dismissed the application on grounds of prematurity, holding that judicial intervention was inappropriate before the completion of the administrative process, which included internal appeals and further rights of appeal to the Tax Court of Canada or Federal Court of Appeal.

These are supplementary reasons to an appeal previously dismissed, addressing the calculation of losses for investors.

The Court of Appeal accepted the appellants' submissions that interest should be calculated on a simple, annual basis, consistent with the "Fixed Interest Rate" clause in the Loan Participation Agreements.

Consequently, the amounts awarded to the respondents in the original judgment were varied to reflect this simple interest calculation.

This is an appeal from a summary judgment holding appellants liable on guarantees related to a syndicated mortgage.

The Court of Appeal upheld the motion judge's finding that personal and corporate guarantees were incorporated by reference into the investment agreements, despite investor unawareness and limiting clauses, based on objective contractual interpretation and trustee disclosure duties.

However, the Court varied the damages calculation, ruling that the interest rates specified in the Loan Participation Agreements (10% or 12%) should apply, not the 18% rate from the Loan Commitment.

The appeal was dismissed on liability but allowed on the interest rate calculation.

The Muslim Association of Canada (MAC) brought a motion for a sealing order concerning an Administrative Fairness Letter (AFL) and its responses, central to its application alleging systemic bias and Islamophobia in a Canada Revenue Agency (CRA) audit.

The Attorney General of Canada opposed the sealing order, proposing a more tailored redaction approach.

The court, applying the Sherman Estate test, declined the full sealing order.

While acknowledging a serious risk to the physical safety and dignity of minors and peripherally involved MAC members due to personal information, the court found that a full sealing order was not necessary.

Instead, it ordered specific redactions of names of minors and peripherally involved members, personal contact information, and financial details, emphasizing the paramount importance of open courts for public debate on government conduct, especially concerning allegations of constitutional violations.

The moving party sought the release of escrow funds following the sale of a distressed condominium project.

The dispute centered on whether the Minutes of Settlement required the property owner to pay property taxes that accrued prior to closing.

The court applied principles of commercial contractual interpretation and found that the plain language of the agreement only required the owner to continue paying operating expenses it was already paying at the time of execution.

Since property taxes had been deferred for months prior to the agreement, the owner was not obligated to pay them.

The court ordered the disputed funds released to the moving party.

The appellant, CIBC World Markets Inc., appealed a trial judgment that found it liable for trading losses incurred by the respondents, Montrose Hammond & Co. and The Raillery Fund LP, due to the negligence of Belzberg Technologies Inc.'s employees.

CIBC argued the trial judge erred in interpreting exclusion clauses in their contract and in finding Belzberg to be CIBC's apparent agent.

The Court of Appeal dismissed the appeal, upholding the trial judge's interpretation that the exclusion clauses did not apply to the circumstances and that Belzberg acted as CIBC's apparent agent, leading to the respondents' detriment.

This decision addresses the issue of costs following a professional liability claim where the plaintiffs sought over $16 million in damages but were ultimately awarded only $2,000 in nominal damages for breaches of fiduciary duty by the defendants.

The court determined that the defendants were the successful parties, having largely resisted the substantial monetary claim.

Despite findings of serious fiduciary duty breaches against the defendants (a law firm and a former in-house counsel), the court awarded costs to the defendants, but reduced the quantum by over 25% to $925,000 to reflect the seriousness of their misconduct.

In a costs decision following a professional liability trial, the court determined that the defendants were the successful parties despite findings that they breached their fiduciary duties.

The plaintiffs had sought over $16 million in damages but were only awarded $2,000 in nominal damages.

The court found the defendants' claimed costs of $1,261,235 to be reasonable, but reduced the award by 25% to reflect the court's finding of breach of fiduciary duty.

The plaintiffs were ordered to pay $925,000 in partial indemnity costs.

This endorsement followed the twelfth case management conference, addressing the progression of the action towards trial.

The court noted the completion of pleadings and examinations for discovery.

A key issue was the non-compliance of one defendant with a previous cost order of $44,000.

The plaintiffs, prioritizing trial scheduling, reserved their right to seek remedies for non-compliance.

The court issued specific directions for trial readiness, including deadlines for expert reports, filing of the Trial Record, and a certification form for setting pre-trial and trial dates.

Parties were also directed to confer on adopting a summary trial format versus an ordinary trial.

The plaintiffs sued their former law firm and former in-house counsel for professional negligence and breach of fiduciary duty arising from a commercial transaction and subsequent settlement.

The court found that the former in-house counsel breached his fiduciary duty by acting for the opposing party at a mediation, and that the law firm breached its standard of care by failing to warn the plaintiffs of this conflict.

The court also found the law firm breached its fiduciary duty by obtaining an ineffective conflict waiver.

However, the court concluded that these breaches did not cause the plaintiffs' claimed business losses, as the plaintiffs would have settled regardless and suffered no loss of chance.

The court awarded nominal damages of $2,000.

At the eleventh case management conference in this action, the plaintiffs sought an expedited trial date and an order for a summary trial under Rule 76.12.

The defendants opposed the summary trial process and sought time to complete discoveries and deliver responding expert reports.

The court declined to order a summary trial at this stage but established a timetable for the delivery of amended pleadings, completion of discoveries, and exchange of expert reports, with the next case management conference scheduled for January 2020.

This is a costs endorsement following the Court of Appeal's decision on an appeal from a Superior Court judgment.

The respondent abandoned his right to seek costs under Rule 58.06.

The appellant and amicus curiae reached an agreement on costs, with amicus curiae entitled to costs fixed at $40,000, inclusive of disbursements and all applicable taxes.

The defendants brought motions to strike the plaintiffs' claims for fraudulent and negligent misrepresentation regarding the purchase of a condominium unit, arguing that the unit was purchased by a corporation rather than the plaintiffs personally.

The court dismissed the motions on two grounds.

First, the motions were brought after an inordinate and unexplained delay, contrary to rules 2.02 and 21.02.

Second, on the merits, it was not plain and obvious that the plaintiffs' claims in their personal capacity as prospective purchasers and intended occupants would fail, nor was it plain and obvious that they lacked legal capacity to bring the claims.

An orthopaedic surgeon appealed a trial judgment finding him liable for failing to obtain informed consent before performing total wrist fusion surgery on a 73-year-old professional golfer.

The trial judge awarded $20,000 in general damages and $40,000 for lost income.

The surgeon argued the trial judge erred in applying the causation test, in finding a duty to warn about regional sympathetic dystrophy (RSD), and in misapprehending expert evidence.

The Court of Appeal dismissed all grounds of appeal, finding the trial judge properly applied the law of informed consent and causation, and that her factual findings were entitled to deference.

Following the dismissal of the plaintiffs' summary judgment motion and the granting of the defendants' summary judgment motion, the court determined the quantum of costs.

The defendants sought a combined total of approximately $150,000 in partial indemnity costs, while the plaintiffs argued for a significantly reduced amount of $60,000.

Applying the overriding principle of reasonableness, the court ordered the plaintiffs to pay $65,000 to the lead defendant and $30,000 to the remaining defendants.

The plaintiffs sought early redemption of their syndicated mortgage investments from Hi-Rise Capital Ltd. (HRC) and 54 Shepherd Road Inc., arguing HRC was contractually obligated to redeem.

HRC and 54 Shepherd Road Inc. brought cross-motions for summary judgment, asserting no such obligation existed and raising issues of standing and res judicata for one plaintiff.

The court dismissed the plaintiffs' motion, finding no unqualified right to early redemption based on a holistic interpretation of the Loan Participation Agreements (LPAs) and mandatory disclosure forms.

The court granted the defendants' cross-motions, dismissing the plaintiffs' action.