Max Shapiro

Following the dismissal of a proposed intervener's motion to intervene, the successful party and another intervener sought costs.

The court awarded the successful party elevated costs fixed at $460,000, apportioning liability among the proposed intervener (65%) and the two defendants (17.5% each) due to the defendants' delayed positions which complicated the motion.

The second intervener was awarded $12,500 in costs against the proposed intervener, limited to costs incurred after it first requested them in its factum.

A case management conference was held to address the parties' efforts to clarify the scope of the plaintiff's claims.

The plaintiff delivered a proposed amended statement of claim following demands for particulars and written interrogatories.

The defendants required additional time to review the proposed claim to determine consent, timetable impacts, and the scope of any necessary motions.

A further case management conference was scheduled to address these issues.

A case conference was held to address procedural issues arising from a prior endorsement in an Indigenous land claim action.

The court determined the content and scope of a notice to be delivered to Haudenosaunee communities, ruling that the defendants could state their position in the notice and that delivery would not be expanded to Treaty 18 and 19 beneficiaries to avoid undue complexity.

The court also held that no special communications protocol was necessary and declined to order the proposed intervener, Men's Fire, to deliver a pleading.

The Haudenosaunee Development Institute (HDI) brought a motion to be added as a party and appointed as a representative of the Haudenosaunee Confederacy in an action commenced by the Six Nations of the Grand River Band of Indians against Canada and Ontario.

Following case conferences, the parties and HDI consented to a timetable for the motion and terms for providing notice to potentially interested non-parties.

The court issued an order on consent setting out the timetable and the specific notice requirements.

The appellants appealed an associate judge's order dismissing their motion to vary a timetable and dismissing their counterclaim for delay.

The associate judge had previously granted a final, peremptory extension to set the action down for trial, which the appellants failed to meet.

The Divisional Court found no palpable and overriding error in the associate judge's factual findings that the appellants engaged in a pattern of conduct that delayed the proceedings and lacked a reasonable explanation for failing to comply with the peremptory deadline.

The appeal was dismissed with costs.

The applicant sought to overturn an arbitrator's decision assuming jurisdiction over a business dispute between co-tenants of a real estate development project.

The parties were deadlocked on whether the project should include a hotel component.

The arbitrator found he had jurisdiction under a broad arbitration clause.

The Superior Court of Justice held that the dispute was a non-legal business decision that did not arise under the agreement, as the agreement required unanimous decision-making and did not provide a standard of review for this type of dispute.

The court set aside the arbitrator's decision, finding he lacked jurisdiction.

The plaintiff commenced an action regarding a stream of royalty payments from a mine in Guatemala.

The defendants brought motions to strike the claim.

In response, the plaintiff delivered an amended statement of claim.

The defendants moved to declare the amended claim a nullity, arguing it could not be amended without leave in the face of a motion to strike.

The plaintiff brought a cross-motion for leave to amend.

The court held that while leave is required to amend a claim in the face of a motion to strike, the motion for leave should be heard first.

The court granted the plaintiff leave to amend, finding that the proposed amendments were not time-barred, did not withdraw admissions, and were sufficiently particularized.

The appellant, ITP SA, appealed a Master's decision granting a stay of an Ontario action commenced by the respondent, Nexen Energy ULC.

The parties' contract contained a forum selection clause designating Ontario courts and Alberta law.

Following a pipeline rupture, Nexen commenced a multi-party action in Alberta and a protective action in Ontario against ITP.

ITP sought to use the Ontario action solely to determine two limitation of liability clauses under the forum selection clause, while agreeing the rest of the action could proceed in Alberta.

The Master stayed the Ontario action, finding 'strong cause' to deviate from the forum selection clause because ITP could not 'slice and dice' the litigation.

The Divisional Court dismissed the appeal, finding the Master applied the correct test and made no palpable and overriding error.

The defendants brought a motion to transfer the plaintiff's action from Brampton to Windsor.

The plaintiff, a self-described problem gambler, sued the defendants for losses sustained at Caesars Windsor.

The court applied a holistic analysis of the factors under Rule 13.1.02(2)(b) of the Rules of Civil Procedure.

Finding that the events occurred in Windsor, the damages were sustained there, the community had an interest, and a trial could be heard much sooner in Windsor, the court concluded that Windsor was a significantly better venue.

The motion to transfer was granted.

The plaintiff condominium corporation brought a motion to set aside a registrar's order dismissing its construction deficiency action for delay.

The action, which sought $5,000,000 in damages primarily related to elevator issues, was dismissed after the plaintiff inadvertently missed the set down deadline.

The court applied the test from H.B. Fuller Company v. Rogers, finding that the plaintiff adequately explained the delay, moved promptly to set aside the order, and demonstrated that the failure was inadvertent.

Crucially, the court found no significant prejudice to the defendants, as the case relied heavily on documentary evidence which had been preserved.

The motion was granted and the dismissal order was set aside.

In the CCAA proceedings of U.S. Steel Canada Inc., its parent company, United States Steel Corporation, sought approval of several proofs of claim totaling over $2 billion.

Various stakeholders objected, arguing that the intercompany loans should be re-characterized as 'equity claims' under the CCAA and that the security granted for certain advances was void as a fraudulent preference or unenforceable for lack of consideration.

The court rejected the objections, finding that the parent company had a reasonable expectation of repayment when the advances were made, and that the security was validly granted for fresh consideration and did not constitute a fraudulent preference.

The claims were confirmed as debt claims.

The applicant franchisor sought to enforce a restrictive covenant against a former franchisee who continued to operate a similar home medical equipment business at the same location after the franchise agreement expired.

The respondents argued the covenant was unenforceable due to a failure to provide a disclosure document under the Arthur Wishart Act and that the covenant was an unreasonable restraint of trade.

The court found that disclosure was not required because the franchisor was not sufficiently involved in the sale of the franchise.

The court also held that the restrictive covenant was unambiguous, reasonable in its 18-month and 30-mile scope, and protected the franchisor's legitimate business interests.

The application was granted and the respondents were ordered to cease operating the competing business.

Following a motion regarding the pre-certification production of medical records where the responding party (plaintiffs) was largely successful, the parties submitted costs submissions.

The plaintiffs sought $13,368 on a partial indemnity basis, while the defendants argued for costs in the cause or a maximum of $3,500.

The court found the plaintiffs were entitled to partial indemnity costs but reduced the claimed amount to comply with the Rules Committee's Grid for hourly rates and to account for excessive disbursement claims.

Recognizing the plaintiffs were largely but not entirely successful, the court fixed costs at $6,800 all-inclusive.

In a proposed pharmaceutical class proceeding alleging that anti-psychotic medications caused gynecomastia and that the defendants failed to warn of that risk, the moving defendants sought pre-certification production of broad medical and pharmacy records for five affiants.

The court held that pre-certification medical production must be limited to records bearing on certification issues and rejected any request that effectively sought entire medical files.

It confirmed production of records relating to prescriptions, ingestion, development of gynecomastia, related risk or warning discussions, and related surgeries.

The court refused on the present record to compel further diagnosis and treatment records aimed at individual causation or vague assertions about commonality and preferability, but left the issue open for renewal on cross-examination.

The appellant appealed a decision of the Financial Services Tribunal dismissing his claim for a pension from his former employer.

The appellant argued that the pension plan's locking-in provision was clear and entitled him to a pension, or alternatively, that the ambiguous provision should be interpreted in his favour using the contra proferentem rule.

The Divisional Court dismissed the appeal, finding the Tribunal's interpretation of the ambiguous provision was reasonable and consistent with the legislative context, and that the Tribunal made no error in declining to apply the contra proferentem principle.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

Costs were awarded to the respondent in the amount of $23,000, inclusive of relevant disbursements and taxes.

The respondent obtained a New York judgment requiring the appellant to deliver a painting pursuant to a contract of sale.

The respondent successfully moved in Ontario to enforce the New York judgment, and was awarded substantial indemnity costs based on the appellant's conduct in the New York litigation.

On appeal, the Court of Appeal upheld the enforcement order, finding that the appellant had attorned to the New York court's jurisdiction by advancing substantive defences on the merits in that forum.

However, the Court allowed the appeal regarding costs, holding that the scale of costs should be determined by the appellant's conduct in the Ontario proceeding, not the foreign litigation, and substituted an award of partial indemnity costs.