Patrick T. Summers

The court addresses costs and pre-judgment interest following the successful actions of Gary and Jennifer McKenzie against Fabco Holdings Inc., Jaymor Specialty Housing General Partner Inc., Your Community Realty Inc., and Gerald Anthony (also known as Gerald Van Erp).

The McKenzies were awarded substantial indemnity costs and pre-judgment interest in both the "Fabco claim" and the "Title claim" with the court apportioning costs between the defendants based on their conduct and the complexity of the litigation.

The decision discusses the principles guiding costs awards, including proportionality, indemnity, and the impact of vexatious conduct.

The moving party brought a motion for leave to appeal the decision of Mandhane J. dated October 10, 2024.

The Divisional Court dismissed the motion for leave to appeal without costs.

The decision concerns an appeal by the Defendants from an order granting the Plaintiffs certificates of pending litigation (CPLs) over two properties.

The court reviews the factual background, the standard of review, and the legal test for CPLs, ultimately finding no error in the Associate Justice’s decision to grant the CPLs.

The appeal is dismissed.

The plaintiffs, Gary and Jennifer McKenzie, brought two claims: one for breach of contract against Fabco Holdings Inc. and Jaymor Specialty Housing General Partner Inc. (Fabco/Jaymor) arising from an aborted real estate purchase agreement, and another for slander of title/injurious falsehood against Gerald Anthony, a neighbour, regarding a disputed property boundary.

The court found that Fabco/Jaymor breached the purchase agreement, not due to a legitimate title issue, but because the property was unsuitable for their development plans.

Fabco had assigned its obligations to Jaymor, and the court held Jaymor solely responsible for the breach, releasing Fabco from liability per the contract's assignment clause.

The court awarded the plaintiffs substantial damages against Jaymor for loss of bargain and associated costs.

Regarding the title claim, the court found Anthony liable for slander of title/injurious falsehood for registering a caution and application on title without bona fide grounds, which delayed the subsequent sale of the property.

However, Anthony was not held liable for damages related to the initial aborted sale, as that was attributed to Fabco/Jaymor's independent reasons.

The court awarded damages against Anthony for losses incurred due to the delay in the second property sale.

The defendants' counterclaim was dismissed, and the plaintiffs were found to have reasonably mitigated their damages.

The applicant, a real estate agent, sought judicial review of a decision by the Real Estate Council of Ontario's Appeal Panel upholding a finding that she breached the Code of Ethics.

The applicant had included inaccurate property tax and local improvement charge information in a real estate listing without a sufficient public disclaimer.

The Divisional Court dismissed the application, finding that the Discipline Panel reasonably excluded the applicant's proposed expert evidence because it went to the ultimate issue and was unnecessary.

The Court also held that the Discipline Panel's finding of professional misconduct was reasonable, as the applicant failed to clearly communicate that the tax figures were unverified estimates.

The applicant sought costs of $302,215.33 following successful interim and final preservation motions in a complex family law dispute involving a multi-million-dollar real estate empire.

The court found the respondents' conduct, particularly their failure to comply with disclosure orders and late delivery of materials, to be unreasonable and warranting sanction.

The court rejected the respondents' arguments of divided success and their reliance on offers to settle.

The court declined to pierce the corporate veil to make the individual respondent personally liable for the corporate respondents' costs.

The applicant was awarded total costs of $200,000 on a substantial recovery basis.

The applicant husband brought a motion for an interim preservation order under Rule 45.01 of the Rules of Civil Procedure and section 12 of the Family Law Act to preserve the assets of several respondent corporations pending trial.

The applicant claimed legal and beneficial ownership of the corporations, which held a substantial real estate portfolio and private mortgage fund, while the respondent wife claimed her mother owned them.

The court found the applicant established a strong prima facie case of ownership and that the balance of convenience favoured preserving the unique corporate assets.

The court granted the preservation order for the corporate assets but declined to order preservation for specific residential properties under the Family Law Act.

This appeal concerned the suitability of specific performance as a remedy in a failed real estate transaction.

The appellants (defendants) challenged the trial judge's order for specific performance, arguing that the property was not unique and that the corporate purchaser's intent was for investment, not personal use.

The Court of Appeal found that the trial judge erred by relying on inadmissible hearsay evidence regarding the corporate principal's (Mr. Lin's) intentions, as he did not testify and was not proven unavailable.

The court concluded that the corporate structure and expert evidence supported an investment purpose, making damages an adequate remedy.

The appeal was allowed, the specific performance order was set aside, and the issue of damages was remitted for a new trial.

The respondent's cross-appeal on costs was dismissed.

This motion concerned the interpretation of the term “usual and ordinary course of business” as it applied to corporate respondents in an interim preservation order.

The corporate respondents sought an expansive interpretation to allow significant financial transactions, including leveraging properties and transferring funds for a private mortgage lending business.

The applicant sought a narrow interpretation to preserve assets.

The court applied principles of judicial order interpretation, emphasizing context and purpose, and found the respondents' proposed interpretation would negate the preservation order's effect.

The court adopted a narrow definition, limiting “usual and ordinary course of business” to day-to-day operations and management, explicitly excluding large-scale asset encumbrance or intercorporate fund transfers for investment.

All other relief sought by the respondents was dismissed.

The third party, Onward, moved to permanently stay the main action based on a release containing a no-claims-over clause that the plaintiff had signed in its favour.

The defendant, Enercare, had commenced a third-party claim against Onward for contribution and indemnity.

The court dismissed the motion, finding that the plaintiff had expressly waived its right to recover any damages attributable to Onward's fault in its amended statement of claim.

Applying the principle from Taylor v. Canada, the court held that this waiver eliminated any viable claim-over by Enercare against Onward, meaning the main action was not a prohibited proceeding under the release.

Following a trial where the plaintiff was awarded specific performance of an agreement of purchase and sale, the plaintiff sought costs on a substantial indemnity basis relying on a Rule 49 offer to settle.

The court found that the offer lacked a genuine element of compromise, as it essentially demanded the defendants either purchase the property or pay equivalent damages.

The court awarded costs to the plaintiff on a partial indemnity scale, fixed at $150,000 inclusive of disbursements and taxes, after deducting costs for an earlier consent motion and an unsuccessful summary judgment motion.

The plaintiff corporation entered into an Agreement of Purchase and Sale to buy a residential property from the defendants.

The defendants subsequently refused to close the transaction, breaching the agreement.

The plaintiff sued for specific performance, arguing the property was uniquely suited as a recreational compound for its principals' extended family.

The defendants argued the purchase was a commercial investment and damages were the appropriate remedy.

The court found the property had a peculiar and special value to the plaintiff and ordered specific performance.

The plaintiff brought a motion for summary judgment for damages arising from the defendant's failure to close a real estate transaction.

The defendant argued the agreement was void due to misrepresentations about conservation authority restrictions and that she was not personally liable because she signed 'in trust' for a corporation.

The court found that the issue of misrepresentation required a trial due to the risk of inconsistent findings with related third-party claims.

However, the court granted partial summary judgment on two discrete issues, finding that the defendant would be personally liable if the agreement is enforceable, and quantifying the plaintiff's damages at $381,984.02.

The applicants sought to rescind an Agreement of Purchase and Sale and recover their deposit due to undisclosed easements for storm and sanitary sewers.

The court found that the easements did not materially affect the use or enjoyment of the property, as per clause 10(d) of the agreement, and dismissed the application.

This is a costs endorsement following a ten-day trial where judgment was granted in favour of the defendants, dismissing the plaintiff's action and allowing the defendant Martha Stirpe's counterclaim.

The court fixed costs on a partial indemnity scale, rejecting the defendants' claim for substantial indemnity costs under Rule 49.10(2) and confirming that "costs in the cause" for a prior summary judgment motion and appeal meant costs were awarded to the successful party in the main action.

The court also found the hourly rates for lead counsel and the inclusion of a law clerk's attendance at trial to be reasonable.

The appellants sought to overturn a trial judgment dated February 28, 2018 by advancing arguments that had been rejected by the trial judge and by challenging his credibility findings.

The Court of Appeal found no basis to interfere with the trial judge's findings and dismissed the appeal.

Costs were awarded to the respondent on a partial indemnity scale in the amount of $15,000, inclusive of disbursements and HST.

The plaintiff, Michel Drakoulakos, sued his daughter, Martha Stirpe, her husband, Mark Stirpe, and their company, 1166504 Ontario Limited, claiming beneficial ownership of a company share and its assets (taxis and investments) registered in his daughter's name, asserting a resulting trust.

He also sought alternative relief based on unjust enrichment and constructive trust.

The defendants counterclaimed for $49,000 withdrawn by the plaintiff from the daughter's credit cards.

The court dismissed the plaintiff's action, finding that the transfer of the company share and its initial asset (a taxi) was a gratuitous gift from the parents to the daughter, rebutting the presumption of resulting trust.

The court accepted the defendants' evidence that promissory notes signed by the daughter were for protection in case of divorce, not to create a debt.

The plaintiff's alternative claims were dismissed as unpleaded and unsupported by evidence.

The court allowed the daughter's counterclaim for $49,000, which the plaintiff conceded.

Appeal from a summary judgment decision enforcing settlement agreements between Mars Canada Inc. and the appellants regarding the sale of grey market Mars products in Canada.

The appellants challenged the enforceability of the settlement agreements as being in restraint of trade, the motion judge's jurisdiction to order a reference on damages, and the award of substantial indemnity costs.

The Court of Appeal upheld the motion judge's decision, finding the settlement agreements reasonable under the Tank Lining test, confirming the court's jurisdiction to order a reference under Rule 20.04(3) on summary judgment, and affirming the substantial indemnity costs award based on the appellants' reprehensible conduct.

Following a successful summary judgment motion in a wrongful dismissal action, the plaintiff sought costs.

The plaintiff had served an offer to settle for 11 weeks' salary, which the defendant did not accept.

Because the plaintiff ultimately recovered 4 months' salary, Rule 49.10(1)(a) applied.

The court awarded the plaintiff partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter, fixing the total all-inclusive costs at $13,900.

The plaintiff employee was terminated without cause after 8.5 months of employment.

The defendant employer argued that a termination clause in the employment agreement limited the plaintiff's entitlements to the statutory minimums under the Employment Standards Act.

On cross-motions for summary judgment, the court found the termination clause ambiguous as it merely stated the employer would comply with the legislation without explicitly displacing common law rights.

Applying the principle of contra proferentem, the court interpreted the clause against the employer and awarded the plaintiff 4 months' pay in lieu of reasonable notice, plus one month of pension contributions.