Morris Cooper

The plaintiff brought a motion for partial summary judgment seeking a determination that the commissioning stage of a contract for the design, manufacture and supply of aggregate processing equipment had been completed, thereby entitling it to payment of the final invoice.

The defendant opposed the motion and advanced a substantial counterclaim alleging negligence and breach of contract.

The court conducted a case management conference to triage the motion in accordance with the Malik v. Attia framework, which requires consideration of whether partial summary judgment would achieve proportionate, timely, and affordable justice.

The court declined to permit the partial summary judgment motion to proceed, finding that the issues were too intertwined and that determining the commissioning stage in isolation would not advance the litigation in an abbreviated fashion.

The defendants brought a motion to amend a previous order regarding a discovery plan and to remove a costs award against two individual defendants, Joseph Romano and Claudio Romano.

They argued that they failed to appear at the original motion due to insufficient notice, relying on Rule 37.14(1)(b) of the Rules of Civil Procedure.

The court granted the amendment to the discovery plan by consent.

However, the court dismissed the request to remove the costs order, finding that the moving defendants failed to provide sufficient evidence that their non-attendance at the original motion was due to insufficient notice, which is a precondition for relief under Rule 37.14(1)(b).

The court emphasized that a party who chooses not to appear cannot later complain about the outcome.

No costs were awarded for this motion.

The defendants brought a motion for leave to appeal an order of Verner J. dated February 27, 2023.

The Divisional Court denied the motion for leave to appeal and awarded costs to the responding parties fixed at $5,000 all inclusive.

The plaintiff's action regarding a cancelled wind power project was dismissed after a 10-year litigation.

The successful defendant sought costs on a substantial indemnity basis, relying on an offer to settle for $78,000 which the plaintiff had rejected.

The court applied Rule 49 and awarded substantial indemnity costs, but exercised its discretion to reduce the requested fees by nearly half due to the plaintiff's misfortune in dealing with the government's policy reversals.

The plaintiff was ordered to pay $300,000 in fees and $457,486.89 in disbursements.

The plaintiff sued the provincial government after a moratorium on offshore wind projects was announced on the exact day the plaintiff's project financing was set to close.

The plaintiff alleged the government intentionally timed the announcement to deprive it of litigation resources, and further claimed spoliation of evidence due to the government's deletion of senior staff emails.

The court granted summary judgment dismissing the action, finding no evidence the government knew of the financing timing and concluding the email destruction, while improper, was a routine practice not aimed at this specific litigation.

The defendant, Recipe Unlimited Corporation, moved to strike the plaintiff's (Angus Inc.) Statement of Claim under Rule 21.01(1)(b), alleging failure to plead material facts for claims of inducing breach of contract, intentional interference with economic relations, and "misrepresentation in the marketplace." The court dismissed the motion regarding inducing breach of contract and intentional interference, finding the pleadings sufficient.

However, the claim for "misrepresentation in the marketplace" interpreted as injurious falsehood, was struck with leave to amend due to insufficient particulars of malice and intent to induce non-dealing.

This endorsement addresses the costs of a motion where the Defendant was granted leave to amend its Statement of Defence late in the proceedings.

The Defendant sought costs for this motion, which the Plaintiff opposed, arguing that costs should instead be awarded to the Plaintiff to compensate for the prejudice caused by the late amendment.

The court, exercising its discretion under section 131 of the Courts of Justice Act, decided not to award costs for or against either party for the leave motion, finding the Plaintiff's opposition to be reasonable.

The defendant brought a motion for leave under Rule 48.04 to seek leave to amend its statement of defence under Rule 26.02(c), as the action had already been set down for trial.

The plaintiff opposed the motion, arguing that the delay in seeking the amendments was inordinate and presumed prejudice.

The court held that the mandatory language of Rule 26.01 governed, requiring amendments to be allowed unless there is non-compensable prejudice.

Finding no prejudice that could not be compensated in costs, the court granted the defendant leave to bring the motion and leave to amend the pleading.

This costs endorsement arose from a settled production motion and an unbrought security for costs motion.

The Plaintiff sought substantial or partial indemnity costs for the production motion, while the Defendant Province argued for costs to be reserved or a nominal partial indemnity.

The court found exceptional circumstances to award costs despite the settlement, primarily due to the Province's unresponsiveness and failure to meet deadlines, which caused the Plaintiff to incur unnecessary costs.

The Plaintiff's request for substantial indemnity was rejected, as was the Province's low offer.

The court fixed costs at $15,000 on a partial indemnity scale, payable by the Province to the Plaintiff within 30 days, finding this amount fair, reasonable, and proportionate.

The plaintiff, an elderly mother, brought a motion for a certificate of pending litigation against her daughter and son-in-law's family home, alleging they used her funds to purchase it.

The defendants argued the plaintiff's claims lacked substance and that she had previously transferred property to them with independent legal advice.

The court dismissed the motion for a certificate of pending litigation, finding that the plaintiff's delay, the availability of damages as an adequate remedy, and the debatable merits of her claim did not justify tying up the defendants' property.

The court also provided guidance on outstanding discovery refusals and adjourned that portion of the motion.

The court was tasked with approving legal fees for class counsel in the Brown action, part of the Sixties Scoop national settlement.

The supervising judge previously rejected a $75 million total fee agreement as excessive, suggesting class counsel in Brown should receive $25 million and counsel in the companion Riddle action $12.5 million.

However, after the Federal Court awarded the maximum $37.5 million to class counsel in Riddle, the court concluded it would be extremely unfair to award class counsel in Brown, who did the heavy lifting, anything less.

Consequently, the court approved the maximum $37.5 million in legal fees for class counsel in Brown.

Following the dismissal of the plaintiff's class action on a summary judgment motion, the successful defendant sought partial indemnity costs of $275,000.

The plaintiff argued the amount was unreasonable and duplicative of costs from an earlier certification motion, suggesting $50,000 was appropriate.

The court reviewed the principles of costs in class actions, noting the 'bet the company' nature of the litigation justified significant costs, but reduced the claimed amount due to excessive hours billed for preparation and cross-examination.

The court found no duplication and fixed costs at $215,000.

The plaintiff, representing a class of non-golfing and non-member shareholders of a golf and country club, brought a motion for summary judgment alleging that the club's board of directors engaged in oppressive conduct by selling treasury shares at reduced prices to attract new members.

The plaintiff argued this diluted shareholder equity and violated their reasonable expectations.

The Superior Court of Justice dismissed the class action, finding that the board's decision was a reasonable exercise of business judgment aimed at ensuring the club's financial viability.

The court held that the shareholders did not have a reasonable expectation that shares would only be sold at a specific minimum price, and the board fairly considered the interests of all stakeholders.

The representative plaintiff brought a motion to approve a national settlement agreement regarding the 'Sixties Scoop' class action.

The settlement provided between $550 million and $800 million in compensation and established a $50 million national foundation for reconciliation.

The court found the core settlement provisions fair, reasonable, and in the best interests of the class.

However, the court refused to approve the $75 million legal fees provision, finding it excessive and unreasonable in the context of a mega-fund settlement, and directed that the legal fees provision be de-linked from the rest of the settlement.

The appellant, a commercial condominium unit owner, sought to amend the condominium declaration to allow its employees access to recreational common elements (swimming pool, gymnasium, library, squash court) that were restricted to dwelling unit holders and their guests.

The application judge dismissed the application, holding that restrictions on the use of common elements need not be listed in Schedule F of the declaration under the Condominium Act.

The Court of Appeal affirmed, finding no error in the application judge's interpretation of the statutory provisions or his use of the zoning by-law to explain the declaration's proper interpretation.

Following the dismissal of the defendants' motion for partial summary judgment, the successful plaintiff sought costs on a substantial indemnity basis, relying on a Rule 49 offer to settle.

The court declined to award elevated costs due to the plaintiff's prior misconduct involving a purported wire transfer that was never actually sent.

Applying the principles of proportionality and reasonableness, the court fixed costs at $30,000 on a partial indemnity basis, payable to the plaintiff in any event of the cause.

The Grad defendants brought a motion for summary judgment to dismiss the plaintiff's claims of malicious prosecution, abuse of process, and false imprisonment against them.

The claims arose after the Grad defendants reported the plaintiff to the police over a contract dispute, leading to criminal charges that were later withdrawn.

The court dismissed the summary judgment motion, finding that a full trial was necessary to assess the defendants' motives and to avoid the risk of duplicative proceedings or inconsistent findings of fact, as the claims against the co-defendant police officers would proceed to trial in any event.

The appellants challenged the trial judge's decision on a franchise dispute under the Arthur Wishart Act (Franchise Disclosure), 2000.

The appellants argued that the trial judge erred in preventing cross-examination regarding the respondent's financing arrangements with Toronto Dominion Bank and in permitting counsel to reference the bank's judgment against the respondent.

The Court of Appeal upheld the trial judge's decision, finding that the source of funds paid by the franchisee to the franchisor is irrelevant to the statutory entitlement to refund under the Act.

The court affirmed that Ontario's legislated payback scheme requires the franchisor to refund all money received from the franchisee, regardless of how those funds were obtained.

The plaintiff brought a motion for leave to amend its Statement of Claim to add new corporate defendants and allegations of fraudulent conveyances against the individual defendant.

The individual defendant opposed the motion, arguing the claims were statute-barred under the Limitations Act, 2002 and that the original corporate defendant had been dissolved.

The court found that the claims were not clearly statute-barred, noting the potential application of the 10-year limitation period under the Real Property Limitations Act for guarantees related to mortgages, and that the Business Corporations Act permits proceedings against dissolved corporations.

The motion to amend was granted.

The applicant, owner of two commercial units in a condominium, sought an order to amend the condominium declaration to allow its employees access to the recreational facilities, or alternatively, to reduce its contribution to common expenses.

The applicant argued that the declaration's restriction limiting recreational facility use to residential unit owners was inconsistent with the Condominium Act, 1998.

The court dismissed the application, finding that the declaration properly restricted the use of common elements under section 7(4)(b) of the Act and complied with a site-specific municipal by-law.

The court also affirmed that condominium fees do not need to directly correlate with the actual cost of maintaining common elements.