Mark A. Ross

The appellants appealed from a Superior Court judgment that enforced a term of Minutes of Settlement between the parties arising from a failed business arrangement and law practice shared between siblings.

The appellants raised two issues: (1) that the application judge erred in refusing to grant an adjournment, and (2) that the application judge erred in concluding that paragraph one of the Minutes of Settlement was a separate enforceable term.

The Court of Appeal dismissed the appeal, holding that the adjournment was properly refused and that paragraph one was indeed a separate enforceable obligation independent of other disputed amounts between the parties.

This decision addresses the costs arising from a prior ruling where Salvatore Benedetto was unsuccessful against 2453912 Ontario Inc. Benedetto argued for no costs, claiming the legal issue regarding deposit forfeiture under s. 21(4) of the Business Corporations Act was "novel." 2453912 Ontario Inc. sought costs, including substantial indemnity based on a Rule 49 offer to settle.

The court rejected the "novelty" argument, finding existing case law provided adequate guidance.

It also declined substantial indemnity, noting the Rule 49 offer lacked compromise and the underlying issue, while complex, presented reasonable uncertainty.

Partial indemnity costs of $10,000 were awarded to 2453912 Ontario Inc.

The defendants brought a motion for security for costs against the plaintiffs, seeking additional security for the discovery stage and for the period from discoveries to trial.

Previously, $45,000 in security had been ordered, with the court finding that 1636833 Ontario Inc. (833) had insufficient assets.

On this motion, the plaintiffs provided new, more comprehensive evidence of 833's financial condition, including significant bank balances, investment accounts, and revenue from an active business relationship.

The court found that 833 now demonstrated sufficient liquid and unencumbered assets in Ontario to satisfy a potential costs award, dismissing the defendants' motions for further security for costs.

The decision reiterated the limits of speculative inquiries into a company's future financial prospects on such motions.

The appellant sought an appeal of an order dismissing its application on the grounds of mootness.

The original application sought mandatory orders and an injunction to access certain data controlled by the respondent.

The parties reached a consent order permitting access to the data on the condition that the appellant pay outstanding fees to the respondent's lawyers on a without admission of liability basis.

When the appellant failed to make the payment by the stipulated date, the respondent brought a motion to dismiss the application, which the application judge granted on mootness grounds.

The appellant argued that the payment requirement was optional and that it should have been given a further opportunity to pay before dismissal.

The Plaintiffs sought default judgment against the self-represented Defendants for deficient cottage repairs and stolen items after the Statement of Defence was struck due to a "pattern of deliberate disengagement." The court found the Defendants in breach of contract for negligent work, particularly unauthorized staining and improper deck/railing repairs.

While liability was deemed admitted, damages had to be proven.

The court awarded damages for stain removal, partial staining costs, deck/railing repairs, an inspection report, and stolen items, but dismissed claims for full staining costs and return of all payments for deficient work, finding some claims unreasonable or unsupported.

The purchasers entered into an agreement of purchase and sale for a pre-construction condominium townhouse.

The vendor repeatedly rejected the purchasers' mortgage commitments and evidence of financial ability to close, eventually terminating the agreement and claiming forfeiture of the deposits.

The court found that the purchasers had complied with their financing obligations and that the vendor acted unreasonably and in bad faith, having secretly decided to convert the development into a rental property.

The court declared the agreement binding, ordered the return of the purchasers' deposits, and directed a trial on the issue of damages for loss of bargain.

Following a successful application for the rescission of a contract to purchase seat licenses due to misrepresentation, the applicant sought costs on the higher end of the partial indemnity scale.

The respondent argued for a lower amount based on its own costs outline and the simplicity of the issues.

The court found the respondent's position on the merits was entirely without merit and awarded costs on the higher end of the partial indemnity scale, but reduced the applicant's claimed hours by 30% for being excessive.

Costs were fixed at $21,948.35.

The appellant appealed from a motion judge's order denying her motion to set aside a summary judgment award of $466,420.22 granted against her for fraud and theft.

The appellant argued she was not properly served with the Statement of Claim and therefore lacked an opportunity to defend.

The Court of Appeal upheld the motion judge's decision to deny the motion to set aside, finding the appellant was responsible for failing to update her address for service and had actual notice of the proceedings.

However, the Court of Appeal found merit in the appellant's challenge to the quantification of damages and reduced the award to $289,740.39 by correcting three calculation errors relating to the appellant's fractional ownership interest in property and personal expense claims.

The appellant lender advanced a mortgage secured by a commercial property in Kingston, Ontario, paying off a prior first mortgage and tax arrears but not the respondent's second mortgage.

When the borrower defaulted and the property was sold under power of sale, the appellant claimed priority over the respondent's mortgage based on equitable subrogation.

The motion judge granted summary judgment in favour of the respondent, finding that the appellant knew the respondent would not postpone her mortgage and that it would be inequitable to grant subrogation for a mortgage more than double the value of the one replaced.

The Court of Appeal dismissed the appeal, upholding the motion judge's discretionary decision to deny equitable subrogation.

This case conference endorsement addresses several procedural matters in related actions between Mr. Gerstel and Mr. Berkovits.

The court ordered peremptory examinations for discovery dates and scheduled a future case conference for trial management.

A key issue addressed was Mr. Gerstel's request for particulars regarding Mr. Berkovits's possession of documents sealed in Mr. Gerstel's matrimonial proceedings.

The court declined to order Mr. Berkovits to explain how he obtained the documents, reiterating that a sealing order only prevents public access from the court file and does not imply a confidentiality injunction preventing others from possessing or transmitting them.

The court emphasized that the admissibility of such documents was not currently in issue and there was no free-standing burden on a plaintiff to explain the origin of documents listed in an affidavit of documents.

The plaintiffs brought a motion for a Mareva injunction against the defendants regarding the sale of a property, alleging a risk of asset dissipation.

The motion was adjourned to allow the plaintiffs to address concerns about damages and the legitimacy of the defendants' new property purchase.

After receiving satisfactory answers, the plaintiffs decided not to proceed with the injunction.

The court dismissed the motion, finding the plaintiffs had a reasonable basis to bring it initially, but the defendants' uncooperative conduct unnecessarily increased costs.

Despite the defendants winning the dismissal of the injunction, the court ordered each party to bear their own costs due to the defendants' evasiveness and their counsel's aggressive and unhelpful responses to reasonable inquiries.

The defendant landlord brought a motion for summary judgment to dismiss the plaintiffs' action for wrongful termination of a commercial lease.

The defendant argued that the corporate plaintiff was not a party to the lease and the personal plaintiff could not claim damages suffered by the corporation under the rule in Foss v. Harbottle.

The court found that while the current pleadings did not support an independent claim for the personal plaintiff, dismissing the action would allow the defendant to escape liability for an alleged breach.

The court adjourned the motion for two months to allow the plaintiffs to amend their statement of claim.

The Applicant and Respondent, joint owners of a family business, brought competing applications to wind up the corporation and for an accounting.

Following an order for the business sale and an accounting, the parties sought costs.

The Applicant requested substantial indemnity costs of $50,202.35, while the Respondent sought partial indemnity costs of $17,243.58.

The court found that success was divided and that a punitive costs award was not justified.

The court fixed costs at $25,000, to be "in the cause" of the ongoing accounting or arbitration.

Following reasons for decision on a motion concerning undertakings and security for costs in a simplified procedure action, the court addressed the issue of costs.

The moving parties had succeeded on the motion but obtained a reduced form of the relief originally sought, including a lower amount of security for costs.

Applying the factors in Rule 57.01 of the Rules of Civil Procedure, the court found that the moving parties achieved partial success and that the motion was not complex.

The court fixed partial indemnity costs payable by the responding party and also directed the form in which security for costs must be posted.

Beneficiaries of an estate brought a contempt motion against the estate trustee for failing to comply with a prior court order requiring disclosure of the nature and value of estate assets at the date of death.

Despite repeated requests and a formal order directing production of a statement of assets, the estate trustee failed to provide the required information and instead relied on counsel’s narrative letter that did not meet the order’s requirements.

Applying the three-part test for civil contempt, the court found the order was clear, the trustee deliberately failed to comply, and contempt was proven beyond a reasonable doubt.

The court ordered the trustee to purge the contempt by filing a proper statement of assets, preparing full estate accounts, producing supporting vouchers and legal accounts, and providing a statement of compensation.

Costs were ordered personally against the estate trustee.