Mark Harris Arnold

This costs endorsement addresses the aftermath of an application brought by Mehrzad Zarei against the Association of Families of Flight PS752 Victims.

The court dismissed Zarei’s application and considered the appropriate costs order, ultimately awarding the Association $50,000 in substantial indemnity costs for the period after a Rule 49 offer to settle, $5,000 on a partial indemnity basis for the period before the offer, and $4,862.62 in disbursements.

The court balanced the Association’s entitlement to costs with Zarei’s financial and emotional circumstances, staying enforcement of the order until Zarei collects any money from the government of Iran.

The applicant, a family member of a Flight PS752 victim, brought an application for an oppression remedy against the Association of Families of Flight PS752 Victims, alleging the Association failed to provide financial support, engaged in partisan activities, and withheld corporate documents.

The court dismissed the application, finding that the Association's board acted within its reasonable business judgment in interpreting its mandate and managing its affairs.

The court also noted the applicant failed to utilize available democratic processes within the Association to address his concerns, and that the evidence did not establish a violation of any reasonable expectation or oppressive conduct.

The applicant, Mehrzad Zarei, sought leave to withdraw his abandonment of an application against the Association of Families of Flight PS752 Victims.

Zarei had initially withdrawn the application but sought to reinstate it after receiving a substantial costs demand from the Association.

The court considered whether an abandoned application requires leave to proceed, particularly when no limitation period has expired.

Exercising its discretion, the court granted leave for the application to proceed, citing the absence of an expired limitation period, the applicant's post-traumatic stress disorder, the public importance of the matter concerning a not-for-profit corporation's operations, and the disproportionate nature of the initial costs demand.

The court reserved the issue of costs related to the abandonment for the final hearing on the merits and imposed a strict timetable for the proceeding.

The appellants, estates and family members of victims of the downing of Ukrainian Airlines flight PS752 by Iran, sought to enforce a default judgment against Iranian properties and bank accounts in Canada.

The motion judge dismissed the enforcement, finding the properties enjoyed diplomatic immunity.

The Court of Appeal upheld this decision, ruling that the Canadian Executive's determination, via a s. 11 certificate under the Foreign Missions and International Organizations Act, that the Iranian property retains diplomatic status is conclusive and not subject to judicial review based on the property's current "use" for diplomatic purposes, even after diplomatic relations were severed.

The court affirmed the Executive's exclusive prerogative in foreign relations and diplomatic immunity matters.

This endorsement addresses a motion for default judgment brought by family members of victims of the Ukraine International Airlines Flight PS 752 crash, which was downed by the Iranian Islamic Revolutionary Guard Corps.

The plaintiffs sought compensation for wrongful death, including damages under the Family Law Act, pain and suffering for the estates, and punitive damages.

The defendants did not defend the action.

The court consolidated this action with a previous, identical proceeding (Zarei v. Iran) and adopted Justice Belobaba's findings on liability (that the downing was an intentional act of terrorism) and the viability and quantum of damages.

The court also addressed preliminary procedural issues, granting orders to seal the court file, anonymize the plaintiffs' names due to fear of retribution, and appoint litigation administrators for the deceased estates.

The court awarded specific amounts for loss of guidance, care, and companionship, pain and suffering for each deceased victim's estate, and further punitive damages, reasoning that the prior punitive award in Zarei only sanctioned the wrongs against those specific victims, and a new award was necessary to punish the defendants for the torts committed against the present plaintiffs.

The plaintiffs, victims of the downing of Ukraine Airlines flight PS752, sought to enforce a default judgment against the Islamic Republic of Iran by seizing diplomatic properties and bank accounts in Canada.

The Attorney General of Canada intervened, relying on a certificate issued by the Minister of Foreign Affairs, Trade and Development, which certified the assets as diplomatic property enjoying immunity.

The court dismissed the plaintiffs' motion, affirming that the executive branch's determination of diplomatic status, as evidenced by the Minister's certificate under the Foreign Missions and International Organizations Act, prevents execution of the judgment against such property, consistent with appellate precedent.

The plaintiffs brought a motion seeking to amend and extend a prior default judgment (Zarei Action) to include new plaintiffs (Smith Action) and to obtain a declaration for a writ of seizure and sale against the defendants' diplomatic property.

The court dismissed the request to amend/extend the default judgment, holding that Rule 59.06 of the Rules of Civil Procedure does not permit adding new parties or causes of action not originally pleaded.

The court also found the enforcement request premature, as the default judgment had not yet been formally transmitted to the foreign state (Iran) as required by the State Immunity Act, and the 60-day period for Iran to challenge the judgment had not expired.

However, the court granted a sealing order for the unredacted materials of the new plaintiffs due to a credible fear of reprisal.

The plaintiff, Jinzhong Miao, sued his lawyer, Dheeraj Bhatia, and his firm, Madamser Law, for negligence and breach of contract concerning a real estate transaction.

The plaintiff sought to extricate himself from an Agreement of Purchase and Sale for a residential property, alleging the lawyer provided negligent advice by assuring him he could exit the deal.

The court found that the lawyer did not provide such a guarantee and that the plaintiff's credibility was compromised by his admitted misrepresentations about his financial circumstances.

The court concluded that the lawyer's conduct did not fall below the required standard of care and was not causative of any loss to the plaintiff.

The plaintiff's claim was dismissed.

The appellants, LMC 477R Corp. and Newstead Inc., appealed the dismissal of their oppression application under the Condominium Act, 1998, against Metropolitan Toronto Condominium Corporation No. 1046.

The application alleged oppressive conduct by the respondent in interfering with the appellant's parking facility operations and refusing good faith negotiations for a new parking agreement.

The Court of Appeal affirmed the application judge's decision, finding no error in the application of the oppression test or in the factual findings, and dismissed the appeal.

The applicant condominium corporation sought to amend its Declaration under section 109 of the Condominium Act, 1998, to address issues concerning wood-burning fireplaces and chimney flues.

Specifically, it requested amendments to designate chimney flues as exclusive use common elements, to shift the responsibility for their maintenance and repair from the corporation to the unit owners, and to redefine unit boundaries to include the entire length of the chimney flues.

The court granted the order to amend the Declaration to specify the chimney flues as exclusive use common elements, finding an error in the original Declaration's omission to specify such elements.

However, the court dismissed the requests to alter the maintenance and repair obligations, concluding there was no error or inconsistency in the existing mutual duties, and rejected the proposed redefinition of unit boundaries, finding the current description unambiguous.

The appellant appealed the dismissal of her application under the Condominium Act challenging the respondent condominium corporation's requirement that she renovate her unit to a luxury standard as a condition of remaining in the hotel rental pool.

The appellant also objected to the removal of her unit from the pool when she refused the renovations.

The Court of Appeal upheld the lower court's dismissal, finding no oppressive conduct by the respondent and confirming that the appellant could not remain in the pool without meeting the luxury standard while having the option to rent or use the unit residentially.

A condominium corporation issued a clean status certificate to the respondent when he purchased a unit in 2013.

When the respondent requested a new status certificate in 2016 to market the unit for sale, the corporation noted that the unit layout had been altered without Board consent, contrary to the declaration.

The respondent sought a declaration that the corporation was estopped from noting such matters in the subsequent certificate.

The application judge granted the relief sought, finding the corporation bound by its earlier clean certificate.

The Court of Appeal allowed the appeal, holding that while the corporation is bound by its earlier certificate as against the original purchaser, it is not estopped from disclosing newly discovered matters in subsequent certificates.

The corporation's obligation to disclose material information to prospective purchasers overrides any estoppel argument.

The applicant, a former unit owner, brought an application under sections 119 and 135 of the Condominium Act, 1998, alleging oppressive conduct and non-compliance with the condominium declaration by the respondent corporation regarding unit renovations.

The applicant had sold her unit prior to commencing the application.

The court dismissed the application, primarily finding that the applicant lacked standing as she was no longer an "owner" as defined by the Condominium Act at the time the application was brought.

The court also found no oppressive conduct or unfair disregard of the applicant's interests, and that the alleged non-compliance with the declaration regarding architect/engineer certificates for decorative renovations did not amount to a breach of contract or warrant a remedy.

This is a costs endorsement following an appeal and cross-appeal in a civil matter.

The respondents (Jarbeaus) were successful on the cross-appeal while the appellant (McLean) was unsuccessful on the appeal.

The court awarded costs to the Jarbeaus in the amount of $75,000, allocated as $18,000 to the cross-appeal and $57,000 to the appeal, inclusive of disbursements and applicable taxes.

The court declined to fix prejudgment interest or vary the trial costs award of $231,000.

The plaintiff, EcoConcepts Management Services Inc., and the third parties (former board members) each moved for summary judgment against Peel Condominium Corporation No. 260.

The dispute arose from the termination of EcoConcepts' management contract, which included a highly contentious termination clause requiring payment for the remainder of a five-year term.

Allegations of fabricated documents, improper board authorization, and bad faith were central to the defendant's counterclaim and third-party claim for contribution and indemnity.

The court dismissed both motions for summary judgment, concluding that genuine issues of material fact, particularly concerning credibility and the circumstances surrounding the 2013 Agreement's authorization, required a full trial for a fair and just determination.

The respondents purchased a defective new home from a builder and hired a negligent lawyer who failed to sue the engineer within the limitation period, incorrectly advising them they had no cause of action against the engineer.

After settling their first action, the respondents sued the lawyer for negligence.

The trial judge admitted the lawyer's negligence but characterized both the jury's damage assessments (cost to repair at $433,000 and diminution in value at $265,000) as perverse, awarded judgment for the lesser amount of $190,000 (after deducting the settlement amount), and significantly reduced the respondents' costs despite them bettering their settlement offer.

The Court of Appeal allowed the cross-appeal, finding the jury's assessments were not perverse, that damages should be awarded on a cost-to-repair basis at $433,000 without deducting the settlement amount, and that the respondents were entitled to substantial indemnity costs under Rule 49.10.

The plaintiff condominium corporation sued the developer and vendor for negligence and breach of warranty regarding HVAC system deficiencies.

The defendants and third parties moved for summary judgment, arguing the claim was statute-barred by the limitation period.

The court found a genuine issue requiring trial due to insufficient explanatory expert evidence regarding discoverability of the systemic defect versus localized leaks.

The motion for summary judgment was dismissed.

The defendant York Medical Group moved for security for costs against the plaintiff Proxema Ltd. under Rule 56.01(1)(d) of the Rules of Civil Procedure, requiring leave under s. 67(2) of the Construction Lien Act.

The court granted leave, finding the motion necessary due to Proxema's precarious financial position and its role as a nominal plaintiff pursuing litigation for the benefit of solvent subtrades.

The court determined that Proxema was a "shell corporation" with insufficient assets to cover a costs award.

Balancing the interests of preventing risk-free litigation by insolvent plaintiffs and avoiding prohibitive orders, and considering the existence of a counterclaim, the court ordered Proxema to pay $50,000 into court as security for costs, drawing an analogy to the $50,000 limit in s. 44(1)(d) of the Construction Lien Act for vacating a lien.

The defendant brought a motion requesting the Ontario court decline jurisdiction on the basis of forum non conveniens and permit the action to proceed in England.

The claim involved allegations of kidnapping, false imprisonment, assault, torture and threats arising from events in Iran, with plaintiffs residing in Ontario and the defendant asserting stronger ties to England.

Applying the framework from Club Resorts Ltd. v. Van Breda, the court considered comparative convenience, location of witnesses, ability to participate in proceedings, applicable law, and potential procedural advantages.

The court found the evidence inconclusive regarding the defendant’s ability to attend proceedings in either jurisdiction and held the defendant failed to establish that England was clearly the more appropriate forum.

The motion was therefore dismissed.

The court provided reasons for declining to award costs following a consent motion to set aside a default judgment.

The moving defendant established that the statement of claim had not come to his attention and that there had been no personal service, despite a prior order validating service that allowed the plaintiffs to obtain default judgment.

The court held that where a default judgment is irregularly obtained and the defendant had no notice of the proceeding, the judgment must be set aside ex debito justiciae and the defendant should not be required to pay costs.

The court further found the plaintiffs should not recover costs because they continued to oppose the motion despite evidence demonstrating the judgment would inevitably be set aside.

The court also reconsidered an earlier direction awarding costs thrown away and concluded that such costs should not be imposed where the defendant had not actually defaulted due to lack of effective service.