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 moving party brought a motion for leave to appeal the decision of the lower court judge.

The Divisional Court granted the motion for leave to appeal, with costs reserved to the panel hearing the appeal.

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.

The applicant franchisees sought leave to appeal an order that refused to restrain the franchisor from terminating their franchise agreements and granted an injunction restraining the franchisees from continuing to operate.

The court applied the test for leave to appeal under Rule 62.02(4)(b) of the Rules of Civil Procedure.

Finding no good reason to doubt the correctness of the motion judge's decision and no matters of general or public importance, the court denied leave to appeal and awarded costs to the respondent franchisor.

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.

The appellant appealed a summary judgment granted to the respondent bank on a line of credit.

The appellant argued that the bank breached the agreement by making advances without the authorization of both signatories.

The Court of Appeal found the line of credit agreement ambiguous on its face regarding whether 'the Customer' meant one or both signatories.

Concluding that this ambiguity required extrinsic evidence and a trial, the Court allowed the appeal and dismissed the motion for summary judgment.

The appellant appealed a trial judgment, arguing the trial judge erred in refusing an adjournment due to late disclosure, making blanket credibility findings, allowing an amendment to the interest rate claimed, finding an agreement on an 18 per cent interest rate, and awarding excessive costs.

The Court of Appeal dismissed all grounds of appeal, finding no prejudice from the late disclosure, sufficient support for credibility findings, that the interest rate amendment was not a new claim, and sufficient basis for the interest rate agreement.

The application to file fresh evidence was also dismissed, and costs of the appeal were awarded to the respondent.

The appellant appealed a judgment granting declaratory relief regarding his status as a director, shareholder, and administrator of a corporation.

The Court of Appeal dismissed the appeal, finding that the appellant had validly resigned as a director and could not unilaterally withdraw his resignation.

The court also held that the sole remaining non-resident director did not lose his status under the Business Corporations Act and had standing to call a shareholders meeting.

Furthermore, the issuance of shares to the appellant from the corporate treasury violated an existing cease-trading order under the Securities Act and was therefore invalid.

The appellant client appealed the dismissal of his motion for summary judgment against his former solicitor.

The appellant sought a declaration that his liability for legal fees was capped at $2,500 per month, which the solicitor disputed.

The Court of Appeal dismissed the appeal, finding that the conflicting positions regarding the retainer agreement raised issues of credibility and documentary interpretation that could not be resolved on a summary judgment motion.

The matter was directed to proceed before an assessment judge.