J. Anthony Caldwell

Following the dismissal of the applicant's motion for summary judgment regarding a real estate transaction deposit, the parties were unable to settle the quantum of costs.

The respondent sought $31,015.72 on a partial indemnity basis, while the applicant argued for approximately $11,000.

The court found the time spent by the respondent's counsel reasonable but reduced the partial indemnity hourly rate from 80% to 60% of the actual rate.

Costs were fixed at $24,314.82 inclusive of fees, disbursements, and HST.

The appellant brought a motion for reconsideration to re-open his appeal, arguing that the court's reasons disclosed a misapprehension of material evidence.

The Court of Appeal dismissed the motion, finding that the appellant's reliance on Rule 59.06 was misplaced as no order had yet been taken out.

The court held that the appellant failed to demonstrate the rare circumstances required to re-open an appeal prior to the entering of an order, noting that his arguments had already been considered and rejected, and his proper recourse was his pending application for leave to appeal to the Supreme Court of Canada.

The court issued a supplementary costs endorsement regarding specific disbursements claimed by the defendants, Co-operators.

After receiving an explanatory letter from the defendants' counsel and no response from the plaintiffs, the court found the disbursements for photocopies, binding, scanning, and laser printing to be reasonable.

The plaintiffs were ordered to pay the defendants $11,406.37 for these disbursements.

The defendants sought costs following the dismissal of the plaintiffs' action.

Vancity claimed substantial indemnity costs based on a Rule 49.10 offer to settle.

The court held that Rule 49.10 does not apply where an action is dismissed, and awarded partial indemnity costs.

The court rejected the plaintiffs' arguments that the defendants' claimed hours were excessive, noting the plaintiffs failed to produce their own bill of costs for comparison.

The court fixed Vancity's fees at $200,000 and Co-operators' fees at $130,000, plus HST and allowable disbursements.

Following an appeal, the parties made submissions on costs.

On agreement, the Court of Appeal ordered the appellant to pay the respondent's costs fixed at $12,500 plus HST, and the interveners to pay the respondent's costs fixed at $7,000 plus HST.

The court declined the appellant's request that the interveners pay his costs of the appeal, noting that claim should be made in pending proceedings between them.

The appellant purchased a property from a court-appointed receiver for $6.2 million and secretly agreed to re-sell it to a third party for $9 million before closing.

To avoid land transfer tax and ensure court approval of the initial sale, the appellant and his lawyers falsely represented to the receiver that the third party was the appellant's incorporated company.

The motion judge found the appellant liable for fraudulent misrepresentation.

On appeal, the Court of Appeal upheld the finding of personal liability.

The Court also dismissed the interveners' (the appellant's former lawyers) argument that they were denied natural justice when the motion judge made adverse findings against them in their absence, holding that non-parties do not have a right to be heard in such circumstances.

The Bank appealed a trial judgment finding it liable for knowing assistance in a breach of trust after it allowed a payroll processing company continued access to electronic banking facilities despite knowing of a deficit in a trust account.

The plaintiffs cross-appealed the dismissal of their claim for knowing receipt of trust funds regarding a transfer that reduced an overdraft.

The Court of Appeal dismissed both the appeal and cross-appeal, finding the trial judge correctly applied the knowledge requirement for knowing assistance and made no palpable and overriding error in concluding the Bank had no obligation to inquire into the overdrafts.

Following a prior decision granting summary judgment on liability to the plaintiff, the court considered the issue of costs.

The plaintiff sought costs of the summary judgment motion and the proceeding to date.

The court noted that the potential range of damages remained uncertain and could significantly affect the appropriate costs disposition.

Because damages might ultimately be minimal or reflect only disgorgement of profit, the court held that the proper allocation of costs could not yet be determined.

Costs were therefore reserved pending the final determination of damages.

A secured creditor brought an action as assignee of a court‑appointed receiver alleging fraudulent misrepresentation arising from the sale of a commercial property during receivership.

The defendant purchaser had secretly arranged to resell the property for a substantially higher price and directed title to the ultimate buyer while providing transaction documents that falsely described that buyer as the purchaser under the receiver’s agreement of purchase and sale.

The defendant moved for summary judgment dismissing the claim.

The court held that although the defendant had no initial duty to disclose the flip transaction, the closing documents contained express misrepresentations and misleading statements that constituted fraudulent misrepresentation.

The motion was dismissed and liability was determined, with causation and damages to be addressed in subsequent proceedings.

The applicants sought a representation order under Rule 10.01 of the Rules of Civil Procedure permitting them to represent 416 claimants who had used payroll processing services and alleged that trust funds were misapplied by a bank.

The underlying dispute concerned funds withdrawn from employers’ accounts for payroll and tax remittances that were deposited into mixed trust accounts and partially applied to reduce the payroll processor’s indebtedness to the bank or transferred to a related entity.

The bank opposed the representation order, arguing that two separate transactions created distinct issues among claimants.

The court held that common issues existed because liability for the alleged breaches of trust would affect all claimants collectively and distribution of any recovery would be shared.

A representation order was granted and a related unopposed motion concerning distribution of funds held by a government agency was also authorized.

The appellants challenged the dismissal of claims arising from a mortgage life insurance denial after an elderly borrower died shortly after closing.

The court held there was no enforceable contract of insurance for the deceased because he did not meet the policy definition of an insured borrower, which imposed an age limit.

Assuming the lender could in some circumstances act as the insurer's agent, the evidence did not satisfy the stringent waiver test requiring full knowledge of rights and an unequivocal intention to abandon them.

The negligence claims also failed for lack of proof that alternative insurance would have been available and thus lack of damages.