Marc A. Munro

This decision resolves a dispute over the distribution of net proceeds from the sale of the Boundary Lake Property, an asset of Maple Pond Farm Limited.

The plaintiff, Gordon Vellenga, sought equal division of the proceeds between himself and Peter Boersma, the two shareholders.

The defendants, including Weijs Investment Corp., sought priority reimbursement for various claims before any distribution.

The court found most of the defendants’ claims barred by res judicata, issue estoppel, or limitations, except for property taxes paid on the property.

The court ordered equal division of the proceeds, with a credit to Weijs Investment for property taxes paid.

This costs decision follows a lengthy guardianship and estate litigation between Edi Ferritto and her brother, Alfredo Ferritto, regarding their mother Lucia Ferritto.

The court reviews the procedural history, the parties' conduct, and the applicable legal principles for awarding costs.

Edi Ferritto, as the successful party, is awarded substantial indemnity costs for the trial and partial indemnity costs for the applications and motions, with certain reductions.

The decision details the calculation of fees and disbursements, and the rationale for the scale of costs awarded.

This is an appeal by the defendants from an Associate Justice's order that dismissed their request to strike certain paragraphs from the Statement of Claim.

The impugned paragraphs alleged bad faith contractual performance by the defendants, specifically referencing an alleged campaign to damage the plaintiff, including encouraging a false accusation of sexual assault, following the plaintiff's departure from their accounting firm.

The defendants also sought to strike paragraphs related to "departure negotiations" on the basis of settlement privilege.

The court dismissed the appeal, affirming that the allegations of bad faith contractual performance were viable under Bhasin v. Hrynew and that the correspondence regarding departure negotiations was not presumptively privileged without evidence of intent to settle.

This case involves competing applications concerning the estate of Ignazia Rizzo, where her three children were named as co-executors and beneficiaries.

The primary dispute arose from the will's provision for Salvatore Rizzo to purchase the family home at fair market value, leading to a deadlock over the sale price and the allocation of estate taxes and expenses.

Angela Farruggia, one of the siblings, insisted on receiving her share net of taxes, contrary to the will and a prior agreement, and linked her renunciation as trustee to this demand.

Angela brought an application seeking the sale of the house and occupation rent from Salvatore, while Salvatore and Eduardo Rizzo applied for Angela's removal as estate trustee.

The court dismissed Angela's application, finding she lacked standing as a beneficiary to compel sale or claim occupation rent, as her interest was in the residue, not a direct property interest.

The court granted Salvatore and Eduardo's application, removing Angela as estate trustee due to her unreasonable conduct, changing positions, and conflict of interest in leveraging her trustee position for a greater share of the estate.

Salvatore and Eduardo were authorized to administer the estate in accordance with the will.

The plaintiff, Angelo Ricci, sought leave to amend his statement of claim to reduce damages from $500,000 to $200,000 to proceed under Simplified Procedure, citing financial inability to afford a long trial.

The defendant, Credential Securities Inc., opposed, arguing lack of changed circumstances and prejudice to its defence.

The court granted leave, holding that an amendment reducing damages to the Simplified Procedure threshold mandates transfer to that procedure, and that the defendant failed to prove non-compensable prejudice.

The court awarded specific costs related to discovery time to the defendant, and costs of the motion to the plaintiff.

The appellants sought to appeal the dismissal of their motion to stay the action and, for one appellant, the trial judgment finding conspiracy, joint and several liability, disgorgement of profits, and punitive damages.

The trial judge had found that a former supervisory employee breached his fiduciary duty by securing construction work for his own companies, accruing over $10 million in profits, and that his common-law wife was deeply involved.

The Court of Appeal dismissed the appeals, finding no basis for appellate intervention.

The court held that the appeal of the stay motion dismissal was not properly before it due to a failure to appeal the original order within the prescribed deadline.

The court also found no error in the trial judge's factual findings regarding the conspiracy and disgorgement.

The respondent moved to convert an application into an action, arguing material facts were in dispute regarding a trust agreement for a property.

The applicant opposed, asserting no material facts were in dispute concerning the trust's existence and seeking its enforcement.

The court dismissed the motion to convert, finding sufficient clarity on the trust issue from the record.

The court declared the trust agreement valid and enforceable, ordering 70% of the net proceeds from the property sale to be released to the applicant.

A trial of an issue was ordered to determine any reimbursements owed to the respondent for property expenses incurred from purchase to sale, pursuant to the trust agreement.

The plaintiffs, purchasers of a dental clinic, sought an interlocutory injunction to enforce non-competition and non-licensing obligations against the defendants, the former clinic owner and his corporations.

The plaintiffs alleged breaches of a 15-kilometre non-competition clause and a five-year restriction on using the "Smile Stylist" brand name within the Greater Toronto Area (GTA), stemming from the defendants opening a new clinic within the restricted zone and misusing the former clinic's website for marketing.

The court applied the RJR-MacDonald test, finding a strong prima facie case for breach of the non-competition and branding covenants, irreparable harm to the plaintiffs, and that the balance of convenience favored granting these injunctions.

However, the court denied the request for control over the "thesmilestylist.ca" domain and related accounts, as the licensing term had expired and the plaintiffs had rebranded, negating irreparable harm for that specific relief.

The defendants brought a motion to strike various paragraphs from the plaintiff's statement of claim, alleging they were prejudicial, scandalous, frivolous, vexatious, or an abuse of process.

The plaintiff's action arose from his acrimonious departure from an accounting partnership, seeking an accounting, declarations of bad faith and oppressive conduct, and damages.

The motion sought to strike paragraphs related to a request for trial together with a civil assault action, allegations of reprisal and false sexual assault claims, a complaint filed with CPA Ontario, and the nature of departure negotiations.

The court dismissed the motion to strike paragraphs concerning the request for trial together and the reprisal/assault allegations, finding they could support a claim for breach of the duty of good faith.

However, the court granted the motion in part regarding the CPA Ontario complaint, striking those references due to inadmissibility under the CPA Ontario Act and public policy protecting regulatory complaints.

The motion to strike paragraphs on departure negotiations was also dismissed, as the defendants failed to prove settlement privilege and the allegations could support a breach of contract claim.

Due to mixed success, each party was ordered to bear their own costs.

This appeal concerned the correct approach to defamation and civil conspiracy pleadings in the context of a motion to strike.

The Divisional Court had struck out the defendant's counterclaim, finding it lacked particularity.

The Court of Appeal allowed the appeal, holding that the Divisional Court misapplied the modern, flexible approach to pleadings and failed to read the pleadings generously.

The Court of Appeal reinstated the motion judge's decision, which had dismissed the motion to strike, emphasizing the high bar for striking pleadings and the deference owed to motion judges.

The defendants brought a motion seeking joinder of three separate actions initiated by the plaintiff, 2209509 Ontario Inc. operating as Norfolk Fairway Estates, concerning claims for "extras" on new home constructions.

They also sought an order for security for costs.

The plaintiff opposed both requests.

The court granted the joinder, finding common questions of law and fact across the actions and that joinder would promote the convenient administration of justice.

The court also granted the order for security for costs, determining that the plaintiff, an amalgamated corporation, had not sufficiently demonstrated it possessed exigible assets in Ontario to cover potential costs.

This appeal concerned a dispute between cousins over their aunt's will, specifically regarding the Testatrix's testamentary capacity when she executed a 2007 will.

The appellant argued the application judge erred in finding capacity without sufficient evidence and challenged the costs award.

The Court of Appeal upheld the application judge's decision, finding no palpable and overriding error in the assessment of evidence regarding testamentary capacity.

The court affirmed the application judge's discretion to discount expert evidence based on a biased factual summary and found ample evidence to support the Testatrix's capacity.

The appeal on costs was also dismissed, as the appellant failed to demonstrate an error in principle or that the award was plainly wrong, noting that the absence of dockets is not an automatic bar to cost recovery.

Following a successful summary judgment motion for defamation and the dismissal of the defendant's anti-SLAPP motion, the plaintiff sought costs.

The plaintiff had made multiple offers to settle for significantly less than the $50,000 damages awarded at trial.

The court considered the offers to settle, the principles of proportionality, and the statutory provisions regarding costs for anti-SLAPP motions.

The court fixed costs payable by the defendant to the plaintiff at $50,000 all-inclusive.

The appellants appealed the motion judge's order striking their statement of claim and amended statement of claim against the Law Society of Upper Canada as disclosing no reasonable cause of action.

The appellants alleged that the Law Society's practice of requiring lawyers facing negligence claims to provide client files to the professional indemnity insurer violated confidentiality, privacy, and solicitor-client privilege.

The motion judge struck the pleadings without leave to amend, finding that section 9 of the Law Society Act provides statutory immunity for actions taken in good faith in the performance of statutory duties.

The appellants did not plead bad faith, which is necessary to overcome the statutory immunity.

The appeal was dismissed.

The plaintiff, Dr. Dick Eric Zoutman, brought a motion for summary judgment in a defamation action against James Graham, who had posted defamatory comments about Dr. Zoutman on online physician rating websites.

Graham brought a cross-motion for anti-SLAPP relief.

The court dismissed Graham's anti-SLAPP motion, finding it was brought too late and that Graham failed to acknowledge authorship of most impugned statements.

The court granted summary judgment to Dr. Zoutman, finding the postings defamatory, published, and made with malice.

Graham's defence of fair comment failed due to false factual premises and malice.

Dr. Zoutman was awarded $25,000 in general damages and $25,000 in aggravated damages, totaling $50,000, and a permanent injunction against Graham.

This endorsement addresses the costs arising from a prior judgment (2019 ONSC 19) where the plaintiff, Harry Pohl, was successful.

The court awarded costs on a partial indemnity basis, considering the complexity of the eleven-day trial, the proportionality of the award to the judgment amount of $225,297.20 (plus interest), and the conduct of the parties.

Specific deductions were made for costs related to a dismissed party (Karen Palisca) and certain disbursements, including excessive witness fees and litigation software deemed office overhead.

Disbursements for IT services to recover company data were allowed as necessary for the proceeding.

The appellant obtained a default judgment in South Carolina in August 2014 against the respondent, a resident of Ontario.

The appellant commenced an enforcement action in Ontario in December 2017, more than three years later, claiming it did not know the respondent had assets in Ontario until October 2017.

The motion judge set aside the Mareva injunction granted ex parte, finding the enforcement action was statute-barred under the Limitations Act, 2002.

The Court of Appeal upheld this decision, holding that the two-year limitation period began to run 30 days after the foreign judgment was entered, when the time to appeal expired.

The court rejected arguments that appeals by co-defendants postponed the limitation period and that the appellant lacked knowledge of the respondent's Ontario assets.

The plaintiff, Harry Pohl, sued the defendants for breach of contract, wrongful dismissal, and oppression under the OBCA, following the sale of his company, Die-Metric Tool Inc. (DMT), to corporations controlled by Walter Palisca.

The defendants counterclaimed for breach of contract.

The court dismissed Pohl's claims for breach of contract (regarding the $1.5M sale price) and wrongful dismissal, and also dismissed the defendants' counterclaim.

However, the court found that Walter Palisca, as director and controlling mind, breached his statutory duty to DMT and the common law duty of honest performance by improperly diverting $225,297.20 of DMT's funds (from a bankruptcy settlement) to affiliated companies (PTL and PS) and for personal legal fees, to the detriment of DMT and Pohl as a personal guarantor.

The court also found oppression under s. 248(2) of the OBCA.

Judgment was awarded to Pohl against Walter Palisca, Palcam Technologies Ltd., and Palcam Solutions Inc. (and/or 1401763 Ontario Inc.) jointly and severally for $225,297.20.

The case involved two consolidated applications concerning a shared sewer pipe between two adjacent properties, 52 James Street (owned by Margot J. Olivieri) and 54 James Street (owned by the Estate of Julie Valvasori, represented by Joan Henry).

Olivieri sought a declaration of a permanent prescriptive easement for the sewer line running from 52 James through 54 James to the city sewer, and damages for the Estate's interference with it.

The Estate sought a declaration that the pipe was trespassing and an order for its removal, requiring 52 James to establish its own sewer connection.

The court found that a prescriptive easement existed in favour of 52 James.

However, it limited the ancillary rights associated with the easement, denying Olivieri broad rights to alter the pipe or unrestricted entry.

The court awarded Olivieri $3,467.92 in damages for the Estate's unlawful capping of the pipe, offset by $480.09 owed by Olivieri for shared sewer maintenance.

The Estate's application to remove the pipe was dismissed.

The case involved two consolidated applications concerning a shared sewer pipe between two adjacent properties, 52 James Street (owned by Margot J. Olivieri) and 54 James Street (owned by the Estate of Julie Valvasori, represented by Joan Henry).

Olivieri sought a declaration of a permanent prescriptive easement for the sewer line running from 52 James through 54 James to the city sewer, and damages for the Estate's interference with it.

The Estate sought a declaration that the pipe was trespassing and an order for its removal, requiring 52 James to establish its own sewer connection.

The court found that a prescriptive easement existed in favour of 52 James.

However, it limited the ancillary rights associated with the easement, denying Olivieri broad rights to alter the pipe or unrestricted entry.

The court awarded Olivieri $3,467.92 in damages for the Estate's unlawful capping of the pipe, offset by $480.09 owed by Olivieri for shared sewer maintenance.

The Estate's application to remove the pipe was dismissed.