Michael J. Valente

The appellants appealed a summary motion judge's decision dismissing their negligence claim against a lawyer and a related costs order.

The Court of Appeal dismissed the appeal, agreeing that a lawyer cannot be held liable for negligence when conducting a discovery in accordance with a court direction, even if an unfortunate event occurs.

Leave to appeal the costs order was granted, but that appeal was also dismissed, as the costs order fell within the broad discretion of the summary motion judge.

Parkland Corporation sought an interlocutory injunction to prevent SRAA Inc. and 1064110 Ontario Ltd. from unilaterally terminating their gas station leases and subleases to re-lease the properties to a competitor selling Esso brand fuel.

The respondents argued the agreements were essentially fuel supply contracts and that they were operating at a loss.

The court found that the respondents deliberately breached their contracts and that Parkland would suffer irreparable harm from the loss of control over the sites.

The court granted the interlocutory injunctions, enforcing the leases and the negative covenants in the subleases pending a final determination.

This endorsement addresses the question of costs following the plaintiff's unsuccessful motion for the release of funds held in trust.

The defendant sought costs on a partial indemnity basis.

The plaintiff did not oppose a costs award but argued for a lower amount, citing procedural delays and duplication of effort.

The court, applying principles of indemnity, proportionality, and reasonable expectation, fixed the defendant's costs at $11,500, inclusive of fees, HST, and disbursements.

The plaintiff purchaser brought a motion seeking the release of over $1.1 million held in trust by its counsel.

The funds had been paid into trust pursuant to a consent order to replace a vendor take-back mortgage on the subject property, pending a final determination of the amount owing to the defendant vendor.

The plaintiff argued that the funds should be released because the agreed-upon timetable for resolving the dispute had passed, the trust arrangement amounted to execution before judgment, and the plaintiff had sufficient assets to satisfy any judgment.

The court dismissed the motion, finding that the consent order did not provide for the release of the security if the timetable was not met, that holding agreed-upon security is not execution before judgment, and that the court has no jurisdiction to deprive a secured creditor of its security simply because the debtor has other assets.

The applicant sought partial indemnity costs of approximately $42,000 following her successful application to recognize an easement and defence of a counterapplication.

The respondents argued for a costs award of $10,000, relying on a prior settlement offer.

The court rejected the respondents' reliance on the settlement offer, noting it would have left the applicant responsible for her own costs and restricted in her use of the right of way.

The court awarded the applicant $31,500 in all-inclusive costs.

The appellant sought leave under section 246 of the Business Corporations Act to commence a derivative action and file pleadings on behalf of a corporation in an ongoing shareholder dispute.

The application judge refused leave, finding that the proposed action would not benefit the corporation and that the appellant was not acting in good faith due to a conflict of interest.

On appeal, the Divisional Court applied the Housen standard of review and found no palpable and overriding error in the application judge's factual findings.

The appeal was dismissed with costs awarded to the respondents.

The applicant and respondents are neighbours with adjoining properties on Lake Erie.

The applicant sought a declaration that she had an implied or prescriptive appurtenant easement over a portion of the respondents' property to access the beach, after the respondents built fences blocking her path.

The court found that the applicant had established an easement by prescription through continuous, open, and peaceful use for over 20 years.

The court rejected the respondents' arguments that the easement had been extinguished by operation of law due to a change in purpose or abuse by the applicant.

The respondents were ordered to remove the obstructing fences.

The respondents brought a motion to quash parts of the appeal and for security for costs.

The Court of Appeal declined to quash parts of the appeal on a preliminary motion, leaving the issue for the panel hearing the appeal.

However, the court granted the motion for security for costs under Rule 61.06(1)(a), finding the appellant was impecunious and the appeal from an order allowing the respondents to discontinue their action appeared frivolous and vexatious.

The appellant was ordered to post $15,000 in security.

The plaintiff moved for summary judgment against the defendants on a guarantee given as part of a settlement agreement.

The corporate debtor defaulted on the settlement payment schedule, prompting the plaintiff to enforce the guarantee against the defendants.

The court granted summary judgment, finding no genuine issue for trial, and ordered the defendants to pay the principal sum of $90,000.

The court also applied section 4 of the Interest Act to limit the interest rate to 5% per annum, as the guarantee did not express an equivalent yearly rate.

Following the release of the court's decision on the appeal, the parties made written submissions on costs.

The respondent was awarded costs on a partial indemnity basis fixed at $12,000, inclusive of taxes and disbursements.

The appellant appealed a summary judgment dismissing his claims for trespass and intentional infliction of mental anguish against a security company and its principal.

The respondents had installed a security system at a home owned by the appellant, at the request of his estranged common-law partner who had exclusive possession of the home while the appellant was subject to bail conditions prohibiting his attendance.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the estranged partner had the authority to permit access, precluding both the trespass and mental suffering claims.

The plaintiffs brought a motion for leave to discontinue their simplified procedure action with prejudice.

The action involved a claim for latent defects in a purchased property.

The plaintiffs sought to discontinue because their expert became unavailable, the defendant was unable or unwilling to be examined for discovery, and the defendant was impecunious with unpaid costs awards.

The court applied the factors for granting leave to discontinue and found that the prejudice to the plaintiffs in continuing the action outweighed any prejudice to the defendant.

The motion was granted.

The applicant and respondent were equal shareholders in two corporations.

Following the sale of corporate assets, a dispute arose over the distribution of the remaining holdback funds.

The respondent sought to enforce an alleged 2016 agreement for compensation for past services, but acknowledged he had not commenced a formal claim within the two-year limitation period.

The court held that the respondent could not use his responding affidavit on the application to advance a claim that was statute-barred.

The court ordered the holdback funds to be divided without regard to the respondent's claim for compensation.

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 applicants sought a review and adjustment of the accounts of a private receiver and its legal counsel regarding the windup of a bankrupt company.

The court found that the receiver's fees of over $106,000 and legal fees of over $35,000 were excessive given the simplicity of the receivership, the extensive assistance provided by the debtor, and an initial estimate of $30,000 to $50,000.

The court reduced the receiver's fees to $50,000 and the legal fees to $28,516.79, and ordered the receiver to release $50,000 in surplus funds it had withheld.

Following summary judgment in favour of a bank on a personal guarantee for corporate indebtedness, the court determined the costs of the action.

The bank had delivered a written offer to settle under Rule 49 that proposed payment of the principal amounts claimed, reduced interest, and partial indemnity costs.

The court found the offer complied with Rule 49.10 of the Rules of Civil Procedure and that the bank achieved a result more favourable than its offer.

Accordingly, the bank was entitled to partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

Costs were fixed at $33,000 inclusive of disbursements and HST, payable forthwith by the guarantor defendant.

The plaintiff bank brought a motion for summary judgment against a corporate director on his personal guarantee of the corporation's indebtedness.

The guarantor argued he was released from liability because he verbally resigned, another director forged his signature to misappropriate funds, and the bank altered the credit agreement without his consent.

The court granted summary judgment, finding the guarantee required written notice of termination, the corporation failed to implement safeguards against forgery as required by the banking agreement, and the guarantee contained an absolute liability clause permitting alterations to the principal contract.

The respondent, having been successful in the appeal, sought costs on a substantial indemnity basis, citing criticisms of the appellant's counsel.

The Divisional Court rejected the request for substantial indemnity costs, finding that counsel's failure to remit a notice of hearing was minimally inconvenient and that punishing a party for their counsel's inaccurate time estimate was inappropriate.

Costs were awarded to the respondent fixed at 60% of actual costs, inclusive of disbursements and taxes.

The appellant appealed a decision of the Landlord and Tenant Board, which found that a tenancy was provided as part of an employment compensation package and ended when the employment relationship ended.

The Divisional Court dismissed the appeal, holding that the Board's findings of fact were reasonable and within its jurisdiction, and that no error of law was demonstrated.

The court also declined to stay the eviction order, noting that an application for a stay requires proper materials addressing the test for injunctive relief.

The plaintiff, operating as Carey Industries, brought a motion for an interlocutory injunction to restrain the defendants from carrying on business under the name 'Steve's Welding & Sandblasting Inc.' The plaintiff had previously operated under the trade name 'Steve's Welding & Sandblasting' for nearly 30 years before changing its name.

The individual defendant, a former owner and employee of the plaintiff, incorporated the competing business shortly after his departure.

The court applied the RJR-MacDonald test and found a serious issue to be tried regarding passing off, noting the identical trade name and evidence of actual customer confusion.

The court concluded the plaintiff would suffer irreparable harm to its goodwill and that the balance of convenience favoured granting the injunction.