Mark van Zandvoort

The plaintiff sought costs following a successful motion for leave to examine a non-party pursuant to Rule 31.10.

The plaintiff claimed partial indemnity costs of $19,926.08, arguing the motion was necessary due to the non-party's refusal to cooperate.

The non-party opposed the costs award, contending that as a non-party he had no obligation to consent and that the relief sought was overly broad.

The court awarded costs to the plaintiff as the successful party, finding the motion was necessary and the non-party's lack of cooperation justified the motion.

Costs were fixed at $17,500 on a partial indemnity basis, inclusive of disbursements and taxes.

The court-appointed Receiver of The Lion's Share Group Inc. (LS), a real estate investment company in insolvency, sought an order declaring certain promissory notes as valid charges on real property, requiring their registration, and expanding the receivership to include The Windrose Group Inc. The promissory notes, issued by LS to borrowers, included provisions for registration on title upon default, but the Land Registry Office required a court order.

Objecting noteholders requested an adjournment due to short service.

The court granted the Receiver's requests, finding the notes created equitable mortgages and that the matter was urgent due to the risk of asset dissipation.

The court also approved the expansion of the receivership and the Receiver's First Report, while providing a comeback hearing for affected parties to address any prejudice.

The appellants appealed a summary judgment granted to TD Bank on a loan and guarantees.

The appellants argued the motion judge erred by allowing a non-party to testify in a mini-trial, making findings of fact relevant to a third-party claim, and granting summary judgment before the third-party claim was determined.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's exercise of enhanced powers under Rule 20.04(2.2) or in granting summary judgment, as the third-party claim was separate and the appellants had opportunities to join it.

The defendants, Borden Ladner Gervais LLP and Robb McNaughton, brought a motion to stay an Ontario action initiated by the plaintiff, Pesorama Inc., on the basis of forum non conveniens.

The defendants argued that a forum selection clause in the retainer agreement between the parties stipulated Alberta as the exclusive jurisdiction for disputes.

The court applied the two-step test for enforcing forum selection clauses, finding the clause valid, clear, and applicable.

It determined that Pesorama Inc. failed to demonstrate "strong cause" to override the clause, particularly given the sophisticated nature of the parties and the commercial context of the dispute.

The court also noted the ongoing taxation process in Alberta and the inefficiency of parallel proceedings.

The motion was granted, and the Ontario action was stayed, allowing the plaintiff to pursue its claim in Alberta.

The plaintiff bank brought a motion for summary judgment against a corporate borrower and its guarantors after the borrower defaulted on a loan and was placed into receivership.

The defendants argued they were induced to sign the guarantees by misrepresentations from their lawyer, who also acted for the bank, regarding the priority of the bank's security interest.

Using enhanced fact-finding powers to hear oral evidence, the court found the defendants' evidence lacked credibility and that no misrepresentations were made.

The court held the guarantees were absolute and unconditional, and granted summary judgment to the plaintiff for the outstanding loan amount.

The respondents (Purchaser) brought a motion to stay an application by the applicant (Vendor) for production of documents related to post-closing adjustments in a share purchase agreement.

The core issue was whether a clause in the SPA, which referred unresolved matters to an "Independent Accountant" for a binding determination, constituted an arbitration agreement under the Arbitration Act, 1991, or merely an expert determination clause.

Applying the indicia from Sport Maska Inc. v. Zittrer, the court found that the clause was an arbitration agreement because it involved a formulated dispute, required the Independent Accountant to exercise a judicial function based on party submissions, and resulted in a final and binding decision.

Consequently, the court granted the stay of the Production Application, holding that all issues related to the working capital adjustment, including document production, should be determined by the Independent Accountant (arbitrator) in the first instance.

Following a successful appeal, the appellant sought costs for the appeal and the proceeding below.

The respondent disputed the amount claimed for disbursements, specifically the fees of the appellant's experts.

The Court of Appeal held that expert fees are subject to a reasonableness test and reduced the claimed disbursements, noting the experts were not called to testify and their fees were significantly higher than those of the respondent's experts.

The court awarded the appellant fixed costs for both the appeal and the proceeding below.

The City of Ottawa appealed a trial judgment that found it liable for negligent misrepresentation to Charlesfort Developments Limited.

Charlesfort claimed the City failed to accurately inform it about a water main in an easement during a rezoning process, leading to significant project delays and increased costs for a condominium development.

The Court of Appeal allowed the City's appeal, holding that the City did not owe Charlesfort a private law duty of care.

The Court clarified that the City's undertaking in processing a rezoning application was to fulfill its statutory duty in the public interest, not to protect the developer's economic interests or assure project viability.

The plaintiff developer sued the defendant municipality for negligent misrepresentation regarding a rezoning application for a condominium project.

During the rezoning process, the municipality failed to inform the developer about a large, high-pressure water main located in an adjacent easement, mistakenly advising that it was a trunk sewer.

The developer relied on this information and proceeded with the purchase and development.

At the site plan approval stage, the municipality's engineers objected to the proposed underground parking garage due to the risks posed to the water main, forcing the developer to redesign the project and incur significant delays and costs.

The court found that the municipality owed a duty of care to the developer, breached that duty through negligent misrepresentations, and that the developer reasonably relied on those representations.

The court awarded the developer $4,496,384 in damages and pre-judgment interest.

In a CCAA proceeding, the Monitor brought a motion for advice and directions seeking to challenge $2.3 million in payments in kind made by the debtor to a trade creditor as oppressive.

The court dismissed the motion, finding that the Monitor had not been empowered to bring such proceedings on behalf of the debtor corporations and that it was inappropriate for the Monitor to drop its neutrality to pit creditors against each other.

Furthermore, the Monitor failed to prove that any creditors held reasonable expectations that were breached by the transfers.

The law firm Crawley MacKewn Brush LLP (CMB) brought a motion seeking an order to be appointed as representative counsel for approximately 3,000 investors in the receivership of Crystal Wealth Management Systems Inc. The court-appointed Receiver, Grant Thornton Limited, and the Ontario Securities Commission opposed the motion, arguing that it would be duplicative of the Receiver's role and would result in unnecessary professional fees.

The court dismissed CMB's motion, finding that the Receiver was already adequately protecting and advancing the investors' interests, and that appointing representative counsel would add unnecessary expense without good reason.

The plaintiff bank moved for summary judgment against a guarantor spouse seeking payment under a personal guarantee and possession of the mortgaged property securing the debt.

The responding guarantor argued that the guarantee and subsequent collateral mortgage were unenforceable due to non‑disclosure, misrepresentation, undue influence by her spouse, lack of proper independent legal advice, and unconscionability.

The court held that the bank satisfied its obligations by requiring independent legal advice and had no duty to investigate the adequacy of that advice where authentic letters were provided.

Although the marital relationship raised a presumption of undue influence, the bank rebutted the presumption through the guarantor’s repeated acknowledgments of independent legal advice and voluntary execution of the agreements.

Summary judgment was granted for the bank for the guaranteed amount and possession of the property, but leave to issue a writ of possession was denied pending better evidence regarding actual possession of the property.

The plaintiff sued his former family lawyer for professional negligence arising from the drafting of a marriage contract.

He alleged the solicitor failed to advise him about a potential 'downside' or catastrophic change clause that would have protected him if his wealth declined during the marriage.

After the marriage ended, the contract was enforced and the plaintiff paid substantial sums to his spouse, which he claimed constituted damages caused by negligent legal advice.

The court found the solicitor had adequately explained the operation of the Family Law Act and equalization and met the standard of care of a reasonably competent solicitor.

The court also held that even if negligence had been established, the plaintiff failed to prove causation or damages, including claims relating to lost investment opportunities.

The plaintiff bank sought enforcement of a $400,000 personal guarantee executed by the responding party in connection with corporate loans extended to two companies he controlled.

The responding party argued the guarantee was corporate rather than personal because a corporate seal appeared beside his signature and advanced counterclaims including breach of contract, slander of title, and punitive damages relating to the lender’s enforcement of security and sale of mortgaged property.

The court held the loan documentation clearly required a personal guarantee and that the corporate seal was legally irrelevant.

The defendant’s interpretation was commercially unreasonable and contradicted by the surrounding contractual documents and conduct.

The court enforced the personal guarantee and dismissed all counterclaims.

The appellants appealed an order dismissing their defamation action for delay.

The action arose from statements published during a 1997 municipal election.

The motion judge found inordinate delay, noting that no steps had been taken by the appellants since 2005 and that a presumption of prejudice arose, reinforced by the loss of witnesses.

The Court of Appeal found no palpable or overriding error in the motion judge's conclusions and dismissed the appeal with costs.