Lucy Sun

Following a successful trial where the plaintiff was awarded approximately $8.9 million, the plaintiff sought costs of $3.49 million based on a Rule 49.10 offer.

The defendant argued the offer was not a true compromise and challenged the proportionality of costs and specific disbursements.

The court found the Rule 49.10 offer was a genuine compromise, entitling the plaintiff to partial indemnity costs to the offer date and substantial indemnity costs thereafter.

The court allowed disbursements for fact witness preparation and e-discovery, but disallowed fees for an expert who did not testify.

Costs were fixed at $2.8 million.

The plaintiff, Wiener Städtische Versicherung AG (VIG), a reinsurer, sought to recover funds from the defendant, Infrassure Ltd., a retrocessionaire, under a retrocession agreement.

VIG had paid its portion of a $140 million settlement to Zurich Insurance Company Ltd. (Zurich) for a business interruption claim by Vale (Canada) Limited.

Infrassure denied liability, arguing it was not contractually bound to follow the settlement and that Zurich failed to take proper and businesslike steps.

The court found that Infrassure was contractually bound by the "follow the settlements" clause and that Zurich had taken proper and businesslike steps in reaching the settlement.

Judgment was granted in favour of VIG for the settlement amount and loss adjustment costs, with the court denying VIG's claim for punitive damages.

DGAP Investments Ltd. sought a stay pending leave to appeal an order from the supervising judge in a CCAA proceeding.

The order authorized Stelco Inc. to acquire partnership units in a Land Vehicle, which DGAP argued would obstruct its prior agreement to purchase land from the Land Vehicle.

The Court of Appeal applied the RJR-MacDonald test for a stay, finding that DGAP's case for leave to appeal was weak on the merits, there was no irreparable harm given the supervising judge's measures to protect DGAP's interests, and the balance of convenience favoured dismissing the stay to allow the CCAA proceeding to conclude and benefit aging stakeholders.

The motion for a stay was dismissed, and the leave to appeal motion was expedited.

DGAP Investments Limited brought a motion seeking a declaration that provisions governing shared facilities and reciprocal easement agreements in a reconveyance agreement with Stelco Inc. had been complied with or were unnecessary, or alternatively, for court approval of its proposed easement agreement.

This dispute arose within the ongoing Companies’ Creditors Arrangement Act (CCAA) proceedings involving U.S. Steel Canada Inc. The court dismissed DGAP's motion, rejecting its interpretation that the Reconveyance Date had passed and that easement obligations no longer existed.

The court affirmed its jurisdiction under section 11 of the CCAA to resolve such impasses to ensure the timely completion of the reconveyance.

While acknowledging an impasse, the court declined to impose DGAP's specific easement agreement due to an insufficiently developed record, instead ordering continued negotiations and a future case conference to schedule a motion for a judicial determination of the easement dispute.

The moving party brought a motion for leave to appeal two orders of the lower court.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding party.

Stelco Inc. sought leave to appeal an order from the Superior Court of Justice requiring it to complete the severance and conveyance of a parcel of land (the "Reconveyance Parcel") to Legacy Lands Limited Partnership's nominee, in accordance with a 2018 reconveyance agreement.

Ernst & Young Inc., as court-appointed Monitor in the U.S. Steel Canada Inc. CCAA proceeding, and DGAP Investments Ltd., a purchaser of the land, opposed the motion.

The Court of Appeal dismissed Stelco's motion for leave to appeal, finding that the motion judge did not err in concluding the CCAA applied, and that the proposed appeal was not prima facie meritorious nor did it raise issues of significance to insolvency practice.

The court upheld the motion judge's discretionary decision to grant specific performance and his finding regarding waiver of MOECC consent.

This endorsement addresses two motions in a complex litigation involving allegations of misappropriation of confidential information and trademark infringement.

The first motion, brought by the plaintiffs, sought further document production from the defendants and leave to amend the claim.

The second motion, brought by certain defendants, sought forensic examination of specific electronic documents and production of network access records from the plaintiffs, and also proposed bifurcation of a key issue.

The court ordered reciprocal production of relevant confidential business documents under a protective order, denied bifurcation due to lack of consent, ordered the plaintiffs to undertake a forensic search for disputed electronic documents and produce network access records, and largely granted the motion to amend the claim, with the exception of a plea to pierce the corporate veil.

This is a costs endorsement following an appeal decision where the Court of Appeal allowed the appeal, restored an arbitrator's award, and awarded costs of the appeal to the appellant.

The court set aside the application judge's original costs order and awarded costs of the proceedings before the application judge to the appellant, Halton Condominium Corporation No. 137, in the sum of $8,083.33, inclusive of disbursements and applicable taxes.

The appellants appealed the dismissal of their action for summary judgment, which the motion judge found to be a nullity because it was commenced by an undischarged bankrupt and was statute-barred.

The Court of Appeal upheld the motion judge's decision, confirming that the action was a nullity as the bankrupt lacked capacity to sue and the claim was time-barred.

The court also rejected arguments regarding the postponement of the limitation period and apprehension of bias, noting the appellant's counsel had waived any conflict.

The appellant, Halton Condominium Corporation No. 137, appealed an order setting aside an arbitration award concerning Mensula Bancorp Inc.'s access to parking units through the condominium's common elements.

The arbitrator had interpreted the condominium declaration to limit Mensula's access, but the application judge set aside the award, finding the arbitrator exceeded jurisdiction by effectively amending the declaration.

The Court of Appeal allowed the appeal and restored the arbitrator's award.

The Court held that the application judge erred by reviewing the substance of the arbitrator's interpretation under the guise of jurisdictional error, contrary to the narrow scope of review under the Arbitration Act, 1991.

Several property owners and tenants applied for property tax relief under s. 357(1)(d)(ii) of the Municipal Act, arguing that COVID-19 pandemic restrictions 'damaged' their income-producing properties by rendering them substantially unusable.

The Assessment Review Board held a motion to determine the preliminary legal interpretation of the provision.

The Board found that the word 'damage' in the statute requires physical damage to a building, applying the ejusdem generis maxim to restrict the phrase 'or otherwise' to physical causes like the listed 'fire' and 'demolition'.

The Board concluded that 'damage' does not include 'legislative damage' caused by government restrictions on business operations.

The defendant moved to set aside a default judgment and notice of garnishment obtained by the plaintiff.

The court granted the motion, finding that the defendant acted promptly upon learning of the judgment, provided a plausible explanation for the default due to improper service and lack of notification, and presented an arguable defence regarding defective products.

The court emphasized that the plaintiff's counsel failed to provide a courtesy copy of the claim or judgment to the defendant's retained counsel, and that the administration of justice favored a trial on the merits.

The appellants appealed a decision of the Assessment Review Board which determined that the current value assessment of a landfill site should exclude the value of a facility used to generate electricity from landfill gas.

The appellants argued the facility was a commercial activity, not used exclusively for landfilling activities.

The Divisional Court dismissed the appeal, finding that the generation of electricity from landfill gas is an environmental control activity required by the site's environmental compliance approval, and thus falls within the definition of landfilling activities under O. Reg. 282/98.

The Attorney General of Ontario brought an application under the Civil Remedies Act, 2001 for the civil forfeiture of approximately $3.7 million held in the respondents' bank accounts, alleging the funds were the proceeds or instruments of illegal online cannabis sales and money laundering.

The respondents had used a Hawala informal currency exchange to transfer legitimately earned Chinese currency into Canadian funds.

The court found that while a small portion of the funds could be traced to unlawful activity, the respondents were 'uninvolved interest holders' and 'responsible owners' who acquired the funds for fair value without knowledge of the illegal source.

The application for forfeiture was dismissed.

The applicant, a community development corporation, brought an application for a declaration that it is a 'local board' under the Municipal Affairs Act and therefore exempt from municipal property taxation under s. 3(1)(9) of the Assessment Act.

The court applied principles of statutory interpretation, including ejusdem generis, and found that the applicant did not meet the definition of a local board.

The application was dismissed.

The plaintiff moved to amend its statement of claim to increase damages and add allegations regarding the defendant's misuse of a lifetime loyalty program certificate, as well as a claim for unjust enrichment.

The defendant opposed, arguing the amendments introduced a new cause of action after the limitation period expired and failed to properly plead unjust enrichment.

The court allowed most of the amendments, finding they fell within the factual matrix of the existing breach of contract claim.

However, the court refused the amendment adding a claim for unjust enrichment because the plaintiff failed to plead an absence of juristic reason, and struck a reference to a breach of a separate 2011 agreement.

The Township of Uxbridge brought a motion to amend the Schedule of Events to allow it to file Statements of Response after the deadline had passed.

Uxbridge argued that administrative challenges from the COVID-19 pandemic and the release of a significant Board decision regarding gravel pit valuation constituted exceptional circumstances.

The Assessment Review Board dismissed the motion, finding that Uxbridge had made a conscious decision not to participate initially and that the release of a precedent-setting decision does not amount to an exceptional circumstance justifying an extension.

The Township of Warwick appealed the property assessment of an active private landfill owned by Waste Management of Canada Corporation.

The central issue was whether the valuation of the landfill under section 43.2 of O. Reg. 282/98 should include the market value of its remaining landfilling capacity.

The Assessment Review Board held that section 43.2 requires the exclusion of value attributed to the remaining landfilling capacity, as the regulation mandates valuing the land as if it were vacant industrial land.

The Board set the current value of the property at $6,387,000 for the 2019, 2020, and 2021 taxation years and found no equity adjustment was required.

The Township of Warwick appealed the MPAC assessment of an active private landfill owned by Waste Management of Canada Corporation for the 2019, 2020, and 2021 taxation years.

The central issue was whether section 43.2 of O. Reg. 282/98 requires the valuation of the landfill as 'vacant industrial land' to include the market value of its remaining landfilling capacity.

The Assessment Review Board held that section 43.2 establishes a special valuation regime that ousts the general market value approach under section 19(1) of the Assessment Act.

Consequently, the value of the remaining landfilling capacity must be excluded.

The Board determined the correct current value of the property to be $6,387,000 and found no basis for an equity adjustment.

The applicant sought to set aside part of an arbitration award concerning a parking unit owner's access to condominium common elements.

The court held that, although the access dispute was properly before the arbitrator, the arbitrator went beyond contractual interpretation and effectively corrected or amended errors and inconsistencies in the declaration.

Because amendments or corrections to a condominium declaration fall within the Superior Court's jurisdiction under s. 109 of the Condominium Act, the arbitrator decided a matter outside the scope of the arbitration agreement for the purposes of s. 46(1)3 of the Arbitration Act.

The access-related portion of the award was set aside and costs were awarded to the applicant.