Irwin A. Duncan

The plaintiff abandoned its motion for an interlocutory injunction after nearly two years.

The defendants sought costs of the abandoned motion on a substantial indemnity scale, payable forthwith.

The court held that, absent extraordinary circumstances, costs of an abandoned injunction motion are payable forthwith.

Finding no reprehensible conduct by the plaintiff, the court awarded costs on a partial indemnity scale, fixing them at $65,908.61 for the Racer Defendants and $22,713.82 for the Standard Defendants.

The moving parties brought a motion for contempt against the responding party, a judgment debtor, for failing to answer written interrogatories.

The court previously found the responding party in contempt and adjourned sentencing to allow him to purge.

The court found that the responding party's subsequent answers were inadequate, obfuscating, and failed to provide key financial information, rejecting his claims that poor health prevented compliance.

As a penalty, the court prohibited the responding party from taking any steps in this or related litigation until the contempt is purged.

Following a trial where the plaintiff's claims for damages were entirely dismissed, the successful defendant sought partial indemnity costs.

The plaintiff argued that each party should bear its own costs.

The court found the defendant's claim for costs to be fair and reasonable, ordering the plaintiff to pay $165,630.83 inclusive of disbursements and HST.

Following dismissal of a trustee’s motion seeking directions to terminate certain condominium purchase agreements, the court addressed costs.

The purchasers sought costs against the trustee or alternatively against mortgagees who supported the trustee’s position.

The court held that although the mortgagees were not formal parties to the motion, they actively participated and had a direct financial interest in the outcome, making it appropriate to hold them responsible for costs.

The court also considered principles governing costs for self-represented litigants and limited recovery to proven disbursements where no foregone remunerative activity was demonstrated.

Costs were awarded to the purchasers and made payable jointly and severally by the mortgagees.

The court-appointed Trustee of an insolvent condominium development brought a motion for advice and directions, seeking permission to terminate pre-sale purchase agreements for buyers who had purchased two parking units, due to a shortage of parking spaces in the building.

The Trustee proposed that these buyers relinquish one parking space for a price reduction, or face termination of their agreements.

The court applied the test of balancing the equitable considerations of all stakeholders.

Finding that the mortgagees had accepted the risk of the parking shortage and that the purchasers would suffer significant financial hardship and loss of equity if their agreements were terminated, the court dismissed the Trustee's motion.

The appellants guaranteed a loan made by the respondent to a retirement residence developer.

When the developer defaulted, the respondent sued the appellants on the guarantee and obtained summary judgment.

On appeal, the appellants argued they were released from liability because the loan terms were materially altered without their consent, specifically by converting the fixed-term loan to a demand loan and entering a forbearance agreement.

The Court of Appeal allowed the appeal, finding the motion judge failed to consider the totality of the evidence regarding material alterations and applied the incorrect test for prejudice.

The summary judgment was set aside and the matter referred to trial on the defences of material alteration and laches.