Joseph W. Irving

The plaintiff was entirely successful at a five-day trial for specific performance of an oral agreement for the sale of land and sought partial indemnity costs of $164,698.14.

The defendant argued the costs were excessive due to over-lawyering and suggested $70,000.

The court reviewed the factors under Rule 57.01 and the principles from Apotex, reducing the legal fees to account for duplication but allowing time for an articling student who managed documents during the virtual trial.

The court awarded the plaintiff $100,000 in fees plus $19,120.98 in disbursements, plus HST.

The plaintiff purchaser brought an action for specific performance of an oral agreement to purchase a 32-acre property from the defendant owner.

The parties had negotiated an all-cash deal for $4.1 million, with the purchaser paying a $200,000 broker commission.

The owner later refused to close the transaction, arguing there was no binding agreement and relying on the Statute of Frauds.

The Superior Court of Justice found that a binding oral agreement was reached on all essential terms.

The court held that the doctrine of part performance applied, taking the agreement outside the Statute of Frauds, as both parties had engaged in acts unequivocally referable to the land.

Finding the property unique due to its contiguity with the purchaser's existing land, the court ordered specific performance.

The plaintiff moved to deliver a fresh, amended statement of claim.

The defendants opposed the motion, arguing it would waste years of effort and costs already invested in discovery and trial preparation.

The court allowed the amendments, noting that barring incompensable prejudice, the rules require amendments to be allowed.

Two paragraphs related to preventing mortgage enforcement were withdrawn on consent as the mortgage had already been enforced.

Costs of the motion were left in the cause as between the plaintiff and the self-represented defendant, and no costs were awarded between the plaintiff and the mortgagee defendant.

The appellant requested a reconsideration of a decision dismissing its appeal as abandoned after failing to attend case conferences.

The appellant's counsel explained that the notice of the case conference was sent to an inactive email address not provided in the appeal materials.

The respondent consented to the reconsideration.

The Tribunal found that the rules of procedural fairness were violated because the appellant did not receive proper notice, cancelled the dismissal order, and directed the parties to attend a new case conference.

This endorsement addresses the costs of Renata Mielczarek's motion for a further inspection by a Court-appointed Supervisor in an oppression remedy application.

The Applicant achieved substantial success in her motion, which sought to quantify appropriate compensation for oppression.

The court awarded costs on a substantial indemnity scale against the Respondents (excluding Birwa Rashid), finding that the underlying oppression, coupled with the respondents' obstructive conduct and contribution to delays, justified a higher scale of costs.

The court also affirmed that the self-represented applicant's claimed hourly rate and time spent were reasonable and proportional.

The applicant, Aleksandra Mielczarek, sought an expansion of a court-appointed supervisor's mandate to conduct an on-site monitoring of the respondent companies' financial activities.

This was to verify cash sales and address discrepancies in financial reporting for the purpose of valuing shares in an ongoing oppression remedy application under section 248 of the Business Corporations Act.

The respondents did not oppose the monitoring but argued the applicant should bear the costs.

The court found the additional investigation necessary and reasonable given the nature of the business (restaurant/banquet hall with high cash transactions) and prior issues with financial transparency.

The court ordered the respondents to retain the supervisor for a four-week on-site monitoring period and to bear all associated costs.

This endorsement addresses the costs of a motion brought by the Mielczarek parties to consolidate their oppression applications with an action commenced by Daria Sulaiman.

The court had previously ordered the consolidation and directed that the proceedings be tried together.

The Mielczarek parties, who were self-represented, sought costs.

The court found them entitled to costs, noting the respondents' unreasonable conduct in the motion and their efforts to segregate the actions.

The court fixed costs at $7,901.33, including fees and disbursements, after making some deductions for time spent on unrelated matters and for their dual role as witnesses and advocates.

The court emphasized that self-represented litigants are entitled to costs that reflect the objectives of a costs order and are proportional to the interests at stake.

This decision addresses the appropriate penalty for Cosimo “Cosmo” Polidoro, who was found liable for six additional counts of civil contempt for his continuing failure to comply with court orders and undertakings in two separate actions involving fraudulent real estate transactions.

Polidoro had previously been found liable for eight counts of civil contempt and sentenced to incarceration.

The court also determined the plaintiffs' entitlement to and quantum of punitive damages for the frauds perpetrated by Polidoro.

The court found Polidoro's conduct to be egregious, involving repeated lies and evasion, and imposed a six-month custodial sentence, to be served concurrently with existing intermittent sentences.

Additionally, Polidoro was ordered to pay $25,000 in punitive damages to each set of plaintiffs (Boroni and Macaes) and $95,000 in costs to the Boroni Plaintiffs.

This endorsement arises from a pre-trial conference in an action and counterclaim concerning a sub-licensing agreement.

The court, having previously dissolved an injunction and set a timetable, addressed the plaintiff's non-compliance with the established schedule.

The judge modified the timetable, ordering the plaintiff to serve and file a defence to the counterclaim and an Affidavit of Documents by October 1, 2018, and complete discoveries by December 1, 2018.

The court explicitly warned that failure to meet the October 1st deadlines would entitle the defendants to move for dismissal of the action and granting of the counterclaim due to delay.

The trial date remained unchanged, and the court noted an outstanding costs award needing prompt payment.

A further pre-trial was scheduled.

The offender, a disbarred lawyer with a prior criminal record for fraud and similar offences in the United States, was convicted of four counts of providing unlicensed immigration advice and one count of counselling misrepresentation.

The court emphasized denunciation and deterrence, noting the offender's sophisticated, profit-driven scheme that preyed on vulnerable immigrants and undermined the integrity of Canada's immigration system.

The court imposed a total sentence of 7 years imprisonment, reduced to 5 years after applying credit for pre-sentence custody, along with full restitution orders for the victims.

The respondents brought a motion requesting the motion judge recuse himself on the ground of reasonable apprehension of bias.

The motion was based on an exchange during a previous motion where the judge commented that he was 'thinking of making an order to wind up the whole operation' in response to respondents' counsel stating he was considering a motion to close part of the business.

The court dismissed the recusal motion, finding that the comments were intended to explore counsel's musings and remind him of the range of possible outcomes, and did not demonstrate bias or pre-determination of the issues.

The defendant in an action for damages arising from an allegedly improper PPSA registration moved to consolidate the action with her ongoing shareholder oppression proceedings against the plaintiff and others.

The defendant argued the PPSA registration was made to prevent a breach of a preservation order in the oppression proceedings.

The court granted the motion, finding that the proceedings arose from the same factual background and shared common issues of fact, particularly regarding the defendant's motivation, which was relevant to the plaintiff's claim for punitive damages.

The plaintiffs brought a motion to have the defendant found in contempt of court for failing to comply with multiple court orders, including orders to provide an accounting and attend judgment debtor examinations.

The defendant admitted to eight counts of civil contempt, including egregiously lying to the court about his father's death to avoid a court appearance.

The court found the defendant in contempt beyond a reasonable doubt and sentenced him to a 76-day intermittent custodial sentence, emphasizing the need for specific and general deterrence and denunciation.

The defendant was also ordered to pay $50,000 in costs.

The Landlord brought a summary judgment motion to terminate the lease of Michele’s Italian Ristorante Inc. due to multiple breaches, including non-payment of rent, failure to remedy fire code deficiencies, and unsatisfactory breakfast service.

Ristorante brought a cross-motion for relief from forfeiture and lease renewal, alleging the Landlord caused its cash flow problems.

The court granted the Landlord's motion, finding Ristorante's breaches serious and deliberate, and dismissed Ristorante's action and cross-motion, concluding there were no grounds for equitable relief from forfeiture.

The appellant appealed a committal order under the Extradition Act, arguing the committal judge erred in refusing to order particulars of the conspiracy in the authority to proceed.

The Court of Appeal dismissed the appeal, finding the authority to proceed complied with s. 15(3)(c) of the Extradition Act, which does not require the Minister of Justice to provide particulars of the corresponding Canadian offences.

The appellants appealed an order appointing a supervisor/receiver for their restaurant business and adding them as respondents in the proceeding.

The Divisional Court dismissed the appeal, finding the motion judge had a reasonable basis to appoint a supervisor to preserve and value the business, given unanswered allegations of fraud and apparent contravention of an earlier order in oppression proceedings.

The court noted the motion judge remained seized of the matter for further directions.

The applicants brought a motion seeking a finding of contempt against former directors of a religious corporation who continued to act as directors and authorized significant payments after a consent court order replaced them.

The court found the respondents knowingly acted contrary to the order by signing cheques and authorizing approximately $135,000 in corporate disbursements after they were no longer directors, including payments after an additional order expressly prohibiting removal of funds.

Applying the established three-part test for civil contempt, the court held the order was clear, the conduct deliberate, and the breach proven beyond a reasonable doubt.

The court declined to order repayment of the funds due to practical enforcement and litigation considerations but imposed penalties and costs.

In a shareholder oppression dispute involving the transfer of a restaurant business into related corporations after an earlier court order, the responding party commenced a second application while an appeal from an interlocutory order remained pending.

The moving respondents sought a stay, conversion to an action, security for costs, and substantial indemnity costs.

The court declined to grant that relief immediately and instead adjourned the motion until after the Divisional Court appeal, while imposing preservation and non-disposition terms to protect the responding party's interests.

Costs were reserved.

Following trial in a dispute over money owed from the purchase of a restaurant, the successful plaintiff sought substantial indemnity costs based on delay and aggressive cross-examination.

The court held that costs generally follow the event on a partial indemnity basis and that no special circumstances justified elevated costs.

Applying s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court assessed the matter globally, considered complexity, divided success, proportionality, and reasonable hourly rates, and fixed costs against one defendant only.

Partial indemnity costs of $22,687.16, inclusive of HST and disbursements, were awarded, together with pre-judgment interest from October 3, 2014.

The plaintiff sold a restaurant business to the defendant father, who negotiated the purchase and signed the agreement.

The father later stopped making payments, leaving a balance of $30,000.

The plaintiff sued the father, his son, and the son's corporation for the balance.

The court found that the father acted on his own behalf and did not have ostensible authority to bind his son or the corporation, dismissing the claims against them.

The father was ordered to pay the outstanding balance, subject to a $4,500 set-off for a leased dishwasher that the plaintiff had misrepresented as an owned asset.