Leslie Dizgun

The applicant was previously successful in an application to cancel a matrimonial home designation registered by the respondent, which had interfered with her mortgage renewal.

The parties made written submissions on costs.

The court found that the applicant made a reasonable offer to settle and obtained an order as favourable as her offer, triggering the costs consequences under Rule 18(14) of the Family Law Rules.

The court rejected the respondent's argument that costs should await the outcome of his application to set aside the separation agreement.

Costs were fixed at $18,500 plus disbursements, payable forthwith.

This is a costs endorsement following a motion by Zurich Insurance Company Ltd. for the production of a Crown Disclosure Brief from the defendants Vasos Georgiou and John Aquino.

The original motion was adjourned sine die after the Attorney General provided key undertakings.

The parties agreed on the quantum of costs ($20,000) but not on entitlement.

The court, exercising its discretion under the Courts of Justice Act and Rule 57, decided that no costs should be awarded to any party.

The decision considered the novelty of the issues, the timing of the Attorney General's undertakings, and the fact that the outcome was not primarily based on the arguments presented by the defendants seeking costs.

The plaintiff in a civil rescission action sought an order compelling the defendants to produce the Crown disclosure brief they received in related criminal proceedings concerning the same alleged fraud in a hospital procurement process.

The Attorney General opposed immediate production, arguing it could taint witnesses before they testified in the criminal trial.

The court balanced the interests under the Wagg framework and adjourned the motion sine die, accepting the Attorney General's undertaking to conduct a Wagg review and produce the documents within eight weeks after a verdict in the criminal proceedings.

This appeal addressed the standard of proof for establishing the existence of an arbitration agreement when seeking a stay of court proceedings under the International Commercial Arbitration Act, 2017.

The appellant argued for a balance of probabilities standard, while the motion judge applied an "arguable case" standard.

The Court of Appeal affirmed that, consistent with the Supreme Court of Canada's decision in Peace River Hydro Partners v. Petrowest Corp., the "arguable case" standard applies to the technical prerequisites for a mandatory stay, including the existence of an arbitration agreement.

The Court found no palpable and overriding error in the motion judge's conclusion that an arbitration agreement was arguably in existence based on the evidence.

The appeal was dismissed, and the stay of proceedings in favour of arbitration was upheld.

The plaintiff sought a two-year custodial sentence for the defendant, who was previously found liable for multiple acts of civil contempt, including transferring assets to put them beyond the court's jurisdiction and failing to disclose assets.

The defendant, who was already serving a 12-month sentence for prior contempt, requested a conditional sentence.

The court found the defendant's conduct to be a flagrant and repeated defiance of court orders, warranting a strong signal of deterrence and denunciation.

The defendant was sentenced to 16 months in jail without the possibility of parole, with conditions allowing for early release if the contempt is purged.

This endorsement addresses the issue of costs following a trial where Arctic Spas Oakville Inc. (ASOI) was awarded damages against Blue Falls Manufacturing Ltd. The court awarded ASOI partial indemnity costs of $450,000, all inclusive, from Blue Falls.

The court denied ASOI's claim for substantial indemnity costs, finding the defendants' conduct, while lengthening the proceeding, did not meet the "reprehensible" standard.

The court also rejected Blue Falls' argument that Rule 49.10(2) (offer to settle) applied to limit ASOI's costs, determining that ASOI's recovery at trial, including pre-judgment interest and reasonable costs up to the offer date, exceeded the defendants' all-inclusive offer.

Costs were not awarded between the other plaintiffs and defendants due to evenly divided success.

In a business divorce arising from the termination of a decade-long hot tub dealership arrangement, the court rejected claims of civil conspiracy, fraudulent misrepresentation, franchise liability, bad faith, and breach of restrictive covenant arising from a shareholder buyout and subsequent supply termination.

The court held that the governing relationship was an indefinite-term dealer agreement carrying an implied obligation of termination on reasonable notice, and that the dealer was not contractually bound to sell the manufacturer’s products exclusively.

Allegations that the dealer fundamentally breached the agreement by selling competing products and filing false warranty claims were not proven.

Applying distributorship reasonable notice principles, the court found that six months’ notice was required and awarded the dealer damages of $565,365 plus pre- and post-judgment interest.

All remaining claims and the counterclaim were dismissed.

During a trial regarding allegedly false warranty claims, the court made two evidentiary rulings.

First, the court found the plaintiffs breached the rule in Browne v. Dunn by failing to cross-examine a defence witness on evidence later adduced from customer witnesses to impeach him.

The court admitted the evidence but reserved the right to draw an adverse inference or adjust its weight.

Second, the court granted the defendants leave under Rule 53.08 to use an undisclosed document to cross-examine a plaintiff's witness, on the condition that the defendants recall their own witness to be cross-examined on the document.

During a trial, the defendants sought an order under Rule 53.02 of the Rules of Civil Procedure to tender the evidence of a software company representative by affidavit.

The plaintiffs objected, arguing the evidence was contentious and required cross-examination.

The court dismissed the request, finding the defendants failed to establish the evidence was uncontentious and noting the witness was available to testify virtually.

During a trial, the plaintiffs sought to admit an Industry Canada document into evidence under the public documents exception to the hearsay rule.

The defendants objected, arguing the document did not fit the statutory or common law categories of public documents.

The court dismissed the objection and admitted the document, finding it satisfied the four-part test for the public documents exception as it was prepared by a public official discharging a public duty, intended as a permanent record, and available for public inspection.

The applicant employee was terminated for theft of time.

His union grieved the termination, but the arbitrator upheld the discharge.

The union did not seek judicial review.

The applicant brought an application for judicial review on his own behalf.

The employer brought a motion to dismiss the application for lack of standing.

The Divisional Court granted the motion, finding that the general rule of union exclusivity applied.

Although the collective agreement gave the employee the right to pursue arbitration independently, he did not exercise that right, and therefore could not claim standing under the exceptional circumstances doctrine.

The plaintiff employer sued two former salespeople and their new employer for breach of fiduciary duty and breach of confidence after the employees resigned and began soliciting the plaintiff's customers.

The defendants brought a motion for summary judgment to dismiss the action.

The court found that the former employees were ordinary salespeople with no managerial power or discretion, and therefore were not fiduciary employees.

The court also found no evidence that the employees misappropriated or misused any confidential information.

The motion for summary judgment was granted and the action was dismissed.

This endorsement addresses the costs of a successful appeal and an original motion.

The plaintiff sought costs on a partial indemnity basis for the appeal and a substantial indemnity basis for the motion.

The defendants argued for costs to be reserved to the trial judge or payable in the cause, citing impecuniosity.

The court awarded the plaintiff costs for both the appeal ($12,500 on a partial indemnity basis) and the original motion ($17,500 on a partial indemnity basis), but ordered them payable after the trial has concluded, in any event of the cause.

The court declined to award substantial indemnity costs for the motion, finding the defendants' allegedly irrelevant evidence did not warrant a higher scale.

The plaintiff law firm sued its former client for unpaid legal fees.

Shortly after being served, the client granted a mortgage on her property to her former brother-in-law.

The plaintiff sought leave to issue a certificate of pending litigation (CPL) alleging a fraudulent conveyance.

The Master denied the CPL, finding insufficient evidence of fraudulent intent.

On appeal, the Superior Court found the Master erred in law by applying a higher standard of proof to the second part of the test for a CPL and usurping the function of a trial judge.

The appeal was allowed and the CPL was granted.

A court-appointed receiver sought directions regarding the distribution of proceeds from the sale of a property.

The Applicants, who held a second mortgage, claimed priority over the alleged first mortgagee, Pillar Capital Corporation, arguing that the first mortgage had been paid in full and therefore the subsequent assignment to Pillar Capital was a nullity.

The court found that the first mortgage was indeed paid in full on August 15, 2014, and there was no contemporaneous agreement to assign it.

Consequently, the May 5, 2015, assignment of charge to Pillar Capital was deemed a nullity.

The Applicants' claim for priority was upheld, and the Receiver was directed to pay the remaining amount due on the second mortgage from the sale proceeds.

Claims by Pillar Capital for property management fees, maintenance fees, and certain legal fees were rejected due to lack of proof and contractual basis.

The plaintiff, a law firm, moved for leave to amend its statement of claim to add a defendant and claims for a certificate of pending litigation (CPL) regarding a property.

The CPL was sought on the basis that a second mortgage granted by the defendant to her brother-in-law was a fraudulent conveyance or an unjust preference.

The court granted leave to amend the claim but denied the motion for a CPL, finding that the plaintiff failed to demonstrate a "high probability" of fraudulent intent or unjust preference, as required when judgment has not yet been obtained.

The court found sufficient consideration for the mortgage and no clear evidence of insolvency or intent to defraud.

The member, a registered nurse working in a correctional facility, admitted to professional misconduct for engaging in a personal and romantic relationship with a vulnerable, incarcerated client.

The member communicated with the client outside the therapeutic relationship, shared personal information, and sent him money.

The Discipline Committee accepted a joint submission on penalty, ordering a three-month suspension, an oral reprimand, and terms, conditions, and limitations on the member's certificate of registration, including meetings with a nursing expert and employer notification.

The appellant appealed an order varying a restraining order that permitted the sale of a property and directed the distribution of proceeds to a mortgagee.

The Court of Appeal quashed the appeal, finding that neither the Controlled Drugs and Substances Act nor section 490 of the Criminal Code provides a right of appeal from an order varying a restraining order in these circumstances.

The applicant mortgagee brought a motion to vary a restraint order under the Controlled Drugs and Substances Act to permit the sale of the subject property under power of sale.

The Crown consented to the sale, but the respondent owner opposed it, arguing the property had increased in value and disputing the mortgagee's claimed costs.

The court granted the motion to permit the sale, directing that the net proceeds be paid to the Crown.

The court declined to approve the mortgagee's claimed costs of over $388,000, directing that those funds be held by the Crown pending an assessment under Rule 58 and the final determination of the forfeiture proceedings.

In a complex Commercial List case management proceeding involving multiple condominium corporations, lenders, and other parties arising from alleged fraud related to loans arranged for condominium corporations, the court addressed whether a previously scheduled separate hearing of a threshold issue should proceed.

The threshold issue concerned whether certain loans were enforceable against the condominium corporations.

Several parties withdrew their earlier consent to bifurcate the proceedings under Rule 6.1.01 of the Rules of Civil Procedure.

The court held that, absent unanimous consent, it lacked jurisdiction to compel a separate hearing of the threshold issue and therefore cancelled the proposed hearing.

The court instead directed that the actions proceed expeditiously to a consolidated trial with a structured discovery process and encouraged mediation.