M.R. Kestenberg

This endorsement addresses the costs of a summary judgment motion and the underlying action, where the plaintiff's claims were dismissed.

The successful defendant sought substantial indemnity costs, arguing unsupported allegations of intentional misconduct and an early settlement offer.

The court rejected substantial indemnity, finding the allegations did not constitute fraud or dishonesty and that an early offer does not automatically warrant elevated costs.

Assessing costs on a partial indemnity basis, the court reduced the quantum sought by the defendant, citing the assignment of two senior lawyers to a moderately complex and relatively straightforward matter.

The court fixed costs at $15,000 inclusive of HST and disbursements.

The plaintiff, Michael St. Jean Realty Inc. (SJR), a real estate brokerage, sued the defendant, Scarfone Hawkins LLP, alleging breach of trust, interference with economic relations, and detinue regarding unpaid commissions from condominium sales.

SJR claimed an agreement with the developer (467 Charlton Avenue Inc.) for commissions to be held in trust by Scarfone Hawkins LLP, which were then improperly disbursed to creditors.

Scarfone Hawkins LLP brought a motion for summary judgment seeking dismissal of SJR's claim.

The court granted the motion, dismissing SJR's action, finding no evidence of a specific trust created for SJR or that Scarfone Hawkins LLP was aware of such a trust or acted dishonestly in disbursing funds according to creditor directions.

The plaintiff landlord sought summary judgment for approximately $800,000 in alleged unpaid rent from its commercial tenant and guarantor, arising from the tenant paying only 50% of minimum rent after opening its store before certain parking spaces were provided.

The dispute turned on whether a lease amending agreement implicitly removed the tenant’s contractual right to pay reduced rent when opening conditions were unmet.

The court applied principles of contractual interpretation emphasizing objective intention derived from the text and surrounding circumstances.

It held that the amendment concerning alternative parking did not modify the tenant’s right under the original lease to pay 50% rent until the required parking spaces were delivered.

The landlord’s claim for back rent was dismissed and the related summary judgment motion by the landlord’s former lawyers seeking dismissal of the negligence claim against them was also dismissed.

The applicants, a group of companies owned by Dondeb Inc., sought an Initial Order under the Companies' Creditors Arrangement Act (CCAA) to enable an orderly liquidation of their assets.

The application was opposed by approximately 75% of the secured creditors, who argued for individual receiverships due to a lack of confidence in the applicants' principal and the burden of CCAA administrative costs.

The court dismissed the CCAA application, finding it unlikely that a successful plan could be developed and approved by the creditors.

Instead, the court issued a Global Receivership Order, which was supported by the opposing creditors, to achieve an orderly liquidation at a lower cost.