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.

Hiawatha First Nation applied for a permanent injunction to restrain three of its members from constructing a gas station on the reserve.

The band argued the construction violated the Indian Act, a band by-law requiring building permits, a band resolution imposing a moratorium on new businesses, and environmental legislation.

The court found that the building permit by-law and environmental legislation did not apply, and that the proposed business structure did not violate the Indian Act.

However, the court held that the band resolution imposing a moratorium was an enforceable by-law.

The court granted an injunction restraining construction while the moratorium remains in effect and until the proponents comply with all applicable laws.

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 moving parties sought leave to appeal an order that allowed the respondent to amend its statement of defence, added a third party as a necessary party, and dissolved an injunction preventing the respondent from disposing of disputed lands.

The Divisional Court granted leave to appeal specifically on the issue of lifting the injunction, finding good reason to doubt the correctness of that part of the order because the moving party would suffer irreparable harm if the respondent sold the land before the court determined ownership rights.

Leave to appeal the joinder of the third party was denied.

The plaintiff moved to amend its statement of claim to add two corporate defendants and assert a fraudulent conveyance claim relating to rights under a letter of intent associated with a hotel development project.

The defendant opposed the amendment on the basis of res judicata, issue estoppel, limitation periods, and abuse of process, and also sought security for costs against the plaintiff corporation.

The court held that the proposed claim was not finally adjudicated in earlier summary judgment proceedings and that the new pleading asserted a different theory based on joint venture ownership and fraudulent conveyance.

The court also rejected the limitation defence, finding the amendment motion was effectively commenced within the limitation period.

The defendant failed to demonstrate that the plaintiff corporation was impecunious or that the action was frivolous and vexatious.

The defendant, Romandale Farms Limited, brought a motion for leave to amend its statement of defence, add third parties, consolidate actions, and dissolve a 2007 interlocutory injunction in a complex commercial real estate dispute.

The plaintiff opposed the amendments, arguing prejudice, res judicata, and withdrawal of an admission.

The court granted leave to amend, finding no non-compensable prejudice and that the proposed defences were tenable and responsive to the plaintiff's amended claims regarding a partial settlement agreement.

The court also joined one third party for limited purposes to avoid multiplicity of proceedings and dissolved the 2007 injunction, as the plaintiff no longer claimed a proprietary interest in the land.

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.

In a Commercial List application arising from a share purchase transaction, the applicant sought to compel arbitration of post-closing inventory, working capital, and holdback adjustment disputes, along with declarations concerning ownership of inventory and equipment.

The respondents argued that arbitration was premature because the court first had to determine what constituted inventory and whether the arbitrator had jurisdiction.

The court rejected that position, applied the competence-competence principle, and held that the arbitral process mandated by the SPA had to proceed.

The court also declared that the applicant owned the disputed inventory and equipment, vacated prior interim access orders, and refused to convert the application into an action.

Following the dismissal of the moving parties' motion for a rehearing of an appeal, the responding party sought costs on a partial indemnity basis in the amount of $13,094.

The moving parties argued no costs should be awarded as the motion raised a novel issue that clarified the law.

The Court of Appeal held that costs should follow the event and awarded the responding party costs fixed at $4,000 all inclusive.

The moving parties brought a motion for a re-hearing of an appeal, arguing that the Supreme Court of Canada's decision in Sattva Capital Corp. v. Creston Moly Corp., released shortly before the appeal decision, altered the applicable standard of review for contractual interpretation.

The Court of Appeal dismissed the motion, finding that the result of the appeal was not driven by the standard of review and would not have been different under the Sattva test, as the application judge's errors were extricable questions of law.

In a business dispute arising from a hotel development venture, the appellant challenged summary judgment dismissing all personal claims against an individual corporate principal while related claims against the corporation continued.

The Court of Appeal held that, under the post-Hryniak summary judgment framework, it was in the interest of justice to finally determine the individual's personal liability and that appellate deference was owed absent material error.

The court found that any factual errors by the motion judge were immaterial, upheld the conclusion that there was no evidence of a personal fiduciary duty, and agreed that the letter of intent was not shown to be a trust asset.

On the findings, the individual acted in good faith and in the corporation's best interests, so the personal tort claims failed and the fresh evidence motion was also dismissed.

Following the dismissal of the appellant's appeal, the successful respondents sought costs.

One respondent failed to bring a costs outline to the hearing as required by Rule 57.01(6) of the Rules of Civil Procedure, and subsequently claimed an amount three times higher than initially estimated.

The court penalized this non-compliance by awarding costs limited to the amount the appellant had estimated in its own costs outline.

The appeal concerned interpretation of a land development agreement containing a purchase price adjustment clause tied to non-developable acreage and secured by a vendor take-back mortgage.

The application judge treated the fifth anniversary in the clause as a hard deadline, with time of the essence, and held the purchaser lost any right to a price reduction by failing to trigger the process by that date.

The Court of Appeal held that interpretation was commercially unreasonable and inconsistent with the agreement’s structure, the consultant-based determination mechanism, and the surrounding development context.

The fifth anniversary operated as an 'as of' valuation date for measuring non-developable land, not as a limitation-like deadline.

The appeal was allowed, the judgment below set aside, and the purchaser was declared entitled to a price reduction to be determined under the agreement.

The appellant appealed an order dismissing its motion for leave to amend its Statement of Defence and to commence a cross-claim and counterclaim.

The proposed amendments alleged that a settlement agreement between the plaintiff and other defendants constituted a breach of a prior agreement.

The Divisional Court upheld the Master's decision, finding that the Master correctly concluded the proposed amendments were not tenable in law based on a review of the settlement agreement.

A residential tenant sought an interlocutory injunction preventing the landlord from allocating units in a redeveloped apartment building until alleged breaches of agreements and Ontario Municipal Board decisions were resolved.

The moving party argued that the relocation and unit selection process violated a section 37 Planning Act agreement and prior representations, and would cause irreparable harm.

The court applied the test from RJR MacDonald v Canada (AG) and held that the tenant failed to establish irreparable harm and that the balance of convenience favoured the landlord.

The tenant also failed to provide an undertaking as to damages as required by Rule 40.03 of the Rules of Civil Procedure.

The motion for injunctive relief was dismissed and costs were awarded to the landlord.