Michael G. McQuade

The plaintiff sought to enforce a 2008 Quebec default judgment against the defendants in Ontario.

The defendants raised a two-year limitation period defence under the Limitations Act, 2002.

The plaintiff argued that the action was not prescribed due to acknowledgment of debt, discoverability, or promissory estoppel.

The court found no valid written acknowledgment, rejected the discoverability argument as the plaintiff knew or ought to have known the defendants were domiciled in Ontario and had means to enforce the judgment, and dismissed the promissory estoppel claim due to a lack of evidence of an intention to affect legal relations regarding the limitation period.

The action was dismissed as prescribed, and costs were awarded to the defendants.

This costs endorsement addresses the plaintiff Belcap Management Inc.'s request for costs following the defendant Marjorie Dixon's withdrawal of a motion.

Dixon had sought to refer the action to an Associate Judge for trial and case management alongside related lien actions, arguing that all matters arising from the same construction project should be managed together.

However, the related lien actions settled, rendering Dixon's motion moot.

Belcap sought $8,503 in partial indemnity costs, while Dixon offered to withdraw her motion on a without-costs basis.

The court, exercising its discretion under section 131(1) of the Courts of Justice Act and Rule 57, awarded Belcap $3,000, noting that while the underlying motion was moot, it was likely Dixon's motion would have been successful had it been argued.

The proposed intervenors, who are 40% shareholders of the respondent corporation, brought a motion for leave to intervene in applications concerning the management and interests of a residential property.

They alleged that a settlement reached by the respondent's representative was done without their required consent under a unanimous shareholders agreement.

The applicants objected based on the indoor management rule.

The court granted the motion to intervene, finding that the proposed intervenors had an interest in the proceeding and could be prejudiced by the outcome.

This urgent motion before the Court of Appeal addressed whether a non-party, John Kavanagh, had an automatic right to appeal or should be granted leave to appeal two approval and vesting orders related to the sale of properties in a mortgage enforcement and insolvency proceeding.

The Receiver brought the motion to prevent automatic stays of the property sales.

The court found no automatic right of appeal under s. 193(c) of the Bankruptcy and Insolvency Act (BIA) because the orders were procedural and no loss exceeding $10,000 was demonstrated.

The court also denied leave to appeal under s. 193(e) of the BIA, concluding that the issues raised were not of general importance, lacked prima facie merit, and granting leave would unduly hinder the insolvency proceedings.

Consequently, Kavanagh's notices of appeal were quashed, and his motions for leave to appeal were dismissed, ensuring the property sales could proceed without automatic stays.

This is a costs endorsement following an appeal from a Superior Court judgment.

The Court of Appeal invited the parties to make written submissions on costs after issuing reasons on May 23, 2019.

The parties were unable to reach agreement and submitted written arguments.

The Court awarded costs to the appellant against one of the respondents.

The appellant leased commercial premises from the respondent with a right to renew for five years.

The appellant sublet the premises to a third party without reserving the last day of the head lease term.

When the appellant attempted to exercise its renewal option, the respondent claimed the appellant had forfeited its rights through an assignment.

The application judge failed to resolve this central issue and instead found a breach of contract with no damages.

The Court of Appeal allowed the appeal, holding that section 3 of the Commercial Tenancies Act permits a sublease even without reserving the last day of the head lease term, provided there is sufficient evidence that the parties did not intend an assignment.

The sublease language clearly demonstrated the parties' intent to preserve the appellant's renewal rights.

This costs endorsement followed a discharge motion for an interim receiver.

The Interim Receiver and Fasken, Martineau DuMoulin LLP sought substantial indemnity costs against Nyaz Jethwani, who had opposed the discharge and fee approvals.

The court found Jethwani was not a public interest litigant and was responsible for costs incurred due to his opposition.

However, the offers to settle did not meet Rule 49 requirements, and Jethwani's conduct, while causing unnecessary costs, was not reprehensible enough for substantial indemnity.

The court awarded partial indemnity costs to the Interim Receiver ($75,000) and Faskens ($54,000), plus $2,500 each for the costs motion itself.

The applicant, a former tenant, sought to enforce a lease renewal option and claim damages for breach of contract against the landlord and sub-tenant.

The court found that both the landlord and sub-tenant breached their duties of good faith and contractual obligations to the applicant regarding the renewal.

However, no monetary damages were awarded to the applicant because the fair market rent for the renewed term would have resulted in a break-even scenario.

The application for specific enforcement was denied, and the applicant was ordered to return a $10,000 deposit to the sub-tenant.

No costs were awarded due to the mixed outcome.

This case involved a dispute over a commercial condominium Agreement of Purchase and Sale.

The Purchaser failed to close on the fixed date, requesting extensions which the Vendor refused.

The Purchaser sued for specific performance and relief from forfeiture, moving for a certificate of pending litigation.

The Vendor sued for a declaration that the agreement was terminated and forfeiture of deposits, moving for summary judgment.

The court dismissed the Purchaser's action and motion, granting the Vendor's summary judgment.

It held that the duty of good faith in a discreet real estate transaction does not override strict contractual terms regarding closing dates.

The court ordered forfeiture of the $40,000 in deposits but ordered the return of $31,999.50 paid on account of interim closing funds, distinguishing between true deposits and payments on account.

The plaintiffs advanced funds to a corporation that later went into receivership.

The plaintiffs sought repayment from the individual defendants based on a poorly drafted document entitled 'Agreement to Purchase'.

The court applied the factual matrix approach to contractual interpretation and concluded that the document was intended to be a personal guarantee by the individual defendants for the corporation's debt.

Judgment was granted in favour of the plaintiffs for the outstanding principal and interest.

The plaintiff sought certification of a proposed class action arising from an alleged investment fraud involving monies deposited into bank accounts held at the defendant bank.

Earlier reasons had found the certification criteria satisfied except for the adequacy of the litigation plan under s. 5(1)(e)(ii) of the Class Proceedings Act, 1992.

After filing a revised litigation plan addressing communication with class members, management of damages, and procedural issues including a jury notice, the court determined the deficiencies had been remedied.

The court approved revised common issues and concluded the statutory requirements for certification were met.

The proceeding was certified as a class action and a representative plaintiff was appointed.

The plaintiff sought certification of a proposed class proceeding against a financial institution relating to losses arising from a fraudulent investment scheme involving a tooth whitening promotion.

Earlier reasons had found that the criteria under s. 5 of the Class Proceedings Act, 1992 were satisfied except for the requirement that the representative plaintiff adequately represent the class.

The court had concerns regarding the plaintiff’s health following a stroke and his ability to perform the role.

After further medical evidence was filed, including expert neurological evidence confirming no cognitive impairment, the court accepted that the plaintiff could adequately represent the class and that the litigation plan addressed communication with class members and management of damages.

The court concluded that the statutory criteria were met and certified the proceeding as a class action.

The plaintiff sought to certify a class action against the Bank of Montreal (BMO) arising from a $77 million Ponzi scheme perpetrated by Salim Damji.

The plaintiff alleged that BMO knowingly assisted in Damji's breach of trust, knowingly received fraudulent funds, and was negligent in its receipt of these funds.

The court granted leave to bring the certification motion and found that the plaintiff met the first four criteria for certification under s. 5(1) of the Class Proceedings Act.

However, the court found the representative plaintiff's health issues and deficiencies in the litigation plan rendered the final criterion unsatisfied.

The certification motion was adjourned for 30 days to allow the plaintiff to address these deficiencies.

Following a civil judgment awarding $3.5 million, the court determined the appropriate quantum of costs and pre-judgment interest.

The parties agreed the successful party was entitled to partial indemnity costs to September 30, 2010 and substantial indemnity costs thereafter but disputed the applicable hourly rates.

The court fixed partial indemnity rates for counsel after mediation and accepted substantial indemnity rates calculated at 1.5 times the partial indemnity rate pursuant to Rule 1.03 of the Rules of Civil Procedure.

The court also addressed deductions for certain attendances and confirmed taxable disbursements.

Pre-judgment interest was ordered on the judgment amount from August 27, 2003 at 3.3% pursuant to s.127(1) of the Courts of Justice Act.