Paul Starkman

Following the dismissal of the plaintiffs' summary judgment motion and the action regarding a real estate transaction, the successful defendant sought costs of $57,953.69 on a substantial indemnity basis, relying on an offer to settle.

The court reviewed the principles of costs, including proportionality and the rules regarding offers to settle.

Finding no reprehensible conduct by the plaintiffs to justify elevated costs, the court fixed the costs payable to the defendant at $30,000 inclusive of HST and disbursements.

The plaintiff purchaser brought a motion for summary judgment seeking the return of a $300,000 deposit and delayed closing compensation following a failed pre-construction real estate transaction.

The purchaser argued the vendor breached the Tarion Addendum by improperly setting closing dates and failing to obtain an occupancy permit.

The court found that the vendor's notices complied with the Tarion Addendum and that the agreement placed the obligation to obtain the occupancy permit on the purchaser.

The court concluded that the purchaser failed to close the transaction and ordered the $300,000 deposit forfeited to the vendor.

The plaintiffs appealed an Associate Judge's order dismissing their motion to strike the defendants' statement of defence for alleged failure to answer undertakings as required by consent orders.

The plaintiffs also sought leave to appeal the $20,000 costs award.

The Superior Court of Justice dismissed the appeal, finding that the Associate Judge made no palpable and overriding errors of fact or errors of law in concluding that the defendants had made reasonable efforts to comply with the undertakings.

Leave to appeal the costs order was also denied as there was no error in principle.

The Ouyang defendants brought a motion for security for costs against the plaintiff under Rules 56.01(1)(a) and (e) of the Rules of Civil Procedure.

The court found that the defendants failed to prove the plaintiff resided outside Ontario under subrule (a).

However, under subrule (e), the court determined the plaintiff's claim against the Ouyang defendants appeared frivolous and vexatious, as the loan agreement was with a non-party corporation and guaranteed by another defendant, with no legal basis for the Ouyang defendants' liability.

The court also found insufficient evidence of the plaintiff's assets in Ontario.

The motion was granted, and the plaintiff was ordered to post $25,000 in security for costs.

The plaintiff successfully moved for the production of financial records related to the defendant from third-party financial institutions.

The plaintiff sought costs of the motion.

The defendant opposed the quantum but failed to file a costs outline as ordered.

The court awarded the plaintiff its costs on a partial indemnity basis in the all-inclusive sum of $28,125.92, noting the defendant's conduct in expanding the issues and the failure to file a costs outline.

The plaintiff successfully moved for the production of financial records from third-party financial institutions related to the defendants.

The plaintiff sought costs of the motion on a partial indemnity basis.

The defendants argued that costs should be left to the trial judge and contested the quantum, but failed to provide a costs outline.

The court awarded the plaintiff costs of $22,892.14 on a partial indemnity basis, noting the defendants' conduct in expanding the issues and their failure to file a costs outline.

The plaintiff municipality brought a motion under Rule 30.10 for the production of financial records from non-party financial institutions relating to the defendant Snowball.

The action involves an alleged $23 million fraud scheme manipulating the plaintiff's procurement processes.

Snowball, a former employee, opposed the motion, arguing the records were not relevant, production was not necessary before discovery, and it would violate her privacy rights.

The court found the records were highly relevant to tracing the defrauded funds and assessing liability, and that pre-discovery production was necessary for the forensic accountants to complete their investigation.

The court also rejected the privacy arguments, finding no constitutional or statutory protection that would override the open court principle and the need for disclosure.

The motion was granted.

The plaintiffs brought a motion to strike the defendants' statement of defence, alleging a failure to answer undertakings from earlier court orders regarding the production of financial statements, tax returns, and bank records.

The court found that the defendants had either answered or used best efforts to answer the undertakings, such as requesting documents from the CRA, accountants, and banks.

The motion was dismissed, and the plaintiffs were ordered to pay $20,000 in costs due to the disproportionate expense incurred on the motion.

The plaintiff municipality brought a motion under Rule 30.10 for the production of financial records held by non-party financial institutions relating to the defendants.

The action arose from an alleged $2.5 million fraud involving the manipulation of the municipality's procurement processes by a former employee and various vendors.

The former employee had previously been convicted of criminal fraud related to the same conduct.

The court granted the motion, finding that the records were highly relevant to tracing the misappropriated funds and quantifying the losses, and that it would be unfair to require the plaintiff to proceed to discovery without them.

The court rejected the defendants' argument that their privacy interests precluded production.

The plaintiff failed to set a construction lien action down for trial within the statutory two-year period, resulting in the lien being dismissed.

The defendant brought a motion to dismiss the underlying contract action due to delay.

The court dismissed the motion, finding that the defendant had not suffered specific prejudice and emphasizing the principle that disputes should be resolved on their merits.

The action was permitted to proceed as a contract claim.

The plaintiff appealed a Master's order requiring him to post $20,000 in security for costs.

The plaintiff argued the Master erred in finding he was not ordinarily resident in Ontario and in concluding the order was just.

The Superior Court of Justice dismissed the appeal, finding ample evidence supported the Master's factual conclusion regarding residency, including the plaintiff's limited time in Ontario, lack of assets, and intention to return to Malaysia.

The court also held the Master made no error of law, having properly balanced the plaintiff's access to justice against the defendants' need for protection from an uncollectible costs award.

A case conference was held to establish a timetable for an upcoming motion for summary judgment.

The court endorsed the schedule agreed to by all counsel, setting deadlines for the delivery of materials, cross-examinations, and factums.

The plaintiff insured sought coverage after his tenants caused an explosion and fire while attempting to extract marijuana resin.

The insurer denied coverage based on a marijuana exclusion clause.

The plaintiff argued that a subsequent amendment to the Insurance Act (s. 129.1) protecting innocent insureds should apply.

The court granted summary judgment to the insurer, finding that the marijuana exclusion clause applied irrespective of the amendment because it excluded a specific use of the property regardless of the insured's knowledge.

Furthermore, the court held that the amendment could not be applied retrospectively as it would affect the insurer's vested contractual rights.

Following the dismissal of the plaintiff's claim for a real estate commission after a mini-trial, the defendants sought costs.

The defendants had made a Rule 49 offer to settle for $10,000, which the plaintiff rejected.

The court found that the plaintiff's decision to proceed to trial despite the clear evidence and the settlement offer justified the costs claimed.

The court awarded the defendants $143,931.31 in costs, representing partial indemnity up to the date of the offer and substantial indemnity thereafter.

The plaintiff brought a motion for detailed particulars of the defendants' statement of defence, arguing they were necessary to file a reply.

The underlying action involved allegations of negligence and breach of contract regarding a severance application and home design.

The court dismissed the motion, finding that the requested particulars were evidentiary in nature and should be elicited during examinations for discovery, rather than being necessary for the plaintiff to understand the issues or plead appropriately.

The plaintiff successfully defeated the defendants' summary judgment motion in a condominium construction defect case.

The plaintiff had previously served an offer to settle the motion on terms more favourable than the outcome.

The court awarded the plaintiff substantial indemnity costs of $42,812.79, finding the time spent reasonable given the complexity and volume of materials.

The court ordered these costs to be set off against $26,879.89 the plaintiff owed the defendants from previous motions, resulting in a net payment of $15,932.90 to the plaintiff.

The plaintiff real estate brokerage sought commission from the corporate defendants after an initial agreement of purchase and sale was terminated during the due diligence period, and a subsequent agreement was entered into by a different corporate entity.

The court held a mini-trial to determine the ownership of the corporations, the intentionality of terminating the first agreement, and the circumstances of the second agreement.

The court found that the two corporations were separate legal entities with different investors, the first agreement was terminated legitimately due to unsatisfactory due diligence, and there was no basis to pierce the corporate veil.

The plaintiff's action was dismissed.

The plaintiff bank brought a motion for summary judgment against the defendant guarantor for a corporate debt.

The defendant denied signing the guarantee and alternatively pleaded undue influence by her husband.

The court dismissed the motion, finding the bank failed to provide a proper evidential foundation.

The bank relied on affidavits from an employee with no personal knowledge, appending hearsay documents without establishing their admissibility.

The court held there were genuine issues for trial regarding the authenticity of the guarantee and whether the bank took reasonable steps to rebut the presumption of undue influence.

The moving defendants brought a motion to discharge a certificate of pending litigation (CPL) obtained ex parte by the plaintiffs.

The defendants argued the plaintiffs failed to make full and fair disclosure of material facts as required by Rule 39.01(6).

The court reviewed the record and found that the plaintiffs had complied with their disclosure obligations, noting that the alleged misrepresentations were actually triable issues regarding the interpretation of agreements and personal liability.

The motion to discharge the CPL was dismissed.

The applicant condominium corporation sought an order permitting it to enter the respondents' unit to inspect a staircase following noise and vibration complaints from the unit below.

The respondents refused entry, issued a trespass notice, and argued the request was unreasonable, made in bad faith, and statute-barred.

The court granted the application, finding the corporation had a statutory right and duty to inspect the unit upon reasonable notice, the application was not statute-barred, and prior mediation/arbitration was not required for disputes enforcing the Condominium Act.