Michael B. Miller

The defendant sought leave from the case management judge to bring a motion extending the time to serve a responding handwriting expert report, just weeks before trial.

The defendant had repeatedly missed deadlines and failed to retain an expert until after the original documents were allegedly lost.

The court dismissed the motion for leave, holding that any request to admit the late report or address spoliation must be brought de novo before the trial judge under Rule 53.08, as further case management intervention would risk treading on the trial judge's role.

The plaintiff, Jodi L. Feldman Professional Corporation, sought costs following a successful trial against the defendant, Lynne Catherine Foulidis, for legal services rendered.

The trial assessed the value of services at $480,919.93.

The plaintiff sought $276,631.63 in costs, applying partial indemnity to an Offer to Settle date and substantial indemnity thereafter.

The defendant objected on grounds of reasonableness, proportionality, insufficient docket details, and an alleged agreement for summary trial costs limits.

The court largely agreed with the plaintiff's entitlement to costs but made reductions for excessive claims related to statement of claim drafting, a charging order motion, and mediation, ultimately fixing costs at $240,118.50 all-inclusive.

The plaintiff, Jodi L. Feldman Professional Corporation, a matrimonial lawyer, sued her former client, Lynne Catherine Foulidis, for unpaid legal fees totaling $664,323.38 incurred during a divorce proceeding.

The dispute centered on the existence of a written retainer, the quantum of fees, and alleged breaches of professional conduct by the plaintiff, including communication deficiencies and potential conflicts of interest.

The court found a valid written retainer existed and that the plaintiff's efforts were largely necessary due to the ex-spouse's non-disclosure.

While rejecting claims of excessive litigation or actual conflict of interest, the court found the plaintiff failed to meet the standard of care in communication and record-keeping regarding litigation strategy and risks.

The court fixed the amount owed for fees at $425,000 plus HST and disbursements, a reduction from the amount claimed, but significantly more than the defendant's proposed amount.

The applicant sought a declaration that the respondent was a vexatious litigant under section 140 of the Courts of Justice Act, along with an order prohibiting further proceedings without leave and requiring payment of outstanding costs.

The court reviewed the respondent's history of litigation, including persistent unsuccessful appeals, failure to pay costs, abusive conduct, and meritless applications.

The court found the respondent's conduct to be vexatious, abusive, and a drain on judicial resources, granting the applicant's request for a vexatious litigant declaration and associated relief.

The defendant breached an Agreement of Purchase and Sale for a residential home.

The plaintiff vendor brought a motion for summary judgment seeking damages for the difference between the contract price and the market value at closing, plus forfeiture of the deposit.

The defendant argued the plaintiff failed to mitigate its damages and that the deposit should be credited against any damages.

The court granted summary judgment, finding no failure to mitigate as the defendant provided no evidence that the loss could have been minimized.

The court also held that the deposit must be credited against the damages, awarding the plaintiff the diminished value less the deposit amount.

The plaintiffs brought a motion to continue an interim Mareva injunction, a Norwich Order, and certificates of pending litigation against the defendants, alleging they were victims of a multi-million dollar mortgage fraud orchestrated by their former lawyer and acquaintances to pay off the ex-husband's gambling debts.

The defendants cross-moved to vacate the orders and enforce the plaintiffs' undertaking as to damages.

The court found the plaintiffs failed to establish a strong prima facie case of fraud, noting their evidence was implausible and that they failed to make full and fair disclosure when obtaining the ex parte orders.

The court vacated the injunctions and orders but dismissed the defendants' motion to enforce the undertaking as to damages, finding it premature as the underlying claims of professional negligence and fraud remained to be determined at trial.

The plaintiff abandoned its motion for an interlocutory injunction after nearly two years.

The defendants sought costs of the abandoned motion on a substantial indemnity scale, payable forthwith.

The court held that, absent extraordinary circumstances, costs of an abandoned injunction motion are payable forthwith.

Finding no reprehensible conduct by the plaintiff, the court awarded costs on a partial indemnity scale, fixing them at $65,908.61 for the Racer Defendants and $22,713.82 for the Standard Defendants.

This endorsement addresses the costs of a motion brought by Hilco Industrial Acquisition Canada ULC ("Hilco") to enforce interim minutes of settlement against Engreen Maitland Inc. ("Engreen"), which Hilco had won.

The court found that Engreen and its principal acted in bad faith by repudiating the settlement.

Hilco sought full indemnity costs, while Engreen argued for partial indemnity.

Applying Rule 57 of the Rules of Civil Procedure, the court considered factors such as success, the amount involved, complexity, importance, and Engreen's unreasonable conduct.

Despite finding that Engreen's conduct warranted chastisement, the court deemed Hilco's requested costs disproportionate and excessive, even on a partial indemnity basis.

The court fixed costs at $20,000 plus HST and disbursements, emphasizing the principle of proportionality and the amount the unsuccessful party would reasonably expect to pay.

Following a successful trial resulting in damages of $400,000 for the applicants, the court determined the appropriate costs award.

The applicants sought substantial indemnity costs exceeding $213,000 based on early settlement offers.

The respondents accepted that costs were payable but argued for a lower partial indemnity award.

The court held that the settlement offers did not justify substantial indemnity costs and that partial indemnity costs were appropriate after considering Rule 50.10 factors including trial length, complexity, and importance of the issues.

Costs were fixed at $150,000 inclusive of disbursements and taxes.