Morris Michael Title

The appellants appealed a trial judgment granting the respondents partial relief from forfeiture.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's conclusion that the forfeiture clause was penal and that retaining the full amount of the instalments would be unconscionable given the disparity with the value of the work performed.

Costs of the appeal were awarded to the respondents in the amount of $10,000.

The appellant commercial tenant brought an application for declaratory relief under the Commercial Tenancies Act regarding responsibility for lease improvements.

The application judge dismissed the application, finding the appellant had repeatedly acknowledged responsibility for the improvements and executed promissory notes.

The Court of Appeal dismissed the appeal, holding that the application judge's findings were amply supported by the record.

The Court of Appeal previously dismissed the appeal with costs.

In this costs endorsement, the court fixed the costs of the respondents Ivandaeva Total Image Salon Inc. and Denis Ivandaev.

Noting that their counsel provided very little assistance on the central issue of the appeal, the court awarded costs on a partial indemnity scale fixed at $3,000 inclusive of disbursements, plus GST.

The respondent Elena Ivandaeva did not participate and was not awarded costs.

The appellants, defendants in commercial litigation, sought to set aside a sealing order made in a separate matrimonial proceeding involving the plaintiff.

The appellants' counsel had accessed the matrimonial file, which had not been physically sealed due to an administrative error, and copied documents to use in the commercial litigation.

The motion judge ordered the appellants to comply with the sealing order and dismissed their cross-motion to set it aside.

The Court of Appeal dismissed the appeal, holding that the appellants were not 'persons affected' by the sealing order within the meaning of Rule 37.14(1) of the Rules of Civil Procedure, as their proprietary or economic interests were not directly affected, and therefore they lacked standing to challenge it.

In an addendum to judgment regarding costs of an appeal, the respondents sought costs totaling $132,145.72.

The appellants opposed, seeking a stay of costs for one insolvent respondent, arguing for the application of the pre-2002 party and party costs regime, and challenging the hourly rates of junior counsel.

The Court of Appeal dismissed the stay request, held that the new costs grid under O. Reg. 284/01 applies retrospectively to services rendered before January 1, 2002, and reduced the hourly rates for certain junior counsel.

Total costs of $122,998.02 were awarded to the respondents on a partial indemnity basis.

The appellants, holders of debentures issued by BCED, appealed a trial judgment finding that a series of corporate reorganizations and asset transfers did not breach a successor obligor clause in the trust indenture.

The clause prohibited BCED from transferring 'all or substantially all' of its assets unless the transferee assumed the debenture debt.

The Court of Appeal dismissed the appeal, holding that the asset transfers did not meet either the quantitative or qualitative threshold to constitute 'all or substantially all' of BCED's assets.

The Court also found that a subsequent guarantee and foreclosure did not constitute a prohibited 'transaction' under the trust indenture, as the indenture expressly permitted BCED to incur and secure senior indebtedness.