Myron W. Shulgan

The appellant appealed an interlocutory order of the Superior Court refusing to order payment into court of a "costs reserve." The Court of Appeal held it lacked jurisdiction over the appeal, characterizing the order as interlocutory and akin to an order dismissing a motion for security for costs.

The court directed that an appeal from such an order must be brought to the Divisional Court, with leave.

Costs were awarded to the respondents in the agreed amount of $7,500 all inclusive.

The plaintiff commenced an action in January 2018 claiming over $5 million in damages arising from a crop failure allegedly caused by the defendant's seeds.

The action was administratively dismissed for delay on March 12, 2025, pursuant to Rule 48.14(1) of the Rules of Civil Procedure.

The plaintiff moved to set aside the dismissal and sought approval of a litigation timetable.

The defendant opposed the motion, arguing that the action was over seven and a half years old with no explanation for five years of delay.

The court granted the motion to set aside the dismissal, finding that the plaintiff satisfied the legal test despite significant delay.

The court imposed a timetable for completion of examinations, undertakings, mediation, and trial set-down, and ordered the plaintiff to pay the defendant's costs of $6,500.

The plaintiff debtors brought a motion for leave to pay the full amount owing to the defendant creditor into court and for an order discharging the encumbrances held as security.

The creditor refused to accept payment unless it was provided with the source of the funds and an additional $500,000 for legal costs.

The court found the creditor's conditions unreasonable, noting that the funds were coming directly from a Schedule III bank and that the credit agreement did not entitle the creditor to costs for defending a breach of contract action brought by the debtors.

The motion was granted.

The court dismissed Farm Credit Canada's application for the appointment of a receiver over the assets of Kapital Produce Ltd. and related companies.

The court found that, although there were alleged events of default under the credit agreement, most were cured within the required period and did not constitute actionable defaults.

The court held that the appointment of a receiver was not just or convenient in the circumstances, given the significant value of the security held by FCC, the lack of evidence of irreparable harm or risk to the assets, and the Debtors' ongoing efforts to resolve the indebtedness.

This appeal arose from a tragic boat accident involving multiple fatalities and injuries.

The Court of Appeal addressed three consolidated appeals: liability of government respondents, interpretation of the Marine Liability Act's monetary cap, and costs.

The court upheld the motion judge's finding that the boat operators were solely liable for the accident, dismissing the appeal against the government respondents.

It also affirmed that the Marine Liability Act's monetary cap for maritime claims for loss of life or personal injury does not include costs and interest.

While leave to appeal the quantum of costs and the Sanderson Order was denied, leave was granted on one specific costs issue, resulting in both estates being held jointly and severally liable for one plaintiff's costs.

The appellant sought to enforce an alleged agreement, contained in an email exchange, for the acquisition of shares in a family corporation and a declaration that the respondent had consented to the sale of shares owned by one of her brothers.

The motion judge found no binding agreement, determining that essential terms regarding the transaction's structure, method of payment, and dividend payments were not settled.

The Court of Appeal upheld this decision, affirming that the structure and method of payment, which directly impacted the net-of-tax amount, and the precise terms of dividend payments were essential terms that had not been agreed upon.

This appeal concerned the interpretation of a termination clause in an agreement of purchase and sale (APS).

The clause allowed the seller to terminate if the buyer did not complete a pre-consultation meeting with the municipality within four weeks of signing the APS.

The buyer argued a meeting held *before* the APS was signed satisfied the condition.

The application judge found the clause required a meeting *after* signing and refused to convert the application to an action.

The Court of Appeal dismissed the appeal, upholding the application judge's decision not to convert the application to an action and her interpretation of the contract, finding no palpable and overriding error.

A dissenting judge argued the application judge erred in fact by mischaracterizing the pre-signing meeting and in law by failing to give effect to the word "completed" in the clause.

The claimant sought compensation for the expropriation of portions of its properties by the City of Windsor for a road improvement project.

The claimant claimed damages for the value of the lands taken, injurious affection, and business losses.

The Tribunal preferred the expert evidence of the respondent's real estate appraiser and business valuator over the claimant's experts, finding the claimant's experts' reports flawed and unsupported.

The Tribunal awarded the claimant $194,000 for the market value of the lands and injurious affection, and $13,644 for business losses, for a total compensation of $207,644.

This ruling addresses the costs of an application where the applicants successfully obtained an order terminating an Agreement of Purchase and Sale via summary judgment.

The applicants sought $37,052.24 in partial indemnity costs, citing complexity and importance.

The respondent argued the matter was not complex and proposed a maximum of $15,000.

The court, applying principles of reasonableness and proportionality, awarded the applicants $25,000 inclusive of disbursements and HST.

This decision addresses costs following summary judgment motions in two consolidated actions stemming from a fatal boating accident.

The court had previously found the individual defendants (Comrie and Monteiro Estates) liable for the accident, while dismissing claims against the government defendants (Canada, Ontario, and Leamington).

The court awarded partial indemnity costs to the successful plaintiffs (Algra and Feltham) against the individual defendants.

Crucially, the court also granted a Sanderson order, directing the individual defendants (Comrie and Monteiro Estates) to jointly and severally pay the costs of the successful government defendants.

The court found it reasonable for the plaintiffs to have sued multiple defendants given the complex facts, lack of eyewitnesses, and the individual defendants' attempts to shift blame to the government entities.

The applicants sought a declaration that they validly terminated an Agreement of Purchase and Sale for commercial property.

The agreement included a termination option if the respondent failed to complete a pre-consultation meeting with the municipality within four weeks of signing.

The respondent argued a meeting held prior to signing satisfied the condition and sought to convert the application into an action.

The court held the matter could proceed by application as it involved contract interpretation, found the prior meeting did not satisfy the condition, and declared the agreement validly terminated.

The moving parties, the estates of the deceased boat operator and owner, brought a Rule 21 motion to determine whether the $1,000,000 liability cap under s. 29(a) of the Marine Liability Act is inclusive or exclusive of costs and prejudgment interest.

The actions arose from a fatal boating accident on Lake Erie.

The court applied the modern principle of statutory interpretation and concluded that claims for costs and interest serve different purposes than claims for loss of life or personal injury.

The court ruled that the statutory limitation is exclusive of costs and interest.

The plaintiffs brought negligence actions following a fatal nighttime boating accident where a pleasure craft struck a breakwater, resulting in three deaths and two serious injuries.

The plaintiffs sued the estates of the vessel's operator and owner, as well as the federal, provincial, and municipal governments.

On summary judgment motions for liability, the court found the operator and the owner/master jointly and severally liable, apportioning fault equally at 50 percent each, due to their failure to keep a proper lookout, travelling at an unsafe speed, and the operator's impairment.

The actions against the government defendants were dismissed, as the court found that the existing navigation lights were visible and any alleged failures regarding the breakwater's illumination or background lighting did not cause or contribute to the collision.

A case management conference was held regarding a claim for land compensation and injurious affection arising from the expropriation of property by the respondent for road reconstruction.

The parties submitted a draft procedural order on consent and requested a six-day hearing.

The Tribunal issued the procedural order and scheduled the hearing to commence on November 22, 2022.

The defendant appealed an Associate Judge's order dismissing its motion for security for costs against the foreign plaintiff.

The plaintiff, a Washington State corporation, sued for unpaid commissions and damages for breach of contract.

The Superior Court dismissed the appeal, finding that the Associate Judge applied the correct legal test from Yaiguaje by holistically considering the justness of the order, and made no palpable and overriding errors of fact in relying on the plaintiff's principal's undertaking to make personal funds available.

The claimant sought compensation for lands taken by the respondent municipality for road reconstruction and injurious affection under the Expropriations Act.

At the first Case Management Conference, the parties advised the Tribunal that the discovery process was ongoing and they were not yet in a position to finalize a Procedural Order or set a hearing date.

The Tribunal directed the parties to provide a written update on the progress of discovery and deferred setting a date for a further Case Management Conference.

The claimant sought $150,000 in damages for injurious affection, alleging business losses due to the temporary closure of an intersection during the construction of the Rt.

Hon. Herb Gray Parkway.

Following a period of inactivity and missed status hearings, the Tribunal convened a status hearing at the mutual request of the parties.

The Tribunal scheduled a two-day video hearing for April 2022 and issued procedural directions for the exchange of witness statements and a joint document book.

A telephone conference call was held to determine the status of a procedural order in a land compensation claim under the Expropriations Act.

Counsel for the claimant failed to attend the hearing, as well as a previous hearing.

The Tribunal adjourned the hearing and returned the file to the Case Coordinator for further direction.

The appellant purchased commercial property subject to an easement, with a vendor take-back mortgage that would be reduced by $442,000 if the vendor failed to register a valid release of the easement within one year.

The vendor obtained a court order discharging the easement and registered it two days before the deadline, but the order was subsequently appealed.

The Divisional Court allowed the purchaser's appeal, holding that while a court order can satisfy the requirement for a release, an order subject to subsisting appeal rights does not provide the bargained-for certainty of good title.

The purchaser was therefore entitled to the $442,000 reduction in the mortgage principal.

The defendant brought a motion seeking leave to compel the plaintiff to post $135,000 as security for costs under Rule 56.01(1)(a) and (d).

The plaintiff, an extra-provincial corporation, sued the defendant for $2.5 million for breach of contract regarding a unilateral reduction in sales commissions.

The court found the defendant met the initial onus under Rule 56.01(1)(d).

However, the court dismissed the motion, finding it would be unjust to order security because the plaintiff's principal undertook to make her personal investment account available to satisfy any costs award.