Graydon Sheppard

The plaintiff, as estate trustee, moved for summary judgment against defendant Emanuel Cabral for damages arising from his failure to close an agreement of purchase and sale for the estate's property.

Defendant Sherif Behiry was noted in default.

The court found that the defendant Cabral breached the agreement and failed to demonstrate that the plaintiff did not reasonably mitigate her damages, despite expert opinion suggesting a longer relisting period.

The court granted summary judgment to the plaintiff against Cabral and default judgment against Behiry for the difference in sale price and associated expenses.

Cabral's counterclaim was dismissed by consent.

Following a successful application involving a breach of fiduciary duty and disputed signatures, the applicant sought costs on a substantial indemnity basis.

The court declined to award substantial indemnity costs, finding the respondents' conduct was not reprehensible, scandalous, or outrageous.

The court awarded costs to the applicant on a partial indemnity basis, fixing the quantum at $87,100 inclusive of HST and disbursements, after making minor deductions for unissued claims and certain disbursements.

This was a costs ruling following dismissal on summary judgment of the plaintiffs' action against a bank as statute-barred in a mortgage power of sale dispute.

The court rejected the bank's argument that the mortgage terms contractually entitled it to solicitor-client costs for defending the action, and also declined to award full indemnity costs based on the pleadings' serious allegations.

A time-limited offer to settle did not trigger the automatic consequences of Rule 49.10, but remained a relevant factor under Rules 57.01 and 49.13.

Costs were fixed on a partial indemnity basis up to May 21, 2014 and on a substantial indemnity basis thereafter, in the total amount of $33,279.28.

The appellant appealed a summary judgment decision of the Superior Court of Justice.

The Court of Appeal found that it was a proper case for summary judgment and agreed with the reasons of the motion judge.

The appeal was dismissed with costs awarded to the respondents.

In a dispute arising from a failed real estate transaction for the purchase and development of condominium property, the plaintiff sought leave to amend its statement of claim to increase damages and to consolidate its action with a mirror action commenced by the defendant.

The defendant opposed and brought a motion to compel examinations of the plaintiff’s non-party lawyers, arguing solicitor-client privilege had been waived.

The court granted leave to amend and ordered consolidation of the mirror actions, finding no prejudice and that procedural efficiency favoured a single proceeding.

The motion to examine the lawyers was dismissed because reasonable efforts had not been made to obtain the information through other means and the proposed examination sought legal opinions rather than factual evidence.

The court further held that the pleadings did not place solicitor-client advice in issue or amount to waiver of privilege.

The defendants brought a motion for summary judgment seeking dismissal of a defamation action arising from allegations that the plaintiff poisoned their mother.

The statement of claim alleged the defendants reported the allegation to police, but the evidence showed that one defendant communicated the allegation to the other, who contacted the coroner, and the coroner then contacted police.

The court held the pleadings failed to allege the actual publication or any republication chain reflected in the evidence.

The court also found that contacting the coroner about a potential criminal act was subject to qualified privilege.

As the plaintiff could not prove the case as pleaded and amendment would not render the claim viable, summary judgment was granted dismissing the action.

Following a previous costs endorsement, the court considered the written costs submissions of the corporate intervener, which had been inadvertently overlooked.

The court fixed the corporate intervener's costs at $6,000 and ordered the responding party (applicant in the main proceeding) to pay them.

Following the quashing of an application for judicial review on the basis that it was an abuse of process, the successful respondents and interveners sought costs.

The court awarded costs to the respondents, noting the awards should reflect the finding of abuse of process.

The court also awarded partial indemnity costs to the individual interveners, who had been added as parties with a direct interest in the proceedings.

Total costs of $30,350 were ordered against the applicant.

Following a trial decision, the court determined the appropriate quantum of costs payable to the successful plaintiff.

The plaintiff sought $74,612.14 all-inclusive, relying in part on an offer to settle that triggered substantial indemnity costs from the date of the offer.

One defendant conceded the entitlement to substantial indemnity costs from that date, while another provided no submissions on costs and a corporate defendant did not participate in the trial.

The court considered the conduct of the participating defendants, including late concessions that prolonged the trial and required unnecessary witnesses.

Balancing the relevant considerations, the court fixed the plaintiff’s costs at $65,000 all-inclusive against the individual defendants.

The plaintiff sought recovery of remediation costs paid to repair structural defects in a newly constructed home after the builder failed to fulfill warranty obligations.

The corporate builder and its principals had executed indemnification agreements requiring reimbursement of losses arising from warranty claims.

The defendants argued the claim was barred by the two‑year limitation period under the Limitations Act, 2002 and that the indemnity cap for the individual defendants was $20,000 rather than $200,000.

The court held that limitation periods for indemnity claims run from the date the indemnifier actually pays out losses, not from when the underlying defect arises.

The action was therefore timely because the payments occurred in 2006 within two years of the claim issued in 2007.

The court further held the contract imposed an aggregate $200,000 indemnity cap for the individual defendants, not a per‑home limit.

Following an earlier endorsement striking the plaintiffs’ statement of claim as statute‑barred under the Limitations Act, the court addressed the appropriate quantum of costs.

The defendant bank sought costs after successfully obtaining dismissal of the claim, which originally sought $6 million in damages.

The court considered the discretion under s.131(1) of the Courts of Justice Act and the factors in Rule 57.01 of the Rules of Civil Procedure, including proportionality, the complexity of the issues, and the conduct of the parties.

Although the plaintiffs had engaged in some procedural recalcitrance and prior costs had already been ordered against them, the court noted that the litigation ultimately narrowed to a single issue and involved limited complexity.

Costs of $16,000 inclusive of HST, plus disbursements of $1,084.24, were awarded to the defendant.

The appellants appealed a trial judgment dismissing their claim against the respondent.

The trial judge found that the respondent had discussed his concerns with the appellant regarding a third party taking title to a property without being bound by a joint venture agreement.

The trial judge also found that the appellant instructed the respondent to proceed with the transfer regardless.

The Court of Appeal held that these findings of fact were supported by the evidence and did not constitute palpable and overriding errors.

The appeal was dismissed.

Former dental partners disputed the validity of a written partnership agreement and the accounting following dissolution of their practice.

The plaintiffs argued that an oral agreement replaced the written termination provisions and that the written profit‑sharing formula was incorrect.

The court held the detailed written 2004 partnership agreement was clear and binding and rejected the alleged oral termination agreement as an incomplete “contract to make a contract.” The court ordered an accounting under the written agreement and found the defendant had been underpaid partnership profits due to improper treatment of an associate’s expense.

The defendant was awarded $119,056 and the limitation period did not bar the claim because discoverability arose only after the accounting issue was uncovered.

The applicant sought a vesting order under the Trustee Act transferring full title to partnership property held in trust by the respondent.

The court determined that the parties had formed an oral real estate partnership in 1987 to acquire, maintain, and sell investment properties and that the partnership continued despite discussions of dissolution.

The respondent was entitled to an accounting of partnership assets and reimbursement for excess contributions before any transfer of property could occur.

The court rejected limitation arguments, holding that equitable principles and the doctrine of laches governed the dispute.

Issues relating to accounting and potential transfer of the disputed property were reserved for further submissions.

The applicant commenced an application for judicial review regarding a lease renewal decision by The Niagara Parks Commission.

The respondent brought a motion to quash the application.

Before a decision was rendered, the Ontario Government opened the lease process to competitive bidding, prompting the applicant to file a Notice of Abandonment.

The respondent sought costs for the abandoned application.

The court found the substantive issues moot and exercised its discretion under Rule 38.08(3) to deny costs, as the abandonment resulted from a government decision outside the applicant's control that rendered the application unnecessary.

The appellants appealed the trial judge's assessment of damages and dismissal of claims regarding a fraudulent kick-back scheme perpetrated by two officers of the appellant company and its suppliers.

The Court of Appeal found the trial judge erred in deducting advances made by the officers from the damages awarded for secret commissions, as the officers had no authority to borrow money from the bank to repay themselves.

The damages against the officers and their company were increased to $73,641.45.

The court also set aside a counterclaim judgment in favour of a supplier, finding he had already been fully paid.

The remainder of the appeal, including claims against the bank for unauthorized withdrawals and altered documents, and claims for punitive damages, was dismissed.

The employer alleged that the grievor breached a Memorandum of Settlement resolving his wrongful dismissal grievance by launching a civil action for defamation and conspiracy against two former colleagues.

The settlement included a broad release of all claims regarding his past employment, a confidentiality clause, and a non-disparagement clause.

The Public Service Grievance Board found that the civil suit breached the settlement, as it attempted to litigate matters related to his past employment that were fully and finally resolved by the agreement.

The Board issued a declaration of breach and remained seized of the remedial aspects.

The employer alleged that the grievor breached a Memorandum of Settlement resolving his dismissal grievance by launching a civil action against two civil servants.

The employer requested that the Public Service Grievance Board exercise its retained jurisdiction to hear the breach claim.

The grievor argued the Board should decline jurisdiction in deference to the concurrent jurisdiction of the courts over the civil action.

The Vice-Chair held that the Board had jurisdiction pursuant to the settlement agreement and declined to defer to the court, noting the employer was not yet a party to the civil action and the remedy for the alleged breach was not before the court.

The appellants appealed a summary judgment decision, arguing that the receiver conducted an improvident sale of hydrofoil vessels.

The Court of Appeal dismissed the appeal, finding that the appellants presented no substantial evidence to support their defence and merely criticized the receiver's marketing efforts.

The court held that summary judgment was appropriate as there were no facts in dispute and the issue of an improvident sale was a question of law.

The appellant appealed the dismissal of his motion to set aside a default judgment.

He argued that his delay in responding to the statement of claim was adequately explained and that he had a triable defence of economic duress regarding a collection agreement, claiming the respondent barricaded his moving equipment.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's rejection of the delay explanation and concluding that the facts did not establish a triable defence of economic duress, as the appellant had other practical alternatives and waited over a year to raise concerns.