Marie-Andrée Vermette

This endorsement addresses costs following a partially successful Mareva injunction motion.

The Plaintiffs sought substantial indemnity costs against the Defendant Koukia, having succeeded in part against her but failing against the other defendants (Estate and PersTile Inc.).

The court found Koukia's conduct reprehensible and her evidence untruthful, justifying substantial indemnity costs.

However, considering the Plaintiffs' partial success and the limited scope of the injunction obtained, the court awarded one-third of the Plaintiffs' legal fees and half of their disbursements, totaling $7,913.79, to be paid by Koukia within 30 days.

The applicant sought to exclude evidence (a loaded handgun and drugs) found in a hidden compartment of a vehicle during a search, arguing that the search warrant lacked reasonable grounds for weapons and that the search continued after the warrant's expiration.

The court found that while the search warrant did not establish reasonable grounds to search for weapons, thus breaching the applicant's section 8 Charter rights regarding the "gun dog" search, the search itself was not unauthorized by law due to its duration, applying the principle that a search commenced within the warrant's timeframe can continue until completion.

Applying the Grant test under section 24(2) of the Charter, the court determined that despite the Charter breach, the evidence should be admitted.

The court reasoned that the state conduct was at the less serious end of the spectrum, the impact on the applicant's privacy was attenuated by other valid search grounds, and society's interest in adjudicating serious charges outweighed the breach.

The application to exclude evidence was dismissed.

The applicants, charged with drug trafficking and firearms offences, brought a Charter application alleging that warrantless police entries into the common areas of their condominium building to conduct surveillance violated their section 8 rights.

The police used observations from this surveillance to obtain a search warrant for the applicants' unit.

The Superior Court of Justice found that while the first entry to ascertain the applicants' address did not violate section 8, the second entry to confirm drug trafficking activities in the hallway did, as the applicants had a reasonable expectation of privacy.

Applying the Grant test under section 24(2), the court excluded the evidence found in the unit, concluding that the police showed reckless disregard for Charter standards and the impact on the applicants' privacy was significant.

The defendants, Shane Smith and Nadine Smith, successfully moved to set aside a noting in default.

The plaintiff, Norman Wong, had initiated the action alleging fraudulent conveyance.

The Smiths were noted in default after failing to file a Statement of Defence, despite having served an affidavit of documents.

The court found that the delay was excusable due to confusion and previous counsel's health issues, that the plaintiff would not suffer non-compensable prejudice, and that the Smiths had an arguable defence with an "air of reality" regarding the fraudulent conveyance allegations.

The decision emphasized the strong preference for deciding civil actions on their merits.

The defendant, Copart Canada Inc., brought a motion to strike the plaintiff, Filler Depot's, Statement of Claim in its entirety or in part.

The defendant argued that the plaintiff failed to plead material facts and essential elements for claims based on unlawful means tort, oppression, conspiracy, deceit, fraudulent misrepresentation, civil fraud, and breach of fiduciary duty.

The court agreed, finding these causes of action were not properly pleaded.

The court also addressed a recusal motion brought by the plaintiff's counsel, which was dismissed as lacking grounds.

The court ordered the plaintiff to deliver a Fresh as Amended Statement of Claim within 30 days, striking the improperly pleaded claims with leave to amend.

This case involved two cross-applications arising from a failed residential real estate transaction.

The buyers (Adusei and Gruenberg) sought relief from forfeiture of their $90,000 deposit, while the sellers (Ravindra and Manogaran) sought a declaration that the buyers breached the agreement of purchase and sale (APS), release of the deposit, and damages.

The court found that the buyers breached the APS and that the sellers were ready, willing, and able to close.

The buyers' argument that damages should be assessed at an earlier date due to anticipatory repudiation was rejected, as the sellers had affirmed the contract.

The court concluded that the sellers were entitled to the $90,000 deposit and an additional $110,000 in damages, representing the difference between the APS price and the property's market value on the closing date.

The buyers' application for relief from forfeiture was dismissed.

The applicant sought an order for the forfeiture of a $62,000 deposit from the respondent assignee, Ke Ma, and its release from the brokerage, Homelife Best Choice Realty Inc., Brokerage, following the non-completion of an assignment agreement for a pre-construction property.

The court found that while the applicant failed to fully satisfy a condition precedent (obtaining the vendor's written consent in the required form), the respondent assignee breached her contractual obligation to cooperate by failing to communicate objections to the vendor consent form in a timely manner.

This breach prevented the condition from being cured and fulfilled.

Consequently, the respondent's default led to the forfeiture of the deposit as per the terms of the assignment agreement.

The plaintiff, a 54-year-old investment advisor with 24 years of service, was dismissed without cause.

During discovery, the defendant learned the plaintiff had copied confidential client emails to a personal USB key and alleged after-acquired cause.

The court found the misconduct was a lapse in judgment that did not warrant dismissal.

The court awarded a 24-month notice period and damages for lost commissions.

However, the court dismissed the plaintiff's claims for damages for the lost opportunity to sell her book of business, finding she failed to prove she would have retired and sold it during the notice period, and dismissed her claim for bad faith damages.

The appellants appealed an arbitrator's costs award under section 45 of the Arbitration Act, 1991.

The arbitrator had awarded the respondent its full legal expenses, including fees paid to its corporate counsel for 'litigation support'.

The court first determined that leave to appeal an arbitral costs award is not required under section 133(b) of the Courts of Justice Act, as that provision applies only to courts.

On the merits, the court found that the arbitrator did not err in principle or act plainly wrong in awarding full indemnity costs, noting that the Arbitration Act does not bind arbitrators to the scales of costs in the Rules of Civil Procedure.

The court also upheld the arbitrator's decision to allow recovery of the litigation support fees.

The appeal was dismissed.

The applicants brought a motion for an interlocutory injunction in an oppression application to preserve their alleged shareholdings in a startup company and restrict the respondents' use of corporate assets.

The respondents brought a cross-motion to convert the application into an action and consolidate it with their own action against the applicants.

The court dismissed the applicants' motion, finding they failed to establish a strong prima facie case for specific performance regarding the issuance of shares and failed to show irreparable harm.

The court granted the respondents' cross-motion, ordering the application to proceed as an action and be consolidated or heard together with the respondents' action, given the overlapping issues, disputed material facts, and need for discoveries.

Following the dismissal of the plaintiff's action against the Toronto Police Services Board and an individual officer, the defendants sought costs.

The defendants requested a significantly reduced amount of $25,000 on a partial indemnity basis, down from their actual partial indemnity costs of over $207,000, to account for the self-represented plaintiff's financial circumstances.

The plaintiff did not provide costs submissions.

The court found the requested amount reasonable and ordered the plaintiff to pay $25,000 in costs.

Following a finding of civil contempt against the corporate defendant for failing to provide a court-ordered accounting regarding a mortgage, the court held a sentencing hearing.

The court found the defendant's subsequent attempt to purge its contempt was inadequate and obfuscating.

Applying the principles of proportionality and deterrence, the court declined to strike the statement of defence but imposed a $25,000 fine, holding the corporation and its directing mind jointly and severally liable.

The court also ordered full indemnity costs of $24,000 and directed the production of specific banking records.

Following the dismissal of the plaintiff's action for failing to attend an examination for discovery, the defendant sought costs on a substantial indemnity basis.

The self-represented plaintiff made unsubstantiated allegations of fraud against the defendant's counsel and filed a complaint against the judge.

The court found the plaintiff's conduct since August 2021 to be reprehensible, vexatious, and unnecessarily lengthening the proceeding.

The court awarded the defendant costs of $47,000, reflecting substantial indemnity costs for the period after August 2021 and partial indemnity costs prior to that date.

This endorsement addresses the costs of an unsuccessful motion for summary judgment brought by the Plaintiffs against the Defendant David Ryan.

The Defendant sought partial indemnity costs of over $100,000.

The Plaintiffs argued for costs to be reserved to the trial judge or fixed at $25,000, asserting that much of the work done for the motion would be reusable at trial.

The court found that the Plaintiffs should have realized the case was not suitable for summary judgment and that a significant portion of the work would not be reusable.

The court awarded the Defendant $60,000 in all-inclusive costs, payable within 30 days, but reserved the issue of expert report disbursements to the trial judge, acknowledging their potential reusability.

The applicant sought recognition and enforcement in Ontario of a default judgment granted by a Belgian court against the respondent for unpaid invoices.

The court found that the Belgian judgment met the criteria for recognition (competent jurisdiction, final, definite sum).

The respondent attempted to raise defenses of lack of natural justice (improper service, no opportunity to defend due to COVID-19 travel restrictions and lack of notice of rescheduled hearing), fraud, and public policy.

The court dismissed these defenses, finding that adequate notice was given and that the respondent failed to prove fraud or that the Belgian law was contrary to Canadian public policy.

The application for recognition and enforcement was granted.

The applicant sought recognition and enforcement of a Chinese arbitral award under the UNCITRAL Model Law on International Commercial Arbitration.

The respondent requested an adjournment to gather evidence to oppose enforcement, alleging procedural irregularities and denial of natural justice during the arbitration.

The court denied the adjournment, citing the respondent's lack of diligence, the insufficient evidentiary basis for the alleged grounds, and the apparent lack of merit in the proposed arguments, which often sought to re-argue the arbitration's merits.

The court then granted the application, recognizing and enforcing the award, and ordered the respondent to pay costs to the applicant.

The plaintiffs sought partition and sale of a family property, while the defendant counterclaimed for a resulting trust, asserting 100% beneficial ownership, and reimbursement for property work.

The court dismissed the defendant's resulting trust claim, finding he failed to prove he contributed more than 50% of the purchase price and that the claim was statute-barred.

The court granted the plaintiffs' request for partition and sale, finding no grounds for refusal.

The defendant's claims for past work were largely dismissed as statute-barred, except for a recent invoice for waterproofing.

The Plaintiffs sought a Mareva injunction against their deceased son's estate, his company, and his common-law spouse, alleging fraud and misappropriation of funds.

The court dismissed the motion against the Estate and the company due to insufficient evidence and procedural issues (lack of appointed estate trustee, uncorroborated evidence under the Evidence Act).

However, the motion was granted in part against the common-law spouse, Rounak Farrokhi Koukia, specifically for e-transfers made from the Plaintiffs' accounts after the son's death, finding a strong prima facie case of unjust enrichment and a real risk of dissipation.

The Mareva injunction against Ms. Koukia was limited to $40,000.

The plaintiff, a declared vexatious litigant, commenced a civil proceeding without obtaining prior leave from a judge of the Superior Court of Justice, in violation of a previous court order.

The court issued a notice under Rule 2.1.01 of the Rules of Civil Procedure considering the dismissal of the action.

After reviewing the plaintiff's written submissions, the court concluded that the proceeding constituted an abuse of process and dismissed it.

The applicant, Vento Motorcycles, Inc., sought to set aside an arbitral award rendered by an ICSID tribunal, alleging two grounds: inability to present its case due to the tribunal's refusal to allow a witness to testify in response to impeachment evidence, and reasonable apprehension of bias by one of the arbitrators due to undisclosed offers of future appointments from the respondent.

The court dismissed the application, finding that Vento was able to present its case and that while a reasonable apprehension of bias existed for one arbitrator, it did not undermine the reliability of the unanimous award or produce real unfairness, especially given the collegial nature of the tribunal and the significant prejudice of redoing the arbitration.