Patrick Healy

This is a costs endorsement on appeal from a Superior Court judgment.

The appellant was awarded costs of the motions before the motion judge in the amount of $85,000 inclusive of disbursements and HST.

The appellant purchased a cottage property through an online auction conducted by the respondent auction company.

After the high bid was accepted and a purchase and sale contract executed, the sellers refused to close.

The appellant subsequently negotiated a second purchase and sale contract directly with the sellers and the sale closed.

The auction company claimed entitlement to the buyer's premium from the appellant's escrow deposit, arguing the two contracts were effectively one continuous agreement.

The Court of Appeal allowed the appeal, holding that the buyer's premium was not payable when the sale failed to close due to the seller's default, and that the subsequent direct purchase did not trigger the obligation to pay the premium under the auction contract.

The appellant loaned $500,000 to a company with the understanding that it would receive registered shares in a related company as consideration.

Years later, the respondent guaranteed repayment of the loan.

The respondent sought summary judgment to declare the guarantee unenforceable, arguing that a trust agreement had discharged the loan by providing the appellant with a beneficial interest in shares.

The motion judge agreed, but the Court of Appeal reversed, finding that the motion judge's conclusion contradicted his own factual findings and misconstrued the purpose of the trust agreement.

The court held that the trust agreement was intended to provide security, not to discharge the loan, and that the guarantee and general security agreement were enforceable under the Business Corporations Act.

Joyce Bernstein, the successful plaintiff in a class action certification motion against Peoples Trust Company and Peoples Card Services LLP, sought costs of $146,492.72.

Peoples Trust disputed the amount, arguing for divided success due to a reduced class period based on limitation periods, and proposed $120,000 with a portion payable in the cause.

The court awarded the full amount sought by Bernstein but ordered $10,000 of it to be payable in the cause.

The court found no divided success on the certification motion itself but deemed the plaintiff's failure to concede the limitation period issue as conduct that unnecessarily lengthened proceedings, warranting a small portion of costs to be payable in the cause as a salutary message against over-pleading in class actions.

The plaintiff brought a motion to certify a class action against the defendants regarding prepaid payment cards.

The plaintiff alleged that the defendants breached the Consumer Protection Act, 2002 and O. Reg. 17/05 by charging illegal fees and imposing expiry dates on the cards.

The defendants argued that the cards were exempt from the legislation.

The court found that the plaintiff satisfied the five-part test for certification under the Class Proceedings Act, 1992, and certified the action as a class proceeding, subject to an adjustment to the class definition to account for the limitation period.

The appellant appealed as of right from a judgment of the Quebec Court of Appeal allowing an appeal from a verdict of acquittal and ordering a new trial on charges of manslaughter following a mine accident.

The Supreme Court of Canada dismissed the appeal, agreeing with the Court of Appeal that the trial judge erred in his instructions in law to the jury and that a new trial was properly ordered.