Morris Michael Title

Following a successful appeal that set aside a summary judgment and remitted the matter for trial, the Court of Appeal received written submissions on the costs of the summary judgment motion.

The appellant sought $100,000 on a partial indemnity basis, while the respondent argued for a lower amount due to alleged duplicative steps.

The Court fixed the costs of the summary judgment motion payable to the appellant at $80,000 inclusive of disbursements and HST.

Jack Ganz Consulting Ltd. (JGC) appealed a summary judgment dismissing its breach of contract and dependent contractor claims against Recipe Unlimited Corporation (Cara).

JGC alleged Cara breached a 2006 consulting agreement, including a stock option provision, and failed to provide reasonable notice upon termination.

The motion judge found JGC waived an auto-renewal clause, terminating the agreement in 2010, and that no other written agreement replaced it.

The Court of Appeal found the motion judge erred in finding a unilateral waiver for no consideration and that there was a genuine issue for trial regarding the terms governing the parties' relationship after 2008, given the uncertainty in the record and the parties' conduct.

The appeal was allowed, the summary judgment set aside, and the matter remitted for trial.

Following the dismissal of the plaintiff's $27 million breach of contract claim on summary judgment, the successful defendant sought costs on a substantial indemnity basis.

The defendant relied on the plaintiff's conduct and a pre-litigation offer to settle for $70,000.

The court found the plaintiff's conduct was not reprehensible and held that Rule 49 cost consequences do not apply to pre-litigation offers.

The court awarded the defendant partial indemnity costs fixed at $180,000, applying a reduction to the defendant's claimed hours and rates for proportionality.

A case management teleconference was held to schedule an appeal from a decision of Charney J. The Divisional Court directed that the appeal proceed by ZOOM videoconference and provided procedural directions for the electronic filing of materials, including factums, compendiums, and costs outlines.

The appellants appealed from a motion judge's order dismissing their motion for a declaration that they were entitled to indemnification for legal fees and expenses under a consulting agreement.

The Court of Appeal determined that the order was interlocutory rather than final because it did not address the substantive merits of whether the consulting agreement required advance payment of legal fees or whether there had been a breach.

The court quashed the appeal and noted that the appellants could seek leave to appeal to the Divisional Court or bring a separate application for interpretation of the agreement.

The plaintiff consultant brought a motion to enforce a contractual indemnification provision for the advance payment of legal fees by the defendant companies.

The motion was brought before the close of pleadings.

The court found that the corporate indemnity provisions of the CBCA and OBCA did not apply because the consultant was a corporation, not an individual officer or director.

However, the court dismissed the motion, concluding that the relief sought effectively amounted to a partial summary judgment or a mandatory injunction, and the plaintiff had not complied with the requirements for either.

The appellants, owners of a residential property in Caledon, Ontario, appealed a decision dismissing their application against the Ontario Heritage Trust and a local resident.

The appellants' property is accessible only via a 1 km driveway through parkland owned by the OHT, over which they hold an easement for ingress and egress.

The appellants claimed the easement granted them exclusive use of the driveway and sought to prevent public access by hikers using trails on the OHT property.

The court upheld the lower court's decision, finding that the deed of easement did not grant exclusive use, that public use by hikers did not substantially interfere with the appellants' easement rights, and that an injunction against the publication of a hiking guide was not warranted.

The moving party sought to discharge a Certificate of Pending Litigation (CPL) obtained ex parte by the responding parties over a property slated for redevelopment.

The dispute centered on an alleged agreement to sever and transfer a heritage house on the property to the responding parties.

The court applied the Dhunna factors and found that the responding parties' interest was primarily financial rather than a genuine claim for specific performance of unique land.

The court ordered the CPL discharged on the condition that the moving party post $1 million in security, allowing the redevelopment project to proceed.

The appellants brought an action to enforce promissory notes and a claim for fraudulent conveyance.

The motion judge granted summary judgment to the appellants on the promissory notes but dismissed their fraudulent conveyance claim.

On appeal, the appellants argued the motion judge erred in dismissing the fraudulent conveyance claim when the defendants had not moved for summary judgment.

The Court of Appeal dismissed the appeal, confirming that summary judgment may be granted against a moving party.

The cross-appeal was allowed in part on consent to reduce the damages awarded on the promissory notes from $710,000 to $650,000.

The prospective appellant sought leave to appeal an order requiring its representatives to re-attend an examination and pay costs.

The appellant argued the underlying contempt motion was a nullity because it was brought on the civil motion list rather than in Bankruptcy Court.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's conclusion that the motion was properly brought in both emanations of the Superior Court.

A commercial tenant brought an action alleging breach of an exclusive use clause in a shopping mall lease, claiming loss of profits after its restaurant business failed.

The landlord counterclaimed for unpaid rent and utilities and sought to enforce a personal guarantee provided by the tenant’s principal.

The court dismissed the tenant’s claim and found that lease covenants are independent, meaning rent remained payable regardless of the alleged breach.

The guarantor could not rely on alleged oral amendments or the absence of a separate indemnity document to avoid liability under the written guarantee.

Judgment was granted on the counterclaim for rent arrears with contractual interest and substantial indemnity costs.

The appellants appealed a Master's order striking their statement of defence and counterclaim for failing to comply with a prior order to answer discovery refusals and produce records.

The Divisional Court allowed the appeal, finding the Master erred in law by stating she had 'no choice' but to strike the pleadings, thereby failing to exercise her discretion.

Conducting a de novo review, the Court held that striking pleadings is an extreme remedy of last resort and granted the appellants a 'last chance' order to comply within a short timeframe.

The defendant brought a motion to dismiss the plaintiff's construction lien action for failure to pay a previous costs award.

The plaintiff brought a cross-motion to stay its own action and compel the defendant to participate in arbitration pursuant to their contract.

The court held that a master does not have jurisdiction to appoint an arbitrator under section 10(1) of the Arbitration Act, as that requires an application to a judge.

The court exercised its discretion under section 47 of the Construction Lien Act to dismiss the remaining contract action, noting it served no purpose after the lien was discharged.

The court also dismissed the action based on the plaintiff's failure to pay the prior costs award.

The appellants appealed a trial decision awarding the plaintiffs $20,000 for a purchaser's lien and dismissing their counterclaim and crossclaims, as well as the subsequent costs awards.

The appellants argued the $20,000 award constituted double recovery because the plaintiffs had previously settled with other defendants for $400,000.

The Divisional Court dismissed the appeal, finding no double recovery because the purchaser's lien claim was only advanced against the appellants.

The court also found no error in principle in the trial judge's discretionary costs awards.

The appellants appealed a trial judgment finding them liable for unpaid construction work.

The principal issue on appeal was whether the trial judge erred in refusing to re-open the trial to admit articles of revival for a dissolved corporate defendant, which the individual appellant sought to introduce after judgment was rendered.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's conclusion that the evidence could have been discovered sooner with reasonable diligence and that the refusal to re-open the trial was a proper exercise of discretion.

The defendant general contractor brought a motion to set aside a noting in default and default judgment obtained by the plaintiff subcontractor in a construction lien action.

The plaintiff had served the statement of claim by registered mail to an address it knew the defendant no longer occupied, despite knowing the defendant's actual business address.

The court found the defendant moved promptly upon learning of the default judgment, adequately explained the default due to the method of service, and provided sufficient evidence of a defence based on alleged deficiencies and the lien being registered out of time.

The motion was granted and the default judgment was set aside with no order as to costs.

The appellant tenant appealed the dismissal of its action on a motion for summary judgment regarding a commercial lease termination.

The tenant argued the landlord was not entitled to terminate the lease, failed to provide proper notice of default, and that a post-termination agreement was unconscionable.

The Court of Appeal dismissed the appeal, finding the security deposit was deficient, the notice of default was sufficient under the Commercial Tenancies Act, and the post-termination agreement was not unconscionable as there was no inequality of bargaining power or unfairness.

The appellant appealed a trial judgment awarding it $203,000 in damages for breach of contract, negligent misrepresentation, and breach of fiduciary duty arising from mortgage advances.

The appellant sought the full amount of the mortgage advances ($2.7 million).

The respondents cross-appealed, arguing the action should be dismissed due to novation.

The Court of Appeal dismissed both the appeal and cross-appeal, finding the trial judge correctly applied a common sense view of causation in determining that the substitution of a new debtor broke the chain of causation, and that the novation argument failed because the appellant's claim was based on the Mortgage Administration Agreement, not the loan itself.

The appellant appealed a trial judgment regarding damages and costs arising from a breach of fiduciary duty.

The Divisional Court dismissed the appeal on damages, finding no error in the trial judge's calculation or refusal to award punitive damages.

However, the court allowed the appeal on costs, finding the trial judge erred in denying costs under Rule 76.13(3) because the action included non-monetary claims and faced a substantial counterclaim, making the ordinary procedure appropriate.

The appellant was awarded trial costs on a partial indemnity basis.

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.