Mitchell Lightowler

Following dismissal of the plaintiff's environmental contamination action after trial, two successful defendants sought substantial indemnity costs or, alternatively, a large mixed-scale costs award.

The court held that elevated costs were not justified because the action, while unsuccessful, was not meritless and the plaintiff's litigation conduct fell within the ordinary thrust and parry of adversarial litigation rather than reprehensible or sanction-worthy conduct.

Applying the governing principles of reasonableness, proportionality, and the Rule 57.01 factors, the court found the claimed partial indemnity costs reasonable given the complexity, duration, and importance of the case.

Costs were awarded on a partial indemnity basis in the amount of $573,334.89 inclusive of HST and disbursements.

The appellants appealed an Associate Judge's order dismissing their motion for a Certificate of Pending Litigation (CPL) against the respondents' matrimonial home.

The appellants alleged the transfer of the home from the respondent husband to his wife was a fraudulent conveyance to defeat creditors in an underlying action regarding a condominium development.

The Superior Court dismissed the appeal, finding the Associate Judge correctly applied the Grefford test, properly excluded an affidavit from a separate proceeding, and reasonably concluded the appellants failed to establish a high probability of success in the main action or that the balance of convenience favoured a CPL.

The appellant commercial unit owners sought leave to appeal and to set aside an arbitration award that dismissed their oppression claims against the respondent condominium corporation.

The appellants alleged the respondent failed to enforce its declaration regarding unauthorized business uses.

The Superior Court dismissed the motion, finding that the parties were bound by an arbitration agreement that precluded appeals.

The court also found no breach of procedural fairness, as the appellants had a full opportunity to present their case and the arbitrator provided logical and transparent reasons for concluding they failed to prove oppression.

This costs endorsement follows a successful application by Figaro Dominion Ltd. and Figaro Gate Ltd. for a permanent injunction restraining the developer from obstructing a laneway and parking behind the applicants’ units.

The court awarded the applicants $33,000 in costs against the developer and awarded the Church full indemnity costs of $68,076.53, also payable by the developer.

The decision addresses the scale and quantum of costs, the effect of settlement offers, and the application of an indemnity clause in a Crane Swing Agreement.

The Applicants, commercial landlords, sought a permanent injunction against the Developer and the Church regarding the use of a right-of-way (ROW) over a laneway behind their properties.

The court found that the Developer’s construction activities, including staging, parking, and storage, substantially interfered with the Applicants’ use of the ROW, particularly for parking and access by tenants and customers.

The court granted a permanent injunction restraining the Developer from obstructing the laneway and from allowing its workers to park directly behind the Applicants’ units, but declined to order removal of all construction equipment due to the stage of construction and delay in seeking relief.

The Court of Appeal for Ontario allowed the appeal in part, finding no error in the trial decision except for the quantum of damages.

The court ordered the judgment to be amended to reduce damages by $1,310,000 to reflect deposits paid by the appellant and to correct the amount of pre- and post-judgment interest.

Costs of the appeal and trial were fixed in favour of the Receiver.

The decision concerns a dispute over the return of a deposit following the termination of an agreement of purchase and sale (APS) for a property, in the context of a receivership and subsequent refinancing.

The court orders the return of the deposit to 2557905 Ontario Inc., with interest only from the date the deposit was placed in an interest-bearing account, and denies the listing broker's request for costs from the deposit.

The appellant, 2557904 Ontario Inc. (the stalking horse bidder), appealed a motion judge's order that dismissed the receiver's motion for an approval and vesting order (AVO) and instead approved the debtor's (1000093910 Ontario Inc.) motion to redeem a first mortgage.

The Court of Appeal found the motion judge erred by not ensuring 255 received compensation for costs thrown away and by granting provisional enforcement of the order after an appeal notice was filed.

The appeal was allowed in part, varying the order to require the debtor to pay $300,000 in compensation to 255 and setting aside the provisional execution.

The court also ordered that if the refinancing transaction does not close, the AVO for 255 will be granted.

The Court of Appeal heard motions in an appeal concerning the receivership of a debtor's property.

The appellant, a successful bidder, appealed two lower court orders that terminated its Stalking Horse Agreement and approved the debtor's refinancing transaction.

The motion judge referred several issues to a panel, including the appellant's standing and right to appeal, and whether the lower court erred in terminating the agreement and granting provisional enforcement.

The Court of Appeal continued the stay of provisional execution of the lower court orders, emphasizing the importance of maintaining the integrity of court-approved sale processes, especially given the absence of reasons from the motion judge for his initial decision.

The moving parties brought a motion for leave to appeal a costs order made by the lower court.

The Divisional Court dismissed the motion for leave to appeal.

Costs of the motion were awarded to the respondent in the fixed, all-inclusive amount of $5,000.

1000093910 Ontario Inc., a company in receivership, appealed the motion judge’s decision to decline hearing its cross-motion and to grant the receiver’s proposal for a public auction of its primary asset.

The cross-motion sought to vary the receivership order and enforce an earlier agreement of purchase and sale (APS).

The Court of Appeal dismissed the appeal, finding that the motion judge's discretionary decision not to hear the cross-motion was not erroneous, given the appellant's late service of materials and the low chance of success for the earlier APS.

The court also found no error in principle in the motion judge's approval of the receiver's proposed sales process, which included a "stalking horse" agreement, as it was fair, transparent, and aimed at optimizing the asset's price.