Martin J. Henderson

This endorsement addresses the question of costs for the applications below, following an appeal decision (2023 ONCA 524) where the Court of Appeal found the application judge erred in granting an injunction against the appellants (Cowie et al.) based on a band council resolution.

The original injunction was granted to Hiawatha First Nation to prohibit construction of a gas station.

Although the appellants were successful on appeal, no costs were awarded for the appeal itself due to their concession regarding the applicability of a new Land Code.

The application judge had awarded Hiawatha First Nation $235,000 in costs.

This endorsement reduces that award to $117,500, all-inclusive, considering the conduct of both parties and the appellants' socially responsible concession.

This appeal addressed whether a Band Council Resolution (BCR) could be enforced as a by-law under the Indian Act.

Hiawatha First Nation sought a permanent injunction to stop three of its members from building a gas station on the reserve, relying on a BCR that imposed a moratorium on new businesses.

The application judge granted the injunction, treating the BCR as a by-law.

The Court of Appeal found that a BCR is distinct from a by-law and does not have the force of law to create rights and duties for band members or third parties under the Indian Act.

The court emphasized that law-making authority under the Indian Act, particularly when affecting proprietary rights, requires adherence to specific by-law formalities.

Consequently, the appeal was allowed, and the injunction based on the BCR was set aside.

The applicant, Original Traders Energy Ltd. (OTE Group), brought a motion for a Mareva injunction against former executives, Glenn Page and Mandy Cox, and their corporate entity, 2658658 Ontario Inc., to freeze a yacht allegedly purchased with OTE funds through fraudulent means.

The court granted the injunction, finding a strong prima facie case of fraud, a serious risk of asset dissipation given the yacht's movement after notice, and that the balance of convenience favored the applicant.

The requirement for an undertaking as to damages was dispensed with due to the applicant's insolvency and the strength of their case.

The order included directing the respondents to facilitate the yacht's return to Florida.

This decision addresses the costs arising from a decade-long, four-action litigation where Romandale Farms Limited was the successful party.

Romandale sought substantial indemnity costs against Fram and Kerbel (and their associated entities).

The court found that Fram and Kerbel's conduct throughout the litigation was "reprehensible and deserving of sanction," including pursuing meritless claims for tactical reasons, making disingenuous arguments, and principals giving false evidence.

The court awarded Romandale substantial indemnity costs of $2,708,651.57, inclusive of fees and disbursements, payable jointly and severally by Fram and Kerbel, finding the amount fair and reasonable given the complexity, stakes, and the losing parties' conduct.

Multiple actions arising from a complex land development dispute involving co-ownership agreements for two farm properties in Markham.

Fram alleged Romandale breached the co-ownership agreements by entering into a conditional agreement to sell its interest to Kerbel.

Kerbel later entered into a settlement agreement with Fram to delay the closing of its purchase from Romandale for decades.

The court found that Romandale did not breach the co-ownership agreements.

Furthermore, the court held that Kerbel repudiated its agreement with Romandale by entering into the settlement agreement with Fram, which fundamentally altered the timeline for closing.

All claims by Fram and Kerbel against Romandale were dismissed, and Romandale was granted a declaration that its agreement with Kerbel was at an end.

The respondent was wholly successful on a motion to quash the appellants' appeal and sought costs of $14,483.01 on a partial indemnity basis.

The appellants agreed costs should follow the event but disputed the quantum, arguing the hours claimed were excessive for a motion with no cross-examinations and brief materials.

The court agreed the hours claimed were high and, applying the principle of fairness and reasonableness, fixed the respondent's costs at $10,000 on a partial indemnity basis.

The respondent brought a motion to quash the appellants' appeal of an arbitral award regarding post-closing adjustments under a Share Purchase Agreement.

The respondent argued that the Joint Submission to Arbitrate governed the proceedings and did not provide a right of appeal, meaning leave was required under the Arbitration Act, 1991.

The appellants argued the original Share Purchase Agreement allowed appeals for 'manifest error'.

The court found that the Joint Submission to Arbitrate replaced the original agreement and governed the arbitration.

As it did not provide a right of appeal, and no leave was sought, the motion was granted and the appeal was quashed.

The applicant sought appointment of an arbitrator to determine post‑closing purchase price adjustments under a share purchase agreement after the respondents refused to engage the designated accounting firm arbitrator and raised allegations of bias based on the accounting firms having previously retained the applicant’s law firm in unrelated matters.

The court reviewed the legal test for reasonable apprehension of bias applicable to arbitrators and held that the mere fact that an accounting firm had retained counsel for one party in unrelated insolvency matters does not give rise to a reasonable apprehension of bias.

The court found the respondents’ allegations meritless and concluded their conduct had derailed the agreed arbitration process.

Although a former judge was ultimately appointed as arbitrator on consent, the court determined the applicant had lost its contractual right to the designated arbitrator due to the respondents’ unjustified conduct.

Significant costs were ordered against the respondents for acting in bad faith and breaching earlier court orders.

The defendants brought a Rule 21 motion to strike an amended statement of claim on the basis that it disclosed no reasonable cause of action and was an abuse of process due to a related proceeding.

The court applied the stringent Rule 21 test and held that most of the pleaded causes of action—including breach of an implied contractual duty of good faith, inducement of breach of duty, inducement of breach of fiduciary duty, and intentional interference with economic relations—were not plainly doomed to fail and therefore should proceed.

However, the conspiracy claim failed to properly plead the necessary elements and was struck with leave to amend.

The request to stay the proceeding due to a separate action involving a solicitor and law firm was rejected because the parties and subject matter were not the same.

Costs were awarded to the responding parties.