Matthew Benjamin Lerner

The Plaintiff and other parties sought costs for an aborted continued pretrial, which was rendered unproductive due to the non-attendance of a principal of the Defendants/Plaintiff by Counterclaim and their counsel, without timely notification.

The court found the non-attendance and lack of notice discourteous and a waste of time for counsel and the court.

Citing Rule 50.12 and 57.01 of the Rules of Civil Procedure and Section 131(1) of the Courts of Justice Act, the court ordered the Defendants/Plaintiff by Counterclaim to pay $12,000 in costs on a substantial indemnity basis.

This endorsement addresses the costs of a successful motion brought by defendant Atif Kamran to remove Siskinds LLP as counsel for plaintiffs Dan Andersson and LEO Canada Inc., and to compel document production.

The court awarded costs to Mr. Kamran, payable by Mr. Andersson alone, fixed at $17,000.00 on a partial indemnity basis.

The court declined to award substantial indemnity costs, finding no reprehensible conduct by Mr. Andersson and noting that the defendants' settlement offer was technically deficient and lacked clarity, thus not engaging the presumptive consequences of Rule 49.10.

The court also considered the broader context of the litigation and the inflammatory nature of some allegations made by Mr. Kamran.

The applicant sought an oppression remedy or winding-up order against his brother and the family business, Clifton Plastics Ltd., regarding payments made to the brother after their father's retirement and subsequent incapacity.

The respondent brought a counter-application for an accounting and wrongful dismissal damages.

The court found no oppression but ordered a winding-up under s. 207 of the OBCA, requiring the applicant to purchase the respondent's shares at fair market value, reduced by $35,000 due to unequal contributions, and without attributing value to alleged shareholder loans.

Following a successful motion for partial summary judgment, the moving party sought costs on a substantial and full indemnity basis, arguing the responding party acted unreasonably and for the purpose of delay.

The responding party denied lengthening the proceeding and argued the costs sought were disproportionate.

The court found the responding party did not act unreasonably solely for delay, but awarded costs on a partial indemnity basis up to the date of the moving party's offers to settle, and on a substantial indemnity basis thereafter.

Costs were fixed at $32,500 inclusive.

The plaintiff recruitment firm brought a motion for partial summary judgment for unpaid invoices relating to executive placements.

The defendant did not oppose the judgment but sought a stay of execution pending the resolution of its counterclaim against the co-plaintiff financial advisory firm.

The court granted the partial summary judgment and dismissed the request for a stay, finding that the co-plaintiffs were separate corporate entities, the underlying transactions were completely unrelated, and the equities favoured allowing the plaintiff to enforce its judgment without delay.

In a priority dispute following the bankruptcy of a paving company, a bond company argued that funds held by the receiver in a project account were statutory trust funds under the Construction Lien Act and therefore excluded from the bankrupt's estate under s. 67(1)(a) of the Bankruptcy and Insolvency Act.

The court dismissed the trust claim, finding that the funds lacked the certainty of subject matter required to constitute a true common law trust, as they were not identifiable or held separately prior to the receivership.

Consequently, the funds were to be distributed under the BIA scheme.

Motions for leave to appeal from an order of the Superior Court of Justice dismissing a motion to require Algoma to resume payments under a Cargo Handling Agreement in the context of CCAA proceedings.

The applicants sought to invoke section 11.01(a) of the Companies' Creditors Arrangement Act to compel payment for post-filing services.

The motion judge had dismissed the motion three times on the same legal grounds.

The Court of Appeal dismissed the leave motions, finding no prima facie merit due to issue estoppel and no significance to the practice, as the issues were specific to the unique agreements underlying the Port Transaction.

The defendant, KPMG LLP, moved for an order relieving former directors of the plaintiff, Cash Store, from a contractual obligation not to cooperate with KPMG in the ongoing litigation.

This obligation was contained in an undisclosed side letter agreement that formed part of a global settlement under the CCAA.

The court found that because the side letter was not disclosed to creditors, KPMG, or the court during the CCAA plan approval process, Cash Store lacked the authority to enter into the impugned term.

Consequently, the court held that the prohibition against communicating with KPMG was not binding on the former directors, and the motion was granted.

This endorsement addresses the costs arising from a dismissed motion to stay an action.

The defendants, as moving parties, sought to stay the action, but their motion was dismissed with costs to the plaintiff.

The parties failed to agree on the scale and quantum of costs.

The court found the plaintiff's pre-motion offer to settle the motion was reasonable and should have been accepted, while the defendants' post-motion offer was not severable and included extraneous terms.

Consequently, the court awarded the plaintiff costs fixed at $17,800, calculated on a blended partial and substantial indemnity basis.

The defendants moved to stay an action brought by the plaintiff in Ontario, arguing that Ontario lacked jurisdiction simpliciter or was not the convenient forum, proposing Andorra as the appropriate venue.

The dispute concerned entitlement to €400,000 held in escrow under an Escrow Agreement, which contained a non-exclusive choice of law and forum selection clause in favour of Ontario.

The court found the essential nature of the lawsuit was rooted in the Escrow Agreement, which dictated Ontario law and forum.

The court dismissed the defendants' motion, finding no exceptional circumstances to disregard the forum selection clause and that Ontario was the more convenient forum.

The defendants, an insurance brokerage firm and its individual employees, brought a motion to strike the plaintiffs' statement of claim against the individual employees for failing to plead a reasonable cause of action.

The court found that the statement of claim did not sufficiently allege personal liability against the individual employees, as their actions were within the scope of their employment and lacked specific allegations of fraud, deceit, dishonesty, or actions separate from the corporate entity.

While the claims against the individual defendants were struck, the plaintiffs were granted leave to amend their statement of claim within 30 days to plead facts that could sustain a viable claim against them.

The appellants appealed a Master's decision dismissing their franchise dispute action for delay under Rule 24.01(1).

The action had been commenced in 2003 and struck from the trial list in 2010, with significant periods of inactivity largely attributed to the appellants' former counsel.

The Divisional Court denied the appellants' request to introduce fresh evidence of LinkedIn searches of the respondent's former employees.

The court upheld the Master's findings that the delay was inexcusable and that the passage of time and corporate restructuring had resulted in the loss of key witnesses, creating a substantial risk that a fair trial was no longer possible.

The appeal was dismissed.

The Ad Hoc Committee of Purchasers of the Applicants' Securities moved for approval of a settlement agreement and plan of allocation in the context of CCAA proceedings involving Cash Store Financial Services and related entities.

The settlement provided for a payment of $13,779,167 by the defendants to resolve allegations of false and misleading statements regarding financial results.

The court approved the settlement and the associated third-party releases, finding them fair, reasonable, and consistent with the purpose of the CCAA.

The motion to approve the plan of allocation was adjourned on consent.

In CCAA proceedings involving a payday lending enterprise, class members in Ontario consumer class actions moved for approval of three settlement agreements forming part of a broader global resolution of litigation involving the debtor companies, their directors and officers, and related parties.

The settlements resolved certain class claims and partially resolved a third‑party lender claim, providing more than $10 million in recovery with potential participation in future litigation proceeds.

The court applied established settlement approval factors including likelihood of success, litigation risks, counsel recommendations, absence of objections, and arm’s‑length negotiations.

The court concluded that the settlements were fair, reasonable, and in the best interests of the class and the restructuring process.

Following dismissal of a trustee’s motion seeking directions to terminate certain condominium purchase agreements, the court addressed costs.

The purchasers sought costs against the trustee or alternatively against mortgagees who supported the trustee’s position.

The court held that although the mortgagees were not formal parties to the motion, they actively participated and had a direct financial interest in the outcome, making it appropriate to hold them responsible for costs.

The court also considered principles governing costs for self-represented litigants and limited recovery to proven disbursements where no foregone remunerative activity was demonstrated.

Costs were awarded to the purchasers and made payable jointly and severally by the mortgagees.

The court-appointed Trustee of an insolvent condominium development brought a motion for advice and directions, seeking permission to terminate pre-sale purchase agreements for buyers who had purchased two parking units, due to a shortage of parking spaces in the building.

The Trustee proposed that these buyers relinquish one parking space for a price reduction, or face termination of their agreements.

The court applied the test of balancing the equitable considerations of all stakeholders.

Finding that the mortgagees had accepted the risk of the parking shortage and that the purchasers would suffer significant financial hardship and loss of equity if their agreements were terminated, the court dismissed the Trustee's motion.

The plaintiff sued a newspaper publisher after it published her real name despite a Criminal Code publication ban protecting the identity of complainants and witnesses in a sexual assault retrial.

The court held that breach of the order did not create automatic civil liability, but the publisher owed a duty of care in negligence because the order created sufficient proximity and the risk of physical or psychological harm from disclosure was foreseeable.

Applying the standard of a reasonably prudent reporter, the court found the newspaper failed to preserve and verify the scope of the order before reporting.

The plaintiff proved serious and prolonged psychological injury, including a social anxiety disorder, caused in fact and in law by the breach, but failed to prove future care costs or entitlement to punitive damages.

Judgment was granted against the corporate defendant for $40,000 plus interest, and the action was dismissed against the individual reporter.

The plaintiff, a witness in a sexual assault re-trial, sued a newspaper and its reporter for negligence after her identity was published in breach of a court-ordered publication ban.

The court found that while breach of a publication ban does not automatically result in civil liability, the newspaper owed a duty of care to the plaintiff.

The reporter breached the standard of care of a reasonably prudent journalist by failing to verify the scope of the publication ban.

The court concluded that the publication caused the plaintiff to suffer compensable psychological injury, including social anxiety disorder and agoraphobia, and awarded $40,000 in general damages against the newspaper.

The action against the reporter personally was dismissed on consent.

The defendant moved to dismiss the plaintiffs' 2003 franchise dispute action for delay under Rule 24.01(1)(e), and the plaintiffs brought a cross-motion to restore the action to the trial list.

The court found a period of inordinate and unexplained delay, largely attributable to the plaintiffs' former counsel's neglect.

However, the court also found that the delay caused actual prejudice to the defendant, as key executives involved in the franchise negotiations had left the company during the delay period, creating a substantial risk that a fair trial was no longer possible.

The defendant's motion was granted and the action was dismissed.

The appellants appealed a partial summary judgment that found a shotgun buy-sell offer valid and enforceable despite minor non-compliance with the partnership agreement.

The offer contained two alternatives, one compliant and one non-compliant.

The Court of Appeal held that strict compliance with a shotgun buy-sell provision is required, but strict compliance is not perfect compliance.

The inclusion of a non-compliant alternative did not render the offer unenforceable because a compliant alternative was also included.

The court upheld the motion judge's decision to enforce the compliant alternative and award damages for the non-compliant elements.