Lia Zweig Boritz

The applicant, a hedge fund shareholder, brought an urgent application under section 248 of the OBCA seeking to adjourn the respondent corporation's annual general and special meeting of shareholders and to reset the record date.

The applicant alleged the notice was non-compliant with the OBCA and that the board acted oppressively by setting a timeline that effectively prevented shareholders from nominating an alternative slate of directors.

The court found that the respondent was not an "offering corporation" and had met all statutory notice requirements under sections 95(4) and 96(1) of the OBCA.

The court held that the notice procedures followed past practice and did not breach the reasonable expectations of shareholders as established in BCE Inc. v. 1976 Debentureholders.

The application was dismissed with costs of $75,000 to the respondent.

The appellant, a property developer, purchased contaminated land in 1990 and commenced an action in January 2004 seeking damages for soil contamination.

The motion judge granted summary judgment, finding the action was statute-barred because the appellant had actual knowledge of the contamination by April 1991, triggering a six-year limitation period that had expired long before the action was commenced.

The appellant appealed, arguing the motion judge erred in principle, made palpable and overriding errors of fact, and failed to consider whether its continuing nuisance claim was statute-barred.

The Court of Appeal dismissed the appeal, holding that the appellant's knowledge of contamination in 1991, albeit to an uncertain extent, was sufficient to trigger the limitation period, and the appellant was not required to know the full extent of the contamination for the period to begin running.

The court considered the allocation and quantum of costs following summary judgment in favour of Canadian Pacific Railway Company (CPR), where the third party, Canada Colors and Chemicals Limited (CCCL), sought costs from the plaintiff, 863880 Ontario Limited.

The court found that exceptional circumstances justified ordering the plaintiff to pay CCCL’s costs, but not the full amount claimed.

The court directed a revised calculation, holding the plaintiff responsible for half of CCCL’s reasonable costs up to the discontinuance of a related third party claim, and all reasonable costs thereafter, subject to a 20% reduction and further specific deductions.

The court awarded the Applicants partial indemnity costs in the amount of $88,743.94 after finding that the Respondent developer was not entitled to charge certain adjustment amounts on closing under the agreements of purchase and sale.

The court found the Developer's conduct increased costs but did not rise to the level warranting substantial indemnity.

The decision reviews the appropriate scale and quantum of costs, referencing the Developer's failure to provide information and the resulting bifurcation of the proceeding.

The applicants, purchasers of units in a townhouse complex, sought a declaration that the developer was not entitled to charge them certain adjustment amounts on closing under their agreements of purchase and sale.

The court found that the developer was not entitled to pass on utility infrastructure costs paid to contractors, trades, and other third parties, but only those paid to the municipality or utility service providers, and for meter installation.

The court also found the developer was not entitled to charge $800 for an extension of the closing date.

The application was granted, and a reference on damages was directed.

The plaintiffs brought a motion to set aside an administrative dismissal and a motion for contempt against Susan Stevens for breaching court orders related to the disposition of a recreational vehicle (RV) subject to a Mareva injunction.

The court found that the orders were clear and unequivocal, that Ms. Stevens had actual knowledge of them, and that she intentionally breached them by selling the RV.

The court found Ms. Stevens in contempt, ordered her to provide documentation and pay over the proceeds, and adjourned the penalty phase to allow her an opportunity to purge her contempt.

The decision addresses motions by First Trust Management AG, as Trustee of The Salus Rete Trust, to stay or dismiss two related actions on the basis that Ontario lacks jurisdiction or is not a convenient forum.

The court finds that the claims are adequately pleaded, that Ontario has jurisdiction simpliciter based on several presumptive connecting factors (including contracts made in Ontario and torts committed in Ontario), and that Ontario is the most appropriate and convenient forum for the actions.

The motions are dismissed.

The Court of Appeal for Ontario heard a motion to quash a motion for leave to appeal from a Superior Court decision.

The Superior Court had dismissed an application to review an arbitrator's jurisdiction decision, finding the responding parties had waived their right to object.

The Court of Appeal determined it lacked jurisdiction to hear an appeal from the application judge's order, citing s. 17(9) of the Arbitration Act, 1991, which explicitly states there is no appeal from a court's decision on a preliminary question of an arbitrator's jurisdiction.

The court found the arbitrator's jurisdiction ruling was indeed a preliminary question, despite its timing.

Consequently, the motion for leave to appeal was quashed, and costs were awarded to the moving parties.

The defendant, Canadian Pacific Railway Company (CPR), brought a motion for summary judgment to dismiss an action by 863880 Ontario Limited (863) as statute-barred.

The action sought damages for TCE contamination on a property purchased by 863 from CPR's predecessors.

CPR argued 863 had sufficient knowledge of the contamination by April 1991, triggering the six-year limitation period. 863 contended it only gained full knowledge in 1998.

The court found that 863 had actual knowledge of the contamination in April 1991, sufficient to trigger the limitation period, as perfect or complete knowledge of the extent or source of damage is not required.

The motion for summary judgment was granted, and 863's action against CPR was dismissed.

This appeal concerned the determination of assets in a deceased's estate.

The Court of Appeal set aside the motion judge's order, finding several errors.

The motion judge erred by relying on trust principles without a determined estate representative, misapplying the "one economic unit" concept to presume equal sharing, making flawed credibility findings based on an uncross-examined witness, and making conflicting factual findings.

The appellate court emphasized that complex factual and credibility issues, especially with voluminous records, require oral evidence and that pending applications should be consolidated and heard together after the determination of a valid will or intestacy.

The applicants sought a determination that the arbitrator erred in finding jurisdiction over certain relief claimed by the respondents in an ongoing arbitration.

The court found that the applicants had waived their right to object to the arbitrator's jurisdiction through their conduct, including filing a counterclaim and issuing their own notice of demand for arbitration invoking the arbitrator's jurisdiction.

The court dismissed the application, emphasizing that allowing a last-minute jurisdictional challenge after significant participation would undermine the efficiency and benefits of arbitration.

This is a costs endorsement following motions by three groups of defendants to strike the plaintiff's fresh as amended statement of claim.

The court had previously substantially granted the motion by the 1Plus12 Corporation defendants, dismissed the motions by the Ricci and Karp defendants to strike the statement of claim against them, and struck the plaintiff's affidavit.

This endorsement determines the costs payable between the parties.

The 1Plus12 defendants were awarded $17,000 in partial indemnity costs from the plaintiff, as they were substantially successful.

The Ricci defendants were awarded $9,000 in partial indemnity costs from the plaintiff, despite their motion to stay being dismissed, due to the necessity of responding to allegations of criminal conduct that were struck.

No costs were awarded to or against the Karp defendants, as their motion to strike the claim against them was dismissed, although they succeeded in striking the plaintiff's affidavit.

This is a costs decision following a successful application by Sukhvinder Kang (Applicant) against Resham Dhillon (Respondent) for the sale of a property.

Kang sought partial indemnity costs of $24,202.65.

The court found that Dhillon's evidence in the main application was inconsistent and lacked credibility, and that his denial of previously acknowledged facts regarding property ownership unnecessarily increased Kang's litigation costs.

The court applied the factors under Rule 57.01 and Section 131(1) of the Courts of Justice Act, concluding that the costs sought by Kang were fair and reasonable given the circumstances and Dhillon's conduct.

The applicant sought partition and sale of a property, asserting 50% beneficial ownership despite the respondent holding sole legal title.

The respondent denied beneficial ownership and raised limitation period defenses.

The court found the applicant to be a 50% beneficial owner based on evidence including a UK consent order from divorce proceedings and the respondent's own acknowledgments.

The court dismissed the limitation period defenses, finding the cause of action accrued when the respondent first refused to cooperate in the sale after a lien was discharged.

The court ordered the property's sale and an accounting of rents, but dismissed the applicant's claim to offset amounts owed under the UK consent order, citing lack of jurisdiction and delay.

This endorsement addresses the issue of costs following a successful application by the Town of Oakville and Oakville Hydro Electricity Distribution Inc. (Applicants) for a declaration that the Respondents' pool amenities encroached upon a hydro easement.

The Applicants sought costs on a partial indemnity scale totaling $77,782.87.

The Respondents argued for a reduction to a maximum of $50,000.

The court awarded the Applicants $50,000 in costs, finding a reduction warranted due to the Applicants' partial success on the underlying application (only one of two bases for relief was granted) and their unreasonable refusal to consent to legitimate adjournment requests.

The applicants sought a declaration and injunction compelling the respondents to remove pool amenities encroaching on a hydro easement.

The court found that the easement explicitly prohibited the erection of any building or structure, regardless of whether it caused substantial interference.

The respondents' arguments of proprietary estoppel and lack of substantial interference were rejected.

The application was granted, ordering the removal of the amenities and remediation of the easement.

This endorsement addresses the costs arising from a two-week trial where the Plaintiff and Third Party were entirely successful.

The court awarded substantial indemnity costs for the trial, citing the Defendants' unreasonable litigation conduct and the Garber Defendants' rejection of a generous Rule 49 offer to settle.

Additionally, costs thrown away due to an adjournment caused by Ms. Garber's ill health were awarded against the Garber Defendants, though reduced from the amount claimed.

The decision also clarifies that the Costs Subcommittee's recommended rates for Rule 57 are outdated and discusses the limited relevance of a litigant's ability to pay costs without sufficient evidence.

During a trial for nuisance, the defendants sought to introduce evidence of the plaintiff's alleged retaliatory conduct (e.g., loud music, smoke) to mitigate punitive damages.

The court ruled this evidence inadmissible, finding no causal connection between the plaintiff's post-nuisance conduct and the defendants' initial actionable conduct (building a dock) or their failure to rectify it.

The court emphasized that for such evidence to be relevant to punitive damages, it must have provoked the defendant's actionable conduct, and any defense based on the plaintiff's conduct influencing the failure to rectify must be pleaded.

This is a costs endorsement following a Rule 21 motion brought by Cams Atlas, LLC ("Cams") to dismiss counterclaims by Water Exchange, Inc. ("Water") and Tech Sonic International, Inc. ("Tech").

Cams' motion against Water was granted after Water conceded the point, but only after Cams had fully prepared.

Cams' motion against Tech was dismissed, as Tech's counterclaim was closely related to its defense.

The court found Tech entitled to costs for successfully defending the contentious part of the motion, while Cams was entitled to some costs against Water for the late concession.

The judge fixed costs, ordering Cams to pay Tech $16,000, inclusive of fees, disbursements, and HST, after considering the complexity, importance of issues, and reasonable expectations of the parties.

The applicant sought declarations that the City of Hamilton was deemed to have consented to a demolition application under the Ontario Heritage Act due to insufficient notice, and orders for the Chief Building Official to process a demolition permit application.

The core issue was whether the City's notice of refusal, sent to a director's residence rather than the corporation's registered office or the address on the second application, constituted sufficient notice.

The court, relying on Supreme Court of Canada precedent, found that Section 67 of the OHA does not provide an exhaustive list of notice methods and that the City had taken a "positive step" to give notice, which was actually received and acted upon by the applicant's sole director.

Consequently, the application was dismissed.