Lea Nebel

Following a decision granting judgment in favour of the respondents on an application involving a mortgagee's right to sell property, the respondents sought costs of $270,292.15.

The applicant opposed costs on the basis that the respondents had provided a misleading answer to the court regarding the arm's-length nature of a proposed purchaser, which was subsequently assigned to an entity connected to an investor behind the second mortgage.

The court found the respondents' refusal to answer follow-up questions about the assignment and the relationship between the purchaser and the investor raised serious doubts about the accuracy of representations made during the proceeding.

Exercising its discretion to depart from the general principle that costs follow the event, the court declined to award costs to the successful party as a sanction for non-cooperation with the court.

The Corporation of the City of Ottawa moved to set aside a Registrar's order dismissing its action for delay and to reinstate the action.

The motion was opposed by some third parties.

The court applied the test for setting aside a dismissal order for delay, finding that the City provided a satisfactory explanation for the delay, consistently intended to prosecute the action, and acted promptly to address the dismissal.

The court also determined that the opposing parties would not suffer significant prejudice from the reinstatement.

The motion was granted, reinstating the main action and automatically reviving derivative third-party claims.

The Plaintiffs brought a motion for a Mareva injunction and a Norwich Order against the Defendants, alleging fraud and misappropriation of approximately $700,000 in foreign currency reserves.

The court found a strong prima facie case of fraud, irreparable harm, and a serious risk of asset dissipation by the Defendants.

Consequently, the Mareva injunction was granted to restrain the Defendants from dissipating assets, and a Norwich Order was issued compelling financial institutions to disclose information for asset tracing.

The Plaintiffs' alternative request for a Certificate of Pending Litigation was not addressed given the primary relief granted.

The moving parties brought a motion for leave to appeal the order of Carey J. dated May 1, 2023.

The Divisional Court dismissed the motion for leave to appeal.

As agreed by the parties, the moving parties were ordered to pay the responding party's costs fixed at $3,000.

The plaintiff, Leanne Briscoe, brought a motion for summary judgment against the defendants, 9327959 Canada Inc. and Stephan Yaworski, seeking repayment of a $150,000 loan.

The loan was evidenced by a promissory note that stipulated repayment by December 4, 2021, or upon the sale of a property, whichever occurred earlier, plus interest.

The property was not sold by the deadline, triggering the repayment clause.

The defendants argued the note was unenforceable due to a lack of consensus ad idem, adverse market conditions, and the rights of prior lenders, claiming verbal agreements supplemented the written terms.

The court found the promissory note clear and unambiguous, and that the defendants failed to provide specific, coherent evidence to support their claims, relying instead on bald allegations.

Exercising its enhanced fact-finding powers under Rule 20.04(2.1) of the Rules of Civil Procedure, the court determined there was no genuine issue requiring a trial.

Summary judgment was granted in favour of the plaintiff for $195,000 plus pre-judgment interest.

The Second Mortgagees (Janodee Investments Ltd. and Meadowshire Investments Ltd.) brought a motion seeking an order for 1482241 Ontario Limited to pay an over-holding fee of $63,900, as stipulated in a second mortgage agreement.

The fee was triggered because the mortgage was not repaid or renewed by its maturity date. 1482241 Ontario Limited, which had filed a notice of intention to file a proposal under the Bankruptcy and Insolvency Act, argued that the fee constituted an interest penalty contrary to section 8 of the Interest Act.

The court, applying principles from Dunlop Pneumatic Tyre Co. v. New Garage & Motor Co., found the over-holding fee to be an unenforceable penalty.

The court reasoned that the fee was arbitrary, not a genuine pre-estimate of damage, and would overcompensate the Second Mortgagees while depleting assets available to other creditors.

Consequently, the motion was dismissed.

The tenant appealed a Landlord and Tenant Board decision terminating her tenancy under section 93 of the Residential Tenancies Act following the termination of her employment as a superintendent.

The tenant argued she was denied natural justice and that the Board erred in law by finding an employment relationship and failing to consider section 83(3) of the Act.

The Divisional Court dismissed the appeal, finding no denial of procedural fairness, that the Board sufficiently considered the statutory provisions, and that the finding of an employment relationship was a question of mixed fact and law not subject to appeal.

The appellant appealed a Small Claims Court decision dismissing his claim against the respondent bank for $4,350 in allegedly unauthorized withdrawals.

The trial judge found, based on video and documentary evidence, that the appellant had made the withdrawals himself.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's findings of fact and rejecting the appellant's claim that he was denied a fair trial.

The appellant appealed the dismissal of his application for relief under ss. 134 and 135 of the Condominium Act, 1998.

The Court of Appeal allowed the appeal, finding that the application judge's reasons were inadequate.

The application judge failed to appreciate the issues, did not set out the correct legal test for oppression, provided no basis for concluding there were no breaches of the Act, and failed to explain the exercise of his discretion.

The matter was remitted for a fresh hearing.

In a certified class action arising from a residential apartment fire, a defendant property manager sought leave to discontinue its third party claim against an insurance adjusting firm and a security investigation company without costs following settlement of the main action.

The third parties opposed the motion and sought substantial indemnity costs exceeding $127,000.

The court held that although it was reasonable for the defendant to join the third parties given allegations concerning post‑fire activities, it was not reasonable to discontinue the claim without compensating them for defending the proceeding.

Applying the general costs principles under rule 57.01 and the discretionary framework for discontinuances under rule 23.05, the court awarded costs on a partial indemnity basis.

The court fixed fair and reasonable costs at $72,000 inclusive of disbursements and taxes.

Following the dismissal of a plaintiff’s motion for an interlocutory injunction, the court addressed costs.

The successful defendants sought partial indemnity costs up to the date of a settlement offer and substantial indemnity costs thereafter, while the plaintiff argued that costs should be in the cause because the underlying action remained unresolved.

The court held that settlement discussions related to the action as a whole and did not justify substantial indemnity costs for the motion.

Because the motion was self‑contained and dismissed in its entirety, the defendants were entitled to costs on a partial indemnity basis.

The court reduced the defendants’ claimed fees to an amount comparable to the plaintiff’s own costs estimate and awarded a global costs figure.

The plaintiff employer sought an interlocutory injunction against former employees and their new company alleging misappropriation of confidential information, breach of fiduciary duty, and breach of non‑solicitation clauses in employment agreements.

The court considered the test for interlocutory injunctions under RJR‑MacDonald and whether stronger proof was required in employment and restrictive covenant contexts.

The motion failed because the alleged confidential information consisted largely of generic consulting practices and there was no credible evidence that proprietary information had been taken or misused.

The alleged client and employee solicitations were disputed, unclear under the wording of the agreements, and occurred more than a year earlier, with no evidence of ongoing harm.

As the plaintiff failed to demonstrate irreparable harm or a clear breach of enforceable covenants, injunctive relief was denied.

Following a summary judgment motion, the court had previously awarded substantial indemnity costs to the defendant.

After the costs endorsement was released, defence counsel disclosed that the defendant’s legal fees had been paid by his employer rather than personally.

The plaintiff argued that this new information warranted reconsideration of the costs award or reduction to partial indemnity.

The court held that the source of payment for the defendant’s legal expenses did not materially alter the reasoning underlying the substantial indemnity award, which was primarily based on the plaintiff’s litigation conduct.

The prior costs award therefore remained unchanged.

Following the granting of summary judgment dismissing the action, the successful defendant sought substantial indemnity costs.

The plaintiff opposed, arguing that the motion judge should not fix costs due to affidavit evidence, that elevated costs were unwarranted, and that costs should be limited to the summary judgment motion rather than the entire action.

The court rejected these submissions, holding that the judge retained discretion to fix costs and that summary judgment terminating the action justifies assessing costs of the entire proceeding.

The court found the litigation was aggressively pursued without evidentiary foundation and contained serious unfounded allegations affecting the defendant’s reputation.

Substantial indemnity costs were awarded.

The defendant brought a motion for summary judgment under Rule 20.01(3) seeking dismissal of a negligence and intentional infliction of emotional distress claim arising from alleged failures by a condominium security guard to notify a resident of delivered packages and from a subsequent lobby encounter.

The court held that the evidentiary record contained no credible evidence that the defendant acted wrongfully or that the plaintiff suffered any compensable loss.

The plaintiff failed to provide particulars or documentary support for alleged financial losses, investment opportunities, loan documents, or emotional distress.

Applying the summary judgment framework and emphasizing the obligation on a responding party to put its best evidence forward, the court found no genuine issue requiring a trial.

The appellants appealed an order of the motions judge which found that a previous order was not for the payment of money and therefore did not attract an automatic stay pending appeal under Rule 63.01.

The Court of Appeal allowed the appeal, distinguishing prior case law on the basis that the holder of the funds was not an independent third party and there was a dispute concerning the debt.

The Court concluded the order practically required the payment of money between the parties and directed that the order be stayed pending appeal.

The appellant appealed an order of the lower court judge, who had dismissed their initial appeal for abuse of process due to undue delay in prosecution.

The Court of Appeal found no error in the lower court judge's conclusion and dismissed the appeal.

The respondent was awarded costs of $5,000.

A motion for leave to cross-appeal to add a party to the lower court's order was also dismissed.