Patrick Copeland

The moving parties sought to review an order from a single judge of the Court of Appeal that dismissed their motion for a stay of two interlocutory orders from a Superior Court case management judge.

The interlocutory orders had vacated pre-trial and trial dates and allowed a motion for directions.

The Court of Appeal panel dismissed the review motion, finding no factual or legal errors by the motion judge, who correctly applied the RJR-MacDonald test for a stay.

The panel also noted that the stay motion was moot as the vacated dates were long past and the disputed motions had already been heard and were under reserve.

Following a successful application regarding the interpretation of a commercial contract for the development of a non-profit cemetery, the applicant sought costs of $45,891.90 on a partial indemnity basis.

The respondent argued that no costs should be awarded or, alternatively, that costs should be capped at $20,000.

The court rejected the respondent's arguments against awarding costs, noting the applicant was wholly successful.

Applying the factors under Rule 57.01(1) and the principle of proportionality, the court fixed the applicant's costs at $35,000 inclusive of disbursements and HST.

The applicant, a non-profit corporation, brought an application to interpret an agreement regarding the development and management of a cemetery for the Sunni Muslim community.

The court found that the agreement granted the applicant the right to set its own price list for its designated phase of the cemetery.

Furthermore, the court held that the Care and Maintenance Fund (CMF) contributions under the Funeral, Burial and Cremation Services Act must be calculated based on the applicant's lower price list, and that certificates of interment rights are to be issued as individual plots are transferred, rather than all at once.

The Court allowed the appeal and held that an Internet service provider may recover reasonable costs required to comply with a Norwich order, but not costs tied to obligations already imposed by the statutory notice and notice regime under ss. 41.25 and 41.26 of the Copyright Act.

Because the record did not permit a proper allocation between recoverable and non-recoverable work, the matter was remitted to the motion judge to determine the reasonable quantum, with Rogers permitted to adduce fresh evidence.

The Applicant sought costs following a motion for contempt, which was dismissed because the Respondent's non-compliance with a prior order was partly due to the Applicant's inaccurate documentation.

The Applicant requested costs on a substantial or partial indemnity scale, while the Respondent sought costs against the Applicant for alleged misconduct.

The court, applying Rule 57.01(1) and (2) of the Rules of Civil Procedure, found no conduct by the Applicant warranting costs against it, but also determined that the Applicant was not entitled to costs due to its own contribution to the dispute.

Consequently, the court exercised its discretion to make no costs award on the application.

Aragon brought an application for a declaration that Piller and its tenants were obstructing Aragon's right of way over an L-shaped parcel of land.

Piller brought a cross-application claiming it had acquired possessory title to the L-shaped land and a portion of Aragon's land through adverse possession by its tenants, and that Aragon had abandoned its right of way.

The court found that Piller's tenants, as trespassers, did not meet the high threshold for adverse possession, particularly the inconsistent use requirement, as their use was not inconsistent with the servient owner's intended use.

Furthermore, the court found no evidence that Aragon or its predecessors intended to abandon the expressly granted right of way.

Aragon's application was granted, and Piller's cross-application was dismissed.

Piller was ordered to remove the obstructions.

Following a motion where the defendants successfully vacated a certificate of pending litigation, the defendants sought costs of $73,579.49 payable forthwith.

The plaintiff argued that costs should be in the cause and in a lower amount due to the public interest nature of the proposed class action.

The court held that while the defendants were successful, the plaintiff's initial pursuit of the remedies was not unreasonable, and the defendants had delayed in bringing their motion.

The court exercised its discretion to order costs in the cause.

In a proposed class action regarding promissory note investments, the plaintiff obtained a Norwich Order, Mareva Injunction, and a certificate of pending litigation without notice.

The moving defendants brought a motion to discharge the certificate of pending litigation and for damages.

The court found that while the initial ex parte orders were justified, the certificate of pending litigation should be discharged because the plaintiff's claim was essentially monetary and there was no close connection between the property and the alleged improper benefits.

The issue of damages for the registration of the certificate was deferred to trial.

The moving party municipality brought a motion for an interlocutory injunction to restrain the responding party from dumping large volumes of fill on its property in contravention of a fill control by-law and a stop work order.

The responding party argued its activities fell under a 'landscaping' exception and that the by-law fees were ultra vires.

The court granted the injunction, finding a serious issue to be tried that the massive volume of fill did not constitute landscaping, presuming irreparable harm to the public interest, and concluding the balance of convenience favoured enforcing the democratically enacted by-law.

The appellant appealed an order of the Superior Court of Justice refusing to adjourn an application.

The appellant argued it was denied procedural fairness as it was unrepresented, had taken steps to prepare a response, and there had been no prior adjournments.

The Court of Appeal upheld the application judge's discretionary decision to refuse the adjournment, finding that the request appeared to be an attempt to delay proceedings.

The court noted the appellant's pattern of resisting performance of contractual obligations through litigation and its relative inaction in the seven weeks between service and the return date.

The appeal was dismissed with costs awarded to the respondent.

The applicant sought an interlocutory mandatory injunction to lift a Site Alteration Order issued by the respondent, which prohibited the importation of 500,000 m³ of fill for a proposed berm on its property.

The applicant argued the berm constituted landscaping and fell under an exception to the respondent's Fill Control By-law.

The court dismissed the motion, finding the applicant failed to meet the higher standard for a mandatory injunction, did not demonstrate irreparable harm (as it was the author of its own misfortune by proceeding without legal certainty), and the balance of convenience favoured the respondent due to potential environmental damage and remediation costs.

The applicant's undertaking as to damages was also deemed inadequate.

The plaintiff's motion for an interlocutory injunction to restrain the defendants from soliciting clients and employees was previously dismissed.

The defendants sought costs of $15,082.12 on a partial indemnity basis.

The plaintiff argued costs should be in the cause or fixed at a lower amount, and that the defendants unnecessarily complicated the motion.

The court rejected the plaintiff's arguments, noting the presumption that costs of a motion are payable forthwith, especially for interlocutory injunctions.

The court found the defendants' requested costs reasonable, particularly given the plaintiff's own costs outline was significantly higher.

The plaintiff was ordered to pay costs of $15,082.12 forthwith.

The applicant sought rectification and enforcement of an agreement for the purchase of internment rights in a cemetery development.

The respondent argued that the signed document was merely a memorandum of understanding and that a formal agreement subject to legal review had not yet been concluded, requiring the matter to proceed to trial.

The court examined the parties’ post‑execution conduct, including payment and acceptance of a deposit, commencement of due diligence, engagement of consultants, marketing of burial plots, and planning applications.

These actions demonstrated that both parties treated the May 13, 2014 document as the binding formal agreement.

The court held that references within the document to a future “formal agreement” were the result of mutual mistake and ordered rectification.

The plaintiff property management company brought a motion for an interlocutory injunction to restrain former employees and their new company from soliciting its clients and employees.

The plaintiff alleged the former employees breached non-solicitation clauses in their employment contracts.

The court dismissed the motion, finding that while there was a serious question about whether the defendants were bound by the clauses, there was no evidence of actual solicitation.

Furthermore, the court found the plaintiff failed to establish irreparable harm, as any potential losses could be quantified and recovered through damages.