Mark A. Ross

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.

The plaintiff moved under Rule 59.06(2) to vary a prior timetable order and obtain additional time to ready a property transfer action for trial.

Applying by analogy the factors used on motions to set aside a registrar’s dismissal order, the court considered the explanation for delay, inadvertence, delay in bringing the motion, and prejudice.

The court accepted that serious mental health and addiction issues, language barriers, changes in counsel, and improved current supports provided a satisfactory explanation and amounted to exceptional circumstances.

Finding no evidence of prejudice to the defendants, the court granted a final timetable extension, dispensed with mandatory mediation, and ordered no costs.

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.

The appellant appealed a judgment declaring a mortgage granted by his brother, the estate trustee, to be valid and ordering the partition and sale of the family home.

The respondents cross-appealed the finding that the mortgage only bound the estate trustee's one-third interest in the property.

The Court of Appeal upheld the validity of the mortgage, finding the estate trustee had the legal right to grant it and the respondents were bona fide purchasers for value without notice.

The Court allowed the appeal regarding the Partition Act, as the respondents did not have a right to immediate possession.

The Court allowed the cross-appeal, holding that the mortgage bound the entire property because the will gave the estate trustee an unqualified power to postpone sale, preventing the property from vesting in the beneficiaries under the Estates Administration Act.

The appellant landlord appealed a trial judgment that found successive indemnifiers were not liable for increased rent during the extension period of a commercial lease.

The trial judge concluded that the indemnifiers were exposed to increased risk due to the higher base rent during the extension, which did not bind them.

The Divisional Court upheld the trial judge's decision, finding no error in his conclusion that the option to renew or extend the lease was neither exercised nor assigned, and therefore could not inform the reasonable expectations arising from the subsequent consent and indemnification agreement.

The appeal was dismissed.

The plaintiffs initiated steps to bring a motion to remove the defendants' lawyer for alleged conflict of interest and fraud, including requesting a case conference and setting a timetable.

On the deadline to serve their motion record, the plaintiffs indicated they were not proceeding.

The defendants sought costs for the abandoned motion.

The Master held that although no formal notice of motion or abandonment was served, the plaintiffs had 'made' a motion under Rule 37.09(1) by taking positive steps.

Costs were awarded to the defendants on a substantial indemnity scale due to the plaintiffs' unsubstantiated allegations of fraud and unprofessional communications.

The moving defendants sought to set aside an earlier ex parte order that imposed a Certificate of Pending Litigation (CPL) on several properties and included broad freezing and disclosure orders arising from allegations of a fraudulent real estate scheme.

The court held that a CPL may only be granted where the proceeding places an interest in land in question under s. 103 of the Courts of Justice Act.

Because the plaintiff’s claim sought only damages and did not assert a proprietary interest in the lands, the CPLs registered against several properties were discharged.

However, the court declined to set aside the remaining provisions of the earlier order, including asset-freezing and disclosure provisions, due to insufficient evidentiary record and the parties’ mutual delay in advancing the litigation.

The plaintiff’s cross-motion, including requests for summary judgment and bankruptcy-related relief, was adjourned sine die except for a refinancing-related request which was dismissed.

The applicants obtained a $1.5 million judgment against the respondent and sought to enforce a $350,000 mortgage he had placed on a property to secure the debt.

The respondent held the property as an estate trustee for his mother's estate, with himself and his two brothers as equal beneficiaries.

One brother brought a counter-application claiming sole ownership of the property based on an oral agreement with their late mother.

The court dismissed the counter-application, finding the oral agreement void under the Statute of Frauds and that the property interests had vested in the three brothers.

The court held the mortgage was valid but only enforceable against the respondent's one-third interest in the property, and granted the applicants the right to seek partition and sale.

The plaintiff subcontractor registered a claim for lien for concrete foundation work.

The defendants argued the lien was registered out of time.

The plaintiff claimed it attended the site on February 19, 2009, to cut ties and chip concrete, which would bring the April 6, 2009 registration within the 45-day limit.

The court found the February work was to rectify minor deficiencies and amounted to an attempt to bootstrap the claim for lien.

The court held the lien expired because the time for preservation began running when the substantive work was completed in November 2008.

A commercial landlord sought recovery of unpaid rent and damages from prior assignees and indemnifiers of a lease after the final tenant defaulted.

The defendants argued that subsequent assignments and amendments to the lease without their consent discharged their indemnity obligations.

The court held that mere assignment of the lease did not materially alter the risk to indemnifiers and did not release them.

However, a later amendment extending the lease at higher rent increased the indemnifiers’ risk and therefore terminated the indemnities after the original lease term ended.

The court awarded the landlord arrears owing as of the original expiry date, subject to credits for deposits and improperly handled chattels.

The appellant collection agency appealed a jury's assessment of $40,000 in general damages for slander.

The appellant's employee falsely represented himself as a lawyer to the respondent's employer, claiming a garnishment order had been issued against her.

The appellant argued the damages were patently excessive and should be reduced to $10,000.

The Divisional Court dismissed the appeal, finding that while the award was on the high side, it was not anomalous or wholly out of proportion, given the malicious nature of the call and the respondent's position handling cash at a bank.