Natalie Schernitzki

The applicants, beneficiaries of "lost shareholders" of York Downs Golf and Country Club, sought orders to be registered as shareholders and receive distributions after their shares were cancelled under a court-approved plan of arrangement.

They argued the arrangement was unfair/unreasonable under s. 182 OBCA or oppressive under s. 248 OBCA, as they had insufficient time to validate their claims after being located late in the process.

The court dismissed the applications, holding that the prior court approval of the arrangement as fair and reasonable was res judicata and that the arrangement appropriately balanced stakeholder interests.

The court also found no oppression, as the applicants had no reasonable expectation beyond complying with the arrangement's terms, and York Downs had made commercially reasonable efforts to locate shareholders and facilitate claims.

This costs endorsement followed previous judgments in consolidated applications concerning a shareholder dispute.

The court had dismissed the Cornacchia Group’s application and allowed, in part, Michael Cotic’s application, making Cotic the overall successful party.

Cotic sought substantial indemnity costs, or alternatively, partial indemnity costs under Rule 49.

The Cornacchia Group argued for apportioned costs or no reimbursement for disbursements.

The court declined to award substantial indemnity, finding that allegations of fraud arose from Cotic's sloppy record-keeping rather than deliberate misconduct, and that Cotic's Rule 49 offer was not more favourable than the judgment obtained.

The court also found the Cornacchia Group's actions did not unnecessarily prolong proceedings.

Cotic was awarded partial indemnity costs, assessed at $380,000, payable forthwith, jointly and severally by the Cornacchia Group, with a right of set-off against the purchase price of their interests in the Corporation.

Following a judgment determining the status of shareholder loans, the parties sought guidance on four specific accounting items.

The court held that franchise fees paid by the applicants were a corporate expense and should be credited to their shareholder loans.

However, claims for reimbursement of merchandise expenses, unpaid monthly amounts to one shareholder, and a balance on a loan from a shareholder's mother were dismissed due to lack of authority, insufficient evidence, and failure to plead the claims.

The defendant moved for summary judgment to dismiss the plaintiff's claims for breach of contract, misrepresentation, and breach of the duty of good faith.

The dispute centered on whether the parties had reached oral agreements beyond an initial commission fee arrangement for a long-term business relationship involving artificial intelligence technology.

The court dismissed the motion, finding that genuine issues requiring a trial existed due to significant credibility disputes between the key witnesses.

The court declined to use its enhanced fact-finding powers under Rule 20.04(2.1) because doing so risked inconsistent findings of fact at the subsequent trial.

This case involved consolidated applications concerning a closely held corporation, Fitness Fanatix Inc. The Cornacchia Group sought an oppression remedy under s. 248 of the Business Corporations Act, alleging Cotic mismanaged the business, failed to maintain proper records, and misappropriated cash.

Cotic, in turn, sought to enforce a buy-sell offer under s. 253(1) of the Act and the shareholders' agreement.

The court dismissed the Cornacchia Group's oppression application, finding their expectations were not violated and no misappropriation of cash by Cotic.

The court determined the correct shareholdings and Cotic's shareholder loan balance, rejecting claims that Wilkins and Correia were shareholders.

Cotic's application was allowed in part, granting him the first right to institute a new buy-sell offer based on the court's findings, as the original offer was not enforceable due to adjusted loan amounts and changed circumstances.

The applicant, a former officer and shareholder of the respondent corporation, brought an oppression application after his termination.

In the context of that proceeding, he moved to remove the law firm representing the respondents as counsel of record, alleging a disqualifying conflict of interest based on prior joint representation and the likelihood that the firm's lawyers would be called as witnesses.

The court dismissed the motion, finding that the firm's retainer clearly stated it represented only the corporation, not its officers or shareholders.

Furthermore, the court held that it was premature and speculative to remove counsel on the basis that its lawyers might be called as witnesses, as the applicant had not yet determined whether he would call them or convert his application into an action.

The plaintiff's motion to add Ken Rubin as a defendant in a defamation action based on his freedom of information requests was previously dismissed.

In this costs decision, the Master applied the anti-SLAPP provisions of the Courts of Justice Act by analogy.

Finding no reason to deviate from the statutory presumption of full indemnity costs under s. 137.1(7), the Master awarded the successful proposed defendant his requested costs of $15,000.

The plaintiff, Core Insight Strategies Inc., brought a motion to amend its statement of claim to add several parties, including Dan Baril as a plaintiff and Erin Kelly, Kenton White, and Ken Rubin as defendants.

Ken Rubin opposed his addition, arguing that the proposed claims of defamation and intentional interference with economic relations, based on his freedom of information requests, were unmeritorious and constituted a "gag proceeding" under Section 137.1 of the Courts of Justice Act.

The Master granted the motion to add the other parties but dismissed the motion to add Ken Rubin, finding that his FOI requests could not be construed as specific allegations of wrongdoing and that allowing such claims would unduly prejudice the exercise of freedom of information rights and expression.

The parties brought cross-applications regarding ongoing disputes over cigar smoke migrating between condominium units and unauthorized unit modifications.

The condominium corporation sought orders to remove humidifiers installed by the unit owners and to access the unit for repairs.

The unit owners sought declarations that the corporation breached its duties to repair and maintain the common elements, and orders dictating the contents of future status certificates.

The court found the humidifier issue moot as the owners agreed to remove them.

The court dismissed the owners' claims, finding the corporation acted reasonably in relying on its engineer's recommendations for repairs, and held it lacked jurisdiction to dictate the contents of a status certificate in advance.

The defendants moved for summary judgment to dismiss the plaintiff's action alleging undue influence and coercion in the transfer of an investment portfolio and real property.

The defendants also sought summary judgment on their counterclaim for defamation.

The court found that there were serious issues of credibility and conflicting evidence that could not be resolved on the documentary record.

The court declined to use its fact-finding powers under Rule 20.04, concluding that a full trial was necessary to assess witness demeanour and the human dynamics involved.

The motion for summary judgment was dismissed with costs awarded to the responding parties.

Motions were brought to quash summonses issued by a litigant seeking to compel opposing counsel and a proposed estate trustee during litigation to testify in support of a motion alleging judicial duress in prior settlement proceedings.

The court considered the stringent requirements for summoning opposing counsel as witnesses, emphasizing that such a step requires a high degree of materiality and necessity and should be avoided unless demanded by the administration of justice.

The court found the evidence sought was neither material nor necessary, noting that the moving party had already filed affidavits, transcripts, and audio recordings addressing the relevant events.

The proposed examinations were characterized as a fishing expedition and potentially tactical, as they would force opposing counsel to withdraw and cause delay and expense.

The summonses were quashed and substantial indemnity costs were awarded.

The moving party sought an adjournment of his motion to set aside consent orders previously made in complex estate litigation.

The respondents opposed the adjournment, arguing prejudice and delay in the sale of an estate property.

The court refused to adjourn the portions of the motion relating to the dismissal of claims against former counsel and the removal of the Estate Trustee During Litigation, finding no merit to those claims and emphasizing the need to enforce court orders.

The court granted an adjournment for the remaining issues regarding the consent orders but ordered the moving party to personally pay the ongoing expenses of the estate property and awarded costs of $54,490 to the respondents on a partial indemnity basis.

Following reasons for decision after a trial of specific issues concerning alleged smoke migration into a condominium unit and alleged breaches of repair and maintenance obligations under the Condominium Act, the court addressed the appropriate costs award.

Although the substantive issues had been decided in favour of the respondents, the court had provisionally awarded costs to the applicants and invited submissions regarding scale and quantum.

The applicants sought substantial indemnity costs exceeding $64,000, while the respondents argued either for no costs or for limited partial indemnity costs.

The court held that substantial indemnity costs are reserved for rare and exceptional circumstances involving reprehensible conduct and that such circumstances were not present.

Applying proportionality and Rule 57.01 factors, the court fixed partial indemnity costs at $32,500 inclusive of disbursements and HST.