Zachary Rosen

Following a ruling dismissing the applicants' claim for breach of a condominium purchase agreement but ordering the return of their deposit, the respondent sought substantial indemnity costs of $247,926.68.

The court awarded partial indemnity costs, finding no reprehensible conduct by the applicants to justify an elevated scale.

The court further reduced the costs award to account for divided success, the respondent's delay in returning the deposit, excessive hourly rates charged by senior counsel, and unexplained discrepancies in the respondent's bill of costs.

The applicants were ordered to pay $88,799.46 inclusive of disbursements and HST.

The appellant purchasers appealed a judgment enforcing a limitation of liability clause in a pre-construction condominium agreement of purchase and sale that restricted their damages for the respondent developer's breach to the return of deposits with interest.

The appellants argued the clause was unconscionable, contrary to the consumer protections of the Tarion Addendum, and that the respondent should have brought it to their attention.

The Court of Appeal found no error, noting that the appellants were sophisticated purchasers represented by counsel who negotiated significant changes to the agreement, and that the Tercon analysis provided an effective safeguard against abuse of limitation clauses.

The defendant brought a motion for summary judgment to dismiss the plaintiff's claim that it held a perpetual and exclusive right to own, operate, and collect tolls from a viable international border crossing in the vicinity of the Ambassador Bridge.

The plaintiff sought declarations of rights granted under the Canadian Transit Company Act and, alternatively, compensation for infringement and expropriation.

The court dismissed the motion, finding that the interpretation of the statutory franchise rights granted under the CTC Act, including whether implicit rights of exclusivity were conferred, raised a genuine issue requiring trial.

The applicants sought damages for breach of contract after the respondent developer cancelled an agreement of purchase and sale for a preconstruction condominium unit.

The respondent argued that the applicants had waived the strict timelines in the Tarion addendum and that two of the applicants had bound the third to an amending agreement.

The court found that while the applicants were partners who could bind each other, the doctrine of waiver did not apply to extend the early termination date.

However, the court held that the contract's limitation of liability clause was enforceable, restricting the applicants' remedy to the return of their deposits with interest.

The defendants successfully sought costs after obtaining summary judgment dismissing a medical malpractice claim.

The court, while acknowledging the plaintiffs' difficult experience and self-representation, awarded discounted costs to the defendants, emphasizing the principle of indemnity for the successful party tempered by the expectation of the unsuccessful party.

The defendants, a hospital and several doctors, brought a motion for summary judgment to dismiss a medical malpractice claim.

The plaintiffs, after 9 years of litigation, failed to provide admissible expert reports supporting their allegations of negligence in obstetric and gynecological care.

The court found that the reports tendered by the plaintiffs were not proper expert reports for litigation purposes, lacking opinions on the standard of care and causation, and not conforming to Rule 53.

Given the absence of expert evidence, which is generally fatal to medical malpractice claims, the court granted the defendants' motion and dismissed the action.

The applicant employer sought an interlocutory injunction to enforce non-competition and confidentiality clauses against a former employee who resigned and joined a competitor.

The employee had signed an employment agreement and later a shareholder agreement containing broader restrictive covenants.

The court dismissed the motion, finding the applicant failed to establish a strong prima facie case that the restrictive covenants were reasonable or enforceable, as they were overly broad and ambiguous.

The court also found no evidence of irreparable harm, as the applicant's claims of misused confidential information were speculative, and the balance of convenience favoured the employee.

This endorsement addresses a plaintiff's motion for leave to amend its statement of claim and the costs of both this motion and an earlier motion to dismiss/stay.

The court had previously stayed claims related to the recovery of subordinated indebtedness due to a standstill provision but allowed other claims, such as those for fraud and conspiracy related to unauthorized agreements, to proceed with leave.

The plaintiff sought to include claims for damages from unauthorized loan transactions, knowing assistance, breach of fiduciary duty, fraud, conspiracy, punitive damages, and oppression remedy.

The court permitted claims for damages from unauthorized transactions, knowing assistance, breach of fiduciary duty, fraud, and conspiracy, finding they fell outside the standstill provision.

However, claims for punitive damages equal to the subordinated indebtedness were disallowed as a disguised attempt to recover prohibited amounts.

The oppression remedy claim was also denied, as the plaintiff failed to establish a proper complainant status independent of its prohibited creditor capacity.

The Mizrahi Defendants, as the overall successful parties on the stay motion and more successful on the leave to amend motion, were awarded partial indemnity costs for both motions.

The appellant, ALYU Inc., appealed a lower court decision regarding the interpretation of an Agreement of Purchase and Sale (APS) for commercial units.

ALYU argued that the estimated measurements in the APS should not include a proportional amount of common elements.

The application judge had interpreted the APS to include common elements, dismissing ALYU's application.

The Court of Appeal upheld the application judge's decision, finding no palpable and overriding error in the contractual interpretation.

The court affirmed that the BOMA 1996 Standard, referenced in the APS, requires the unit area to be "grossed-up" to account for common areas, and that the interpretation aligned with the parties' mutual objective intentions.

The appeal was dismissed with costs.

Following a trial where the plaintiffs recovered $87,917 on a $15 million claim for breach of a royalty agreement, the court determined costs and interest.

The defendants had made a $400,000 offer to settle just prior to trial.

The court found the plaintiffs were successful on only one issue and failed to accept a reasonable offer.

Applying Rule 49.13, the court awarded the plaintiffs partial indemnity costs up to the date of the offer, and the defendants partial indemnity costs thereafter.

This resulted in a net costs award of $177,905.99 payable by the plaintiffs to the defendants.

Prejudgment interest was awarded at the Courts of Justice Act rate.

The appellant, Stericycle ULC, appealed an order dismissing its application for a declaration that it, rather than Daniels Sharpsmart Canada Limited, was the primary supplier for Provincial Health Services Authority (PHSA) under a public tendering process.

Stericycle argued that the application judge erred in contract interpretation, allowing impermissible bid repair, and failing to properly apply the duty of good faith.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's interpretation of the "Six Month Provision" or the contract start date.

The court also found no breach of the duty of good faith or honest performance by HealthPRO or PHSA, as their actions were consistent with the contract's purpose and Stericycle's reasonable expectations.

The applicant, an incumbent biomedical waste disposal provider, challenged the award of a new primary supplier contract to a competitor.

The applicant alleged that the respondents engaged in bid repair and breached their duty of fairness by allowing the competitor to delay the implementation of services and assisting them with regulatory approvals post-award.

The court dismissed the application, finding that the duty of fairness to unsuccessful bidders ended once the contract was awarded, and that the post-award communications were operational in nature and did not constitute bid repair.

The court also rejected the argument that the respondents had irrevocably elected the applicant as the primary supplier by utilizing their services during the transition period.

The defendant, Pacific Mortgage Group Inc., brought a motion seeking leave to introduce a late-served expert report from Duff & Phelps in a claim on a promissory note and counterclaim alleging undisclosed liabilities.

The court had previously issued an order precluding the service of expert reports due to the defendant's "cavalier and unacceptable" approach to compliance with the Rules of Civil Procedure.

The motion was opposed by the plaintiff and other parties, who argued that admitting the report would cause prejudice and further delay.

The court applied the three-part test from Gardner v Hann, considering the reason for non-compliance, its effects, and fairness in the circumstances.

Finding no adequate explanation for the delay, significant prejudice to the opposing parties, and a disregard for court orders, the court denied leave to introduce the expert report.

The plaintiffs sued the defendants for breach of a royalty agreement and promissory note following the winding-up of an investment fund.

The court found the defendants breached the royalty agreement by discontinuing payments after the fund's termination, as the agreement provided for a "proportionate continuation" of royalties if a significant amount of unitholders reinvested in successor funds.

However, the court rejected claims of bad faith and the necessity of an Independent Review Committee (IRC) referral for the winding-up decision.

Damages were awarded based on a modified calculation of the proportionate continuation of royalties, significantly less than sought by the plaintiffs.