Matthew G. Moloci

This endorsement addresses the costs of a motion where the applicants sought an advance payment for shares in a family business.

The applicants were largely successful in obtaining a substantial advance payment, significantly more than the respondents' offers to settle.

Despite some divided success on ancillary requests, the court found the applicants to have achieved substantial success on the primary issue.

The court fixed costs on a partial indemnity basis, awarding the applicants $60,000 for fees and $5,948.49 for disbursements, payable within 30 days, declining to defer the costs decision to the trial judge.

A proposed class action alleged that a charitable tax receipt program associated with private Christian school tuition resulted in participants being reassessed and penalized after the Canada Revenue Agency disallowed the tax credits.

The representative plaintiff moved on consent for certification for settlement purposes, approval of a settlement fund of up to $1.5 million, approval of class counsel’s contingency fee, and an honorarium.

The court reviewed the certification requirements under s. 5(1) of the Class Proceedings Act, 1992 and concluded that the criteria were met in the settlement context.

Applying established factors governing settlement approval, the court held the agreement was fair, reasonable, and in the best interests of the class.

The court also approved the requested contingency fee, disbursements, and the representative plaintiff honorarium.

The appellants appealed the motion judge's refusal to stay a partial summary judgment until all litigation between the parties was resolved.

The Court of Appeal held that the refusal to stay the judgment was an exercise of the motion judge's discretion and found no basis to interfere.

The appeal was dismissed with costs fixed at $7,500.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

Costs were awarded to the respondents in the amount of $20,000, inclusive of disbursements and all applicable taxes.

The appellant appealed a trial judgment that awarded him $3,789.93 in damages based on a 15-day notice termination clause in his agreement with the respondent.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's factual findings or her interpretation of the clear language of the agreement, which allowed termination for any reason on 15 days' written notice, regardless of whether the appellant was an employee or an independent contractor.

In a franchise class action, the plaintiffs challenged the defendants' claims of solicitor-client privilege over certain documents and discovery refusals.

The court established seven general principles to govern the privilege claims, holding that requests for general legal information to understand rights are privileged, and that a lawyer's file compiled using professional skill is protected by work product privilege.

The court further held that pleading good faith in response to a bad faith claim does not impliedly waive privilege unless the party relies on legal advice as a material element of its defence.

The court outlined a process for the parties to apply these principles to the disputed documents and refusals ahead of a continued hearing.

The self-represented appellant brought a motion to set aside or vary a previous panel order that dismissed his motion to review a case management judge's order regarding transcript costs.

The appellant filed affidavits containing intemperate language and unsupported accusations of professional misconduct against opposing counsel.

The Court of Appeal struck the affidavits as scandalous and vexatious under Rules 4.06(2) and 25.11 of the Rules of Civil Procedure.

The motion was dismissed for lack of merit and evidence, with costs awarded to the respondents.

The testator left a life interest in the residue of his estate to his wife, directing that upon her death, the residue be divided equally between his son and daughter, 'per stirpes'.

The son predeceased the life tenant, leaving his estate to his second wife.

The application judge held that the phrase 'per stirpes' indicated an intention to benefit the son's children, rather than his estate or the surviving daughter.

The Court of Appeal dismissed the appeal, finding that while a gift to named children 'per stirpes' can be contradictory, in this context it conveyed the testator's intention to benefit his children's children if either child predeceased the life tenant.

Following the dismissal of the appellant's appeal, the respondent law firm sought costs on a substantial indemnity basis of over $29,000.

The appellant, who was self-represented, sought costs of $3,000 to $4,000 despite being unsuccessful.

The Divisional Court awarded costs to the respondent but significantly reduced the quantum to $2,000.

The court noted that the respondent's counsel invested excessive time, sought an unjustifiably high rate, and had previously been criticized by other judges for unprofessional conduct and impaired judgment in acting for his own firm.

The moving parties sought court approval of a proposed settlement in a certified class proceeding relating to a leveraged charitable donation tax shelter.

Participants had claimed inflated charitable tax credits based on loans and security deposits connected to the program, which were later disallowed by the Canada Revenue Agency.

The settlement provided for an $11 million payment by a defendant law firm alleged to have issued legal opinions supporting the program’s legality, with funds distributed to class members and covering counsel fees and administration.

The court applied established factors governing settlement approval in class proceedings and found the agreement fair, reasonable, and in the best interests of the class given significant litigation risks.

The court also approved class counsel fees but declined to award additional compensation to the representative plaintiffs, finding their contribution commendable but not exceptional.

The appellant appealed a motion judge's decision upholding the validity of a direction assigning the proceeding to the respondent law firm.

The appellant argued the direction was signed under duress and was superseded by a subsequent contingency agreement.

The Divisional Court dismissed the appeal, finding no palpable or overriding error in the motion judge's assessment of the evidence and concluding that the appellant was merely attempting to re-litigate factual findings.

The plaintiffs sought leave to appeal a decision conditionally certifying a class action against a parking management company with significantly narrower parameters than proposed.

The plaintiffs challenged the motion judge's dismissal of causes of action under the Consumer Protection Act, 2002, unjust enrichment, and unconscionability, as well as the imposition of a limitation period and the exclusion of punitive damages as a common issue.

The Divisional Court found no good reason to doubt the correctness of the motion judge's order and no conflicting decisions warranting leave.

The motion for leave to appeal was dismissed in its entirety.

The self-represented appellant moved to review an order of a single judge of the Court of Appeal sitting in chambers.

The chambers judge had validated service of the respondent's certificate, directed that all trial evidence was necessary for the appeal, and required the appellant to order the transcripts.

The panel dismissed the motion, finding that the transcripts were indeed necessary for a full and fair hearing, but extended the deadline for the appellant to order them.

The appellant appealed an order denying his application to amend his counterclaim to add a claim for specific performance.

The motion judge had refused the amendment without explanation, stating the claim was untenable, and failed to reference Rule 26.01 of the Rules of Civil Procedure.

The Court of Appeal found that the respondents' arguments regarding prejudice and election of remedies were matters for trial, not grounds to deny the amendment.

The appeal was allowed, and leave to amend was granted.

The plaintiff appealed a trial judge's decision to stay the proceeding for lack of jurisdiction.

The trial judge, on his own motion during the trial, raised the issue of jurisdiction and applied the Muscutt factors to find no real and substantial connection with Ontario.

The Court of Appeal allowed the appeal, holding that the defendants had attorned to Ontario's jurisdiction by participating extensively in the litigation, including pleadings, discoveries, and the trial itself.

The stay was lifted, and a new trial was ordered before a different judge.

The appellant general contractor appealed a trial judgment awarding the respondent electrical subcontractor $45,000 for loss of profits due to breach of contract.

The appellant had carried the respondent's bid in its tender but later refused to use the respondent, demanding 100% performance bonds which the respondent could not obtain.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the appellant failed to establish a reasonable objection to contracting with the respondent and was not entitled to demand 100% bonding when the prime contract only required 50%.

The appellant appealed the dismissal of his claim for adverse possession or a prescriptive easement over a strip of commercial land.

The trial judge found that the appellant's use of the land on his side of a fence built by the respondent's predecessor was with permission or based on mutual mistake, and lacked the intent to exclude the true owner.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings regarding consent and mutual mistake.

The applicant, a director of West Machinery Co. Limited, sought a review of an order to pay unpaid wages and vacation pay owed to employees of Tobac Curing Systems Limited.

The Employment Standards Officer had found that West and Tobac were related employers under section 12 of the Employment Standards Act and issued the order against the applicant as a director of West.

The Board found that the two companies were related businesses, as they operated under the same roof, shared a controlling mind, and West relied almost exclusively on Tobac's employees.

The Board also rejected the applicant's argument that the Officer had broad discretion under section 58.22 to consider her personal circumstances before issuing the order.

The application for review was dismissed and the order to pay was affirmed.

The applicant, a director of an insolvent company, sought review of a Director Order to Pay for unpaid wages.

She raised two preliminary issues: first, that the Employment Standards Officer lacked authority to issue the order without first issuing one against the employer; and second, that the matter was res judicata because the trustee in bankruptcy had disallowed the employees' claim.

The Board dismissed both preliminary arguments, finding that the Employment Standards Act does not require an order against an insolvent employer as a precondition to director liability, and that issue estoppel did not apply because the trustee's determination under the Bankruptcy and Insolvency Act involved a different legal question than the one under the Employment Standards Act.