Osborne Godfrey Barnwell

This motion concerned whether a consumer debtor required leave under section 215 of the Bankruptcy and Insolvency Act (BIA) to sue her consumer proposal administrator for negligence and breach of duty, and if so, whether leave should be granted.

The debtor's consumer proposal was annulled after missed payments, and she sued the administrator in Small Claims Court.

The administrator sought a stay of the action, arguing leave was required.

The court found that leave was indeed required as the allegations related to actions taken pursuant to the BIA, and dismissed the debtor's request for leave, finding her claim lacked factual support for causation of damages.

This appeal concerned the enforcement of Minutes of Settlement that resolved prior litigation between two factions of a church, Bethel Restoration Ministries.

The motion judge had ordered enforcement, requiring Bethel to make overdue payments and allowing a property registration.

The appellants challenged this order on three grounds: lack of jurisdiction due to the internal church dispute, the Minutes being void as prohibited by Bethel's constating documents, and the respondents having unclean hands.

The Court of Appeal dismissed the appeal, affirming that the Minutes created legally cognizable civil rights (contractual and property rights), thereby grounding the court's jurisdiction.

It also found that the Minutes were not prohibited by the church's by-laws, as they represented a valid exercise of the Elders' power to compromise claims.

The unclean hands argument was rejected as it pertained to conduct resolved by the Minutes.

Angella Briscoe, whose consumer proposal was annulled, commenced a Small Claims Court action against her insolvency trustee (Spergel Inc. and Colin Boulton) for negligence and breach of duty under the BIA.

The defendants moved to stay the Small Claims Action pending leave under BIA s. 215.

Briscoe brought a counter-motion seeking leave nunc pro tunc and an order to remove the defendants' counsel, Bruce Simpson, alleging conflict of interest due to his potential role as a witness in the Small Claims Action.

The court dismissed Briscoe's motion to remove counsel, finding that the "lawyer as witness" conflict was not applicable to the current motions in the consumer proposal proceeding, as Mr. Simpson was not a witness for those motions, and the Small Claims Action's continuation was still a threshold issue.

The Greaves Group, having successfully enforced Minutes of Settlement, sought costs on a substantial indemnity scale.

The court reviewed the context, distinguishing the case from precedents where substantial indemnity was awarded due to reprehensible conduct.

Finding no improper conduct by the Noble Group, the court awarded costs on a partial indemnity scale, fixing the amount at $15,800, inclusive of fees, disbursements, and HST.

The appellant, a former employee, appealed the striking out of her statement of claim without leave to amend.

Her claim sought further compensation for alleged racial discrimination, arguing that correspondence with the CEO constituted a binding agreement, despite having signed a full and final release upon dismissal.

The Court of Appeal upheld the motion judge's decision, finding no error in the conclusion that the letters did not form an enforceable contract and that the elements of promissory estoppel were not pleaded.

The court reiterated that claims with no reasonable chance of success should be struck.

The appellant challenged a lower court order that struck two versions of his statement of claim (except for a battery claim) and denied him leave to amend it a third time to add a new party (the Union) and a civil conspiracy claim.

The motion judge had found the claims against the Union and the civil conspiracy claim to be statute-barred, and declaratory relief also barred as it was connected to damages.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the civil conspiracy elements were not pleaded in earlier claims and that the new claims were out of time, even when reading the self-represented appellant's pleadings generously.

The appellants appealed the dismissal of their action on a motion for summary judgment, which was found to be statute-barred under the Limitations Act, 2002.

The motion judge concluded the claim was discovered by August 21, 2015, more than two years before the action was commenced.

The Court of Appeal upheld the motion judge's decision, finding no error in the interpretation or application of the discoverability principle under s. 5 of the Limitations Act, 2002, specifically regarding when a proceeding is an "appropriate means to seek to remedy" a loss.

The court rejected the argument that the appropriateness of litigation includes an assessment of its prospect of success or the ability to marshal evidence.

The respondents (moving parties) sought reconsideration of a prior Court of Appeal decision that had quashed their appeal as interlocutory and dismissed their motion to stay.

The court dismissed the motion for reconsideration, finding that Rule 59.06 of the Rules of Civil Procedure was inapplicable as no order had been issued and entered.

The court emphasized the principle of finality in litigation, stating that reconsideration is only granted sparingly and where the interests of justice require it.

The court noted that the moving parties had already pursued leave to appeal to the Divisional Court and were seeking further leave to appeal that decision, indicating acceptance of the original ruling.

A new argument regarding judicial bias based on counsel's race was deemed irrelevant to the determination of whether the original order was interlocutory or final.

The motion was brought by Robert M. Micheli and his law firm (Fourth Parties) to strike out the fourth party claim by Stella and Stainton Pinnock (Defendants) for disclosing no reasonable cause of action and being an abuse of process.

The Pinnocks' fourth party claim sought indemnity and damages related to a mortgage dispute and a failed property sale, alleging bad faith, misrepresentation, and negligence against Micheli, who acted for the mortgage lender.

The court found that many of the Pinnocks' claims were foreclosed by prior findings from the Court of Appeal and Supreme Court of Canada, which established that the Pinnocks had no equity in the property and their inability to close the sale was not caused by Micheli's conduct.

The court struck out the fourth party claim but granted leave to amend, providing guidance on permissible claims.

This is a costs endorsement following a judgment concerning the division of a business enterprise operating two medical schools.

The Applicants sought partial indemnity costs for legal proceedings in Ontario and St. Vincent and the Grenadines.

The Respondents sought full indemnity costs against the Applicants and requested the judge's recusal due to alleged bias.

The court dismissed the recusal request, found no basis for costs against Applicants' counsel, and declined to award costs for St. Vincent and the Grenadines counsel due to lack of evidence.

The Applicants were largely successful in the main application, securing a monitor, injunctive relief, and an interim disbursement.

The court awarded the Applicants $85,000 in partial indemnity costs, inclusive of fees, disbursements, and taxes, payable within 30 days.

The plaintiff sued her plastic surgeon for negligence, alleging lack of informed consent for a breast reduction surgery.

She claimed the surgeon failed to disclose the material risk of fat necrosis, which was elevated due to her obesity and smoking, and which she subsequently suffered.

The court found that while the surgeon did not specifically disclose the risk of fat necrosis, and should have, the plaintiff failed to establish causation.

Applying a modified objective test, the court concluded that both the plaintiff and a reasonable person in her circumstances would have proceeded with the elective surgery due to significant and persistent back pain, despite the very low, albeit material, risk.

Therefore, the surgeon was not held liable for damages.

Following the dismissal of the plaintiff's motion for summary judgment, the court addressed the issue of costs.

The plaintiff's counsel was censured for re-arguing the merits in costs submissions.

The court awarded partial indemnity costs of $30,000 to the defendants, a reduction from their requested $34,417.02, primarily due to the plaintiff's impecuniosity.

The decision balanced the defendants' right to costs with the plaintiff's access to justice.

The plaintiff, Dale James, brought a motion for summary judgment against the Peel Regional Police Services Board and four police officers, alleging unlawful arrest, detention, harassment, and Charter breaches.

The claims stemmed from an arrest for breach of recognizance based on outdated CPIC information and a subsequent investigative detention.

The defendants denied liability, asserting the arrest was lawful and the detention justified.

The court, applying the principles from Hryniak v. Mauldin, found that there were genuine issues requiring a trial, particularly concerning the officers' knowledge regarding the recognizance, the reasonableness of the investigative detention, and allegations of racial profiling.

Consequently, the plaintiff's motion for summary judgment was dismissed, and the matter was directed to proceed to trial.

The appellant appealed a summary judgment decision in which the motion judge found that the respondent vendors breached an Agreement of Purchase and Sale by failing to deliver unencumbered title.

However, the motion judge limited damages to the deposit amount of $25,000 and refused to award damages for loss of bargain, finding that the benefit was illusory.

The Court of Appeal allowed the appeal, holding that there was a real bargain and that the appellant was entitled to damages for the difference between the agreed purchase price and the higher price eventually paid for the property, totalling $187,500.

The respondents' cross-appeal was dismissed.

The Court also addressed the costs of both the motion and the appeal.

This endorsement addresses the costs of a summary judgment motion where the plaintiff, Birchcliffe Core-Harbour Inc., was partially successful in recovering its $25,000 deposit but failed in its claim for $187,500 in loss of bargain damages.

The defendants' counterclaim was dismissed.

The defendants, Stella and Stainton Pinnock, sought substantial indemnity costs of over $95,000 or partial indemnity of over $82,000, arguing the complexity of novel legal arguments.

The plaintiff argued for no costs or a maximum of $2,475.

The court, applying Rule 57.01 factors and the principle of proportionality, found the defendants' claimed hours disproportionate to their partial success and awarded them $20,000 in fees plus $3,250 in disbursements, plus HST, to be paid by the plaintiff.

The plaintiff, Birchcliffe Core-Harbour Inc., sought summary judgment against the defendants, Stella Pinnock and Stainton Pinnock, for breach of an agreement of purchase and sale, claiming damages for loss of bargain and return of a deposit.

The defendants failed to deliver clear title due to an outstanding mortgage with substantial arrears.

The plaintiff subsequently purchased the property from the mortgagee via a power of sale.

The court found the defendants breached the agreement, entitling the plaintiff to the return of the deposit.

However, the claim for loss of bargain was dismissed, as the defendants had no equity in the property, and the "bargain" was deemed illusory.

The defendants' counterclaim for bad faith was also dismissed.

This endorsement addresses the question of costs following a trial where the plaintiff, Iris R. Powell, recovered $26,700 plus interest against one defendant, Mohamed Afzal Sahadat, but her action was dismissed against other defendants and her co-plaintiff's action was dismissed entirely.

The defendants' counterclaim was also dismissed.

The court applied the principles of costs, including indemnity, encouraging settlements, and discouraging inappropriate behaviour, as well as the factors under Rule 57.01.

The court rejected the defendants' argument that the action should have been brought in Small Claims Court, as Ms. Powell's recovery exceeded the monetary limit.

Ms. Powell's costs against Mr. Sahadat were discounted due to her partial success (unsuccessful on a major claim for business losses) and the complexity she contributed.

Similarly, the costs awarded to the successful defendants (Ishan Dhanapala, Dhana Corporation, and First Financial Consulting Services (FFCS) Ltd.) against Ms. Powell were discounted due to their contribution to the trial's complexity and their unsupportable counterclaim.

The court declined to award personal costs against Ms. Powell's counsel, citing the principle of extreme caution.

Ultimately, Mr. Sahadat was ordered to pay Ms. Powell $19,000 in costs, and Ms. Powell was ordered to pay Ishan Dhanapala, Dhana Corporation, and First Financial Consulting Services (FFCS) Ltd. $23,450 in costs.

The plaintiff sought to vary or set aside previous interlocutory orders made by Masters Short and Jolley, including orders setting aside a noting in default, refusing representation by a non-lawyer agent, and directing the Registrar not to note the defendant in default.

The plaintiff's motion was brought under Rule 37.14 of the Rules of Civil Procedure, which the court found to be an improper use as the preconditions were not met and the time for appeal had expired.

The court also reviewed the merits of the plaintiff's grounds for challenging the orders and found no reviewable error by the Masters.

The motion was dismissed, and the plaintiff was ordered to pay costs.

The moving party, 2181550 Ontario Inc., sought all costs incurred in enforcing previous orders against Palwinder Singh Nijjar, who had failed to indemnify 2181550 Ontario Inc. for a judgment and costs.

Enforcement efforts spanned Canada and the U.S., incurring significant legal fees.

The court considered proportionality and jurisdiction, declining to order costs for the U.S. proceeding, deeming it a matter for the foreign court.

The court awarded a maximum of $35,000 CDN for costs incurred in Canada, emphasizing that costs must be proportionate to the original judgment and reasonable.

The plaintiffs, Iris Powell and The Classic Plus Woman Inc., brought an action against multiple defendants concerning an advance of money.

The court found that Powell advanced $20,000 as a loan to Mohamed Afzal Sahadat, which was then directed to corporations controlled by Ishan Dhanapala for a membership in an investment club related to a condominium project.

Sahadat was obligated to repay $20,000 plus a 39.5% premium ($7,900), totaling $27,900, payable on demand, less $1,100 already repaid.

The court dismissed claims against other defendants (Sean Silva, Ishan Dhanapala, Dhana Corporation, FFCS Ltd.) and found that The Classic Plus Woman Inc. lacked standing.

Powell's claim for consequential business losses was denied, adhering to the principle that damages for failure to pay a debt are generally limited to interest unless special circumstances exist.