N. Roth

This endorsement addresses the costs of a prior motion concerning a mortgage loan and possession of mortgaged lands.

The plaintiff, 2410488 Ontario Inc., sought costs after minutes of settlement were reached.

The defendant, Alex Aidan Fitzgerald Furney, argued the costs motion was premature due to an ongoing accounting, but the court found it timely.

The plaintiff requested costs on a substantial indemnity basis, but the court, applying the factors under the Rules of Civil Procedure, awarded costs on a partial indemnity basis, totaling $11,782.77, to be added to the mortgage account with interest.

The court heard a motion to settle the order resulting from a previous finding of contempt and sentence against the plaintiff.

The court resolved disputes over the preamble, prayer for relief, and specific paragraphs of the draft order.

The court also clarified the calculation of funds to be disbursed from the defendants' counsel's trust account to the plaintiff, determining the final amount to be $35,986.77, and set the date from which interest should be calculated.

Both parties were ordered to bear their own costs for the motion.

Following a prior finding of civil contempt for commencing foreign litigation contrary to a final order, the court addressed the outstanding sentencing issues of costs, fine, and payment mechanics.

Applying civil contempt sentencing principles and the presumptive substantial indemnity approach to contempt costs, the court held that the contemnor's second act of contempt, the delays caused, and the seriousness of undermining court orders justified substantial indemnity costs, subject to a reduction for duplication of effort.

The court also imposed a fine to reflect specific and general deterrence, emphasizing the need to protect the authority of court orders.

Directions were given for release of trust funds and payment of statutory interest.

On a contempt motion arising from long-running estate litigation, the court held that the respondent was in contempt of a final settlement order by commencing New York litigation seeking relief duplicative of, and inconsistent with, matters reserved to the Ontario case-management judge.

Applying the civil contempt test, the court found the prior order, read in its full context and spirit, clearly required further formal orders flowing from the minutes of settlement to be remitted to the same judge.

The respondent deliberately commenced the foreign proceeding, and reliance on incorrect legal advice was no defence to liability, though potentially relevant to penalty.

Other alleged acts of obstruction and non-compliance were left unresolved because credibility findings would require viva voce evidence.

The appellants sought to enforce a Florida default judgment for damages arising from a real estate transaction against the respondents in Ontario.

The trial judge dismissed the action, finding the Florida judgment was obtained by fraud and its enforcement would contravene public policy.

The Court of Appeal allowed the appeal against most respondents, holding that the fraud defence requires newly discovered facts that could not have been discovered with reasonable diligence, which the respondents failed to demonstrate.

The public policy defence was also rejected.

However, the appeal was dismissed against one respondent whose absolute discharge from bankruptcy released her from the judgment debt.