Paul M. Perell

This endorsement settles the form of an order following a Request for Direction (RFD) brought by the Chief Adjudicator of the Independent Assessment Process (IAP) concerning the disposition of "Non-Claim Records" from the Indian Residential Schools Settlement Agreement (IRSSA).

The court had previously dismissed the Chief Adjudicator's RFD but directed Canada to bring a proposal for archiving copies of Non-Claim Records with the National Centre for Truth and Reconciliation (NCTR).

The parties disagreed on the wording of the resulting order.

The court resolved these disagreements, largely upholding the Chief Adjudicator's draft order regarding the treatment of privileged documents, the default regime for record retention, and the sealing of certain court exhibits, while rejecting proposed elaborations by the NCTR and Assembly of First Nations.

The applicant, Nazha Boulos as estate trustee, sought a declaration that her late husband's estate was the beneficiary of three Registered Retirement Income Fund (RRIF) accounts held by Duca Financial Services Credit Union for the late Yura Nicola Khagek.

Mr. Khagek had previously designated Mr. Boulos as the beneficiary of his Registered Retirement Savings Plan (RRSP) accounts, which were later automatically converted to RRIFs by Duca Financial without a new beneficiary designation.

The court, applying principles from the Succession Law Reform Act and relevant case law, found that the original RRSP beneficiary designation traced to the converted RRIF accounts, reflecting Mr. Khagek's clear intention to gift the funds to Mr. Boulos.

The application was granted, declaring Mr. Boulos's estate as the beneficiary of the RRIF accounts.

This decision addresses the costs of motions previously heard, where Rakhi Kalia's motion to dismiss the action or disqualify counsel was largely dismissed, and Adarsh Kalia's cross-motion for a timetable and case management was granted.

The late Mrs. Kalia's estate sought costs on a substantial indemnity scale, alleging Rakhi Kalia's delaying tactics.

The court found that while Rakhi Kalia's unsuccessful motion delayed the action, her conduct was not reprehensible enough to warrant substantial indemnity costs.

The court awarded costs on a partial indemnity basis to Mrs. Kalia's estate in the amount of $13,500.00, all inclusive.

The plaintiff, owner of a rooftop condominium unit, sued the condominium corporation and other unit owners over the boundaries and exclusive use of common elements (Elevator Landing, Interior Hallway, Roof, South Stairwell) and for torts including trespass and nuisance.

The defendants brought a motion for partial summary judgment.

The court granted partial summary judgment, declaring the Elevator Landing part of the plaintiff's unit, but the Interior Hallway, Roof, and South Stairwell as common elements.

All tort claims against individual unit owners were dismissed.

The tenant, 6791971 Canada Inc., applied for a court order determining that the landlord, Eli Messica, unreasonably withheld consent to assign a commercial lease to Moksha Enterprise Ltd. The landlord initially expressed satisfaction with the proposed assignee but later rescinded consent, citing concerns that the assignee might seek to renegotiate rent and that the tenant was in default of lease renewal agreement improvements.

The court found that the landlord's primary stated reason for refusal (assignee seeking rent renegotiation) dissipated after the assignee confirmed its intent to abide by the lease terms.

The court also determined that the landlord's subsequent reliance on the tenant's alleged defaults was an after-the-fact justification and not the genuine reason for refusal at the time.

The application was granted, concluding that the landlord's refusal was unreasonable.

The plaintiff, Weins Canada Inc., brought a motion seeking to include contractual pre-judgment and post-judgment interest in a draft order, following a successful summary judgment motion for breach of a commercial lease.

The original summary judgment order, which awarded $106,614.13 plus $10,000 in costs, did not explicitly mention interest, despite it being claimed in the Statement of Claim.

The defendant, Ensil Corporation, opposed the motion, arguing the court was functus officio.

The court found it was not functus officio as the order had not yet been entered.

However, the motion was dismissed because the plaintiff failed to provide any new evidence or sufficient reason to vary, amend, or add to the original reasons for decision.

The City of Toronto sought substantial indemnity costs of $75,000 after successfully obtaining summary judgment against the plaintiff, Dimostenis Karpouzis, in an occupier's liability and public nuisance action.

The City argued that Karpouzis's conduct unduly lengthened the proceedings and that he rejected offers to settle.

The court awarded the City partial indemnity costs of $55,000, finding that while Karpouzis's delays were a factor, the City's offers to settle were "strategic bullying" rather than genuine attempts to resolve a serious personal injury claim, and thus did not warrant a punitive costs award on a substantial indemnity scale.

MarshallZehr Group Inc. (MZ) brought a summary judgment motion against Ideal Developments Inc. (Ideal) seeking payment of charges after MZ cancelled a $15.2 million loan commitment and dismissal of Ideal's counterclaim for alleged wrongful termination.

The court found that MZ lawfully cancelled the loan pursuant to a cancellation provision in the commitment letter, which did not require notice or a cure period as argued by Ideal under the default provisions.

The court granted summary judgment to MZ for $508,071.09, comprising standby interest, lender's fees, and expenses, and dismissed Ideal's counterclaim.

The Town of Lincoln sought a declaration that AIG Insurance Company of Canada had a duty to defend it under a public entity general insurance policy.

The Town was a defendant in a negligence action alleging sewage overflow due to a ruptured pipe, disrepair of a storm sewer, and improper land grading.

AIG denied coverage based on a pollution exclusion clause.

The court found that the claim against the Town had two branches: one related to the pumping station and sewage flood (potentially subject to exclusion), and another related to the storm sewers and land grading (not subject to the exclusion).

As the second branch was not derivative and concerned a different wrongdoing, the pollution exclusion did not apply to it.

Therefore, the insurer had a duty to defend.

The plaintiffs in a proposed class action against Yahoo!

Inc. and Yahoo!

Canada Co. for privacy breaches brought a consent motion for a pre-certification representation order.

The order sought to appoint Charney Lawyers PC as representative counsel to negotiate a holdback agreement with Altaba Inc. (formerly Yahoo) during its dissolution in Delaware.

This agreement would secure potential creditor claims for the approximately 5 million putative class members in Canada.

The court granted the order, finding it necessary and desirable under Rule 10.01 of the Rules of Civil Procedure and s. 12 of the Class Proceedings Act, 1992, to protect the interests of the unascertained class members and ensure the fair and expeditious determination of the class proceeding, drawing parallels to representation orders in CCAA proceedings.

The Applicant, First Condo Group Ltd., sought an order for insurance coverage from the Respondent, Lloyd’s Underwriters, which was dismissed in a prior application.

This decision addresses the Respondent's claim for costs on a partial indemnity basis, totaling $31,548.48.

The Applicant argued the Respondent's counsel fees were excessive given the limited scope of the application and compared them to its own billable hours.

The court found the Respondent's costs claim reasonable, noting the serious nature of the underlying application (exposing Lloyd's to $2 million liability) and the helpfulness of the legal research, and granted the full amount requested.

This decision addresses costs following a successful application by Fela Grunwald and a dismissed application by Edwin Le Marchant and Laura Fiset concerning a right-of-way agreement.

Grunwald sought substantial indemnity costs of $97,459.25 or partial indemnity costs of $80,603.86.

The Le Marchants proposed $43,035.

The court awarded Grunwald $66,000, all inclusive, on a partial indemnity basis.

The court found that while the Le Marchants' arguments were without merit, their conduct did not warrant punitive substantial indemnity costs.

The decision emphasizes that costs generally follow the event on a partial indemnity scale, guided by the principles of indemnification, reasonable expectations of the unsuccessful litigant, and overall reasonableness under Rule 57.01(1) of the Rules of Civil Procedure.

The plaintiffs, trustees of a pension fund, commenced a class action in Ontario and a similar one in Federal Court.

Settlements were reached with some defendants in the Federal Court action.

The plaintiffs sought court approval to discontinue the Ontario action, with prejudice and without costs, in favour of the Federal Court proceedings.

The court granted the motion, finding no prejudice to putative class members as their claims would continue in the Federal Court, and that discontinuing the Ontario action would avoid a multiplicity of proceedings.

The defendant, Rakhi Kalia, brought a motion to dismiss an action commenced by her mother, Adarsh Kalia, alleging the plaintiff's lawyer lacked authority and had a conflict of interest.

Adarsh Kalia, through her litigation guardian, cross-moved for a timetable and case management.

The court found the lawyer was properly authorized, initially by a power of attorney and subsequently by the Public Guardian and Trustee.

The court dismissed Rakhi's motion (except for granting leave to amend her Statement of Defence) and granted Adarsh Kalia's cross-motion, ordering a case conference to establish a timetable for the action.

The plaintiff, a real estate developer, brought a motion for summary judgment against the self-represented defendant for breach of contract after the defendant failed to close a home purchase, claiming damages of $622,505.66.

The court found that despite the plaintiff's arguments, the evidentiary record, including the defendant's unsworn affidavit, possibly raised genuine issues for trial concerning contract formation, extension agreements, market value, damages calculation, and mitigation.

The court adjourned the motion to allow for cross-examinations of the plaintiff's affiants and recommended the defendant retain legal counsel, emphasizing the need for a just determination based on a complete evidentiary record.

The defendants, RBC Life Insurance Company, Lauren McLean, and Anna Oslizlok, sought costs on a partial indemnity basis totaling $7,108.52 after successfully striking out the claim against McLean and Oslizlok and succeeding on a discovery order motion.

The plaintiff, Randolph Burns, argued for a reduced award of $2,265.00, citing uncontested portions, disproportionate time spent by defendants' counsel, and unreasonable settlement discussions.

The court found the motions important and capably argued, rejecting the plaintiff's arguments regarding work product and settlement discussions.

The court awarded $6,000, all inclusive, to the defendants.

The applicant, an engineering firm, sought insurance coverage from the respondent for a professional negligence claim.

The claim arose from a reserve fund study completed in November 2013, which allegedly failed to identify a corroded lamppost.

A worker was injured in October 2015 due to the lamppost's collapse.

The insurer denied coverage based on a retroactive date exclusion clause (September 11, 2015), arguing the "incident" was the negligent study preparation (2013), which occurred before the retroactive date.

The applicant contended the "incident" was the worker's injury (2015), which occurred after the retroactive date.

The court dismissed the application, finding that the word "incident" in the exclusion clause unambiguously referred to the alleged misconduct in 2013, not the subsequent injury in 2015.

The plaintiff, Dimostenis Karpouzis, sued the City of Toronto for negligence (occupiers' liability) and public nuisance after suffering a serious brain injury while skateboarding at night on an unlighted recreational trail in a city park.

The City moved for summary judgment to dismiss the action.

The court granted the City's motion, finding that the City did not act with reckless disregard under the Occupiers' Liability Act, as the risks of using an unlit trail at night were obvious and willingly assumed by the plaintiff.

The public nuisance claim was also dismissed, as keeping a forested park open at night with an unilluminated trail was not found to interfere unreasonably with public health, safety, or convenience.

The plaintiff, Katalin Malatinszky, brought a summary judgment motion seeking damages for the defendant, Ahmad Miri's, failure to close a real estate transaction.

The defendant counterclaimed for the return of his $50,000 deposit and damages, alleging the plaintiff repudiated the agreement and failed to mitigate her losses.

The court found that the plaintiff did not breach the Agreement of Purchase and Sale and acted reasonably in mitigating her damages.

Consequently, the court granted summary judgment to the plaintiff for $144,814.70 plus prejudgment interest and dismissed the defendant's counterclaim.

The Representative Plaintiffs in a certified class action sought leave to dismiss the action due to a lack of reasonable prospect of success after an expert report undermined their case.

The Defendants did not oppose the dismissal but sought substantial partial indemnity costs for a withdrawn summary judgment motion and for defending the class action.

The Class Proceedings Fund, responsible for adverse costs, argued the Defendants' costs claim was excessive.

The court granted leave to dismiss the action and awarded the Defendants $300,000 in total partial indemnity costs, significantly less than the $750,025.31 sought by the Defendants but more than the $65,000 proposed by the Fund.