Arkadi Bouchelev

Following the dismissal of an appeal regarding a dismissed action for delay and discharged CPLs, the respondents sought costs on a substantial indemnity basis.

The court ordered the appellant estate trustee to pay costs personally, finding that he stood to benefit from a successful appeal because his law firm was owed $150,000 in legal fees by the deceased.

The court declined to award substantial indemnity costs, finding no reprehensible conduct, and fixed partial indemnity costs at $12,200.

The appellant appealed an Associate Justice's order dismissing the action for delay and discharging certificates of pending litigation.

The underlying action involved allegations of misappropriated funds and breach of trust by the deceased plaintiff's family members.

The Divisional Court upheld the dismissal, finding no palpable and overriding errors in the Associate Justice's conclusions that the delay was inexcusable and that the loss of the plaintiff's capacity and subsequent death caused actual prejudice, making a fair trial impossible.

The appeal was dismissed.

The appellant moved for a stay pending appeal of an order directing the sale of the matrimonial home.

The appellant argued the motion judge erred by ordering the sale under the Partition Act when it had not been explicitly pleaded.

Applying the RJR-MacDonald test, the court found there was a serious issue to be tried but concluded the appellant failed to demonstrate irreparable harm, as any harm would be purely monetary.

The balance of convenience also favoured the respondent, who needed access to the home's equity.

The motion for a stay was dismissed.

Costs endorsement following the dismissal of an emergency application.

The applicant in the underlying proceeding had sought to enjoin the respondent city from exercising rights under an easement agreement, which had been confirmed by both the Superior Court and the Court of Appeal.

The court found the application constituted a collateral attack, an abuse of process, and was brought on unreasonably short notice with voluminous materials.

The city sought substantial indemnity costs of $25,150.41, which the court awarded in full, finding the amount proportionate given the unreasonable and ill-advised nature of the proceeding.

The defendants brought a motion to strike out the third party claim as disclosing no cause of action.

The third party claim named 27 different third parties, including individual shareholders and their spouses, corporate entities, the plaintiffs' bank, and the plaintiffs' lawyers.

The court found that the third party claim was based on bald allegations without material facts and failed to meet the minimal pleading standards.

The court struck the third party claim in its entirety with leave to amend and awarded costs to the third parties on a partial indemnity scale.

The appellants appealed an order made at a case conference holding them liable for tax penalties and interest resulting from their oppressive conduct.

They argued the application judge lacked authority to make a substantive order at a case conference and denied them procedural fairness.

The Divisional Court held that Rule 50.13(6) permits judges to issue directions, including substantive orders, at case conferences in appropriate circumstances to promote efficiency.

The court found no procedural unfairness, as the appellants were informed of the conference's purpose and had the opportunity to submit materials.

The appeal was allowed in part only to correct an agreed-upon calculation error.

The Respondents (Ebrahimi Parties) brought a motion under Rule 59.06 to set aside or vary three prior court orders related to the implementation of Minutes of Settlement, alleging fraud and newly discovered facts.

They also sought a declaration that the Minutes of Settlement were void.

The Applicants (PCCI) brought a cross-motion to enforce the Minutes of Settlement.

The court granted leave to admit new evidence (February 2024 Memo) and found that PCCI's actions in pursuing criminal charges and restitution in Iran, contrary to their obligations under the Minutes of Settlement, constituted a fundamental breach.

Consequently, the court set aside the relevant implementation orders and declared the Minutes of Settlement null and void, dismissing PCCI's enforcement motion.

The court also addressed costs, awarding partial indemnity costs to the Respondents.

In a family law proceeding, the applicant wife brought a motion seeking extensive financial disclosure from third-party corporate respondents, alleging her husband had an undisclosed ownership interest in them and used them to fund their lifestyle.

The corporate respondents argued they were not bound by a prior disclosure order and that the husband was merely an employee or bare trustee.

The court found the corporate respondents were not in breach of the prior order, as it only applied to the husband.

However, the court ordered the corporate respondents to produce the requested financial and corporate records, finding them highly relevant and necessary to determine the husband's true income and potential ownership interests, subject to the wife signing a Non-Disclosure Agreement.

The defendants moved to dismiss the action for delay and discharge certificates of pending litigation.

The action, commenced in 2014, arose from an alleged oral trust agreement and wrongful eviction.

The original plaintiff lost capacity and passed away during a lengthy period of inactivity, and her evidence was never preserved.

The court found the delay to be inordinate, inexcusable, and highly prejudicial, as a fair trial was no longer possible without the deceased plaintiff's direct evidence.

The motion was granted, the action was dismissed, and the certificates of pending litigation were discharged.

The appellant property owner appealed a judgment granting the City's application to enforce a Heritage Easement Agreement.

The appellant had made unauthorized alterations to his property, including cutting down trees and building a hockey rink and cabana.

The application judge found the appellant breached the Agreement and granted a permanent injunction.

On appeal, the appellant argued the application judge misinterpreted the Agreement and that the City's enforcement was motivated by bad faith.

The Court of Appeal dismissed the appeal, finding no palpable or overriding error in the application judge's decision and concluding that the City had exercised its contractual discretion in good faith.

The court considered interim costs submissions following the first stage of a bifurcated trial, which had dismissed the plaintiff's claims for declaratory relief.

The plaintiff argued that a costs award at this stage was premature, citing precedents that costs are typically awarded at the conclusion of the second stage of bifurcated proceedings.

The court agreed with the plaintiff, finding that a full appreciation of overall success and all relevant Rule 57 considerations, including Rule 49 offers, could only be made after the entire trial.

Consequently, the determination of costs was deferred to the completion of the proceedings.

The appellant valet parking operator appealed a Small Claims Court judgment finding it liable for the theft of the respondent's vehicle, which was stolen after an employee left it idling and unattended with the keys inside.

The Divisional Court upheld the trial judge's findings on negligence and agency, agreeing that the valet breached the standard of care.

However, the appeal was granted because the trial judge erred by adding a related corporate entity as a defendant on their own initiative without a motion, notice, or an opportunity for the added party to respond.

The matter was remanded for a new trial.

The moving parties brought a motion for leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal.

As no costs outlines were provided by any party, the court made no order as to costs.

The applicant sought an interest in two properties based on constructive or resulting trust, an equalization of net family property, and spousal support.

The court found the applicant lacked credibility, had unclean hands, and failed to prove any contributions to the properties.

The court determined the date of separation was in April 2013, making the equalization claim time-barred under the Family Law Act.

The spousal support claim was also dismissed.

Despite the respondents' success, no costs were awarded because they had knowingly breached prior court orders regarding the properties.

The parties brought cross-motions concerning discovery issues, including compelling answers to undertakings, under advisements, and refusals, access to accounting software, and setting a timetable for subsequent steps.

The court ordered various questions to be answered and documents produced, emphasizing relevance and proportionality under the Rules of Civil Procedure.

Access to the defendant's accounting software was granted to the plaintiff.

The court also set a timetable for further discovery and expert reports, reserving costs to the trial judge due to divided success.

The respondents sought damages arising from an interim injunction obtained by the applicant, alleging it was an excessive overreach and caused them financial harm by preventing a property sale.

The court found that proper notice was provided for the initial injunction hearing, and it did not proceed on an *ex parte* basis.

While some facts were not disclosed by the applicant, the court determined these omissions were not material to the necessity of the injunction, which was granted to maintain the status quo and protect the public interest in remediating provincially significant wetlands.

The respondents had also consented to the injunction's continuance after the initial period.

As the respondents eventually remediated the property, the merits of the underlying application for a permanent injunction were never judicially determined.

The court dismissed the respondents' motion for damages, exercising its discretion due to the respondents' inequitable conduct and the applicant's role as a public body acting in the public interest.

The plaintiff property owner sought declarations that her building was originally constructed as two semi-detached units or, alternatively, that she was entitled to four residential units based on a legal non-conforming use.

The municipality had placed a stop-work order on her renovations.

Relying on expert architectural and engineering evidence, the court found the building was originally constructed in 1906 as a single-family dwelling with internal access between areas.

The court also found no evidence that the building ever contained four residential units prior to the 1977 zoning by-laws.

The requested declarations were dismissed.

The plaintiffs brought a motion for summary judgment in a simplified procedure action for damages arising from the defendants' failure to close on a residential real estate transaction.

The plaintiffs alleged the failure to close was due to a lack of financing, while the defendants claimed it was due to deficiencies identified during the pre-delivery inspection.

The court dismissed the motion, finding that the conflicting evidence on the reason for the breach of contract, combined with the prohibition on cross-examinations under Rule 76, created a genuine issue requiring a trial.

This endorsement addresses ongoing disagreements between counsel, leading to a civil case conference.

The parties agreed to orders for the respondents to produce a realtor's complete file and for cross-examinations to proceed with documents marked as exhibits pending privilege determination.

The court admonished counsel for their uncivil and uncooperative conduct, emphasizing that civil case conferences are not for resolving civility issues and that counsel have a strict obligation to act reasonably and collaboratively.

The court ordered that no further motions or civil case conferences could be brought without leave.

The appellants, suspected of defrauding the respondents of over US $71 million, entered into a settlement agreement requiring them to return assets in exchange for the respondents discontinuing various global civil proceedings.

The appellants brought a motion to compel the respondents to also withdraw Interpol Red Notices and discontinue criminal proceedings in Iran, or alternatively to set aside the settlement.

The motion judge dismissed the motion, finding the respondents only agreed to request the withdrawal of criminal proceedings, as they had no authority to unilaterally dismiss them.

The Court of Appeal upheld the motion judge's interpretation of the settlement agreement and dismissed the appeal.