Perell

This is a costs decision following an application regarding a referral agreement between two law firms.

The respondent, who was successful on the issue of how much should be paid into court, sought and was awarded costs as a self-represented litigant.

The Bank of Nova Scotia, a creditor of the applicant, sought and was awarded full indemnity costs based on its banking agreement with the applicant.

The appellants, Trafalgar Insurance and Economical Insurance, appealed an arbitrator's decision in a priority dispute regarding statutory accident benefits.

The arbitrator had found that Arch Insurance was not the insurer of the vehicle involved in the accident because the vehicle was not owned or leased by Arch's named insured, despite being mistakenly listed on a fleet schedule.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error or error of law in the arbitrator's conclusion that the vehicle did not qualify as a 'described vehicle' under the OPCF 21A endorsement.

A related costs appeal was also dismissed as premature.

Following a successful application for the return of a $50,500 deposit from an abortive real estate transaction, the applicants sought costs on a substantial indemnity basis.

The respondent also sought costs despite being unsuccessful.

The court found no clear finding of reprehensible conduct to justify substantial indemnity costs.

The court awarded the applicants costs of $25,000 on a partial indemnity basis, reflecting the fair and reasonable expectations of the unsuccessful litigant.

The parties in a certified class proceeding regarding purchasers of hotel units in the Trump Tower sought a consent order approving the form and content of the proposed Notice of Settlement Approval Hearing.

The court reviewed the proposed notice plan, which included direct mail, email, a dedicated website, and a Facebook page to reach geographically dispersed class members.

Finding the notice and notice plan satisfactory under section 27.1(8) of the Class Proceedings Act, 1992, the court granted the order.

The defendant brought a motion to dismiss the proposed employment class action for delay pursuant to section 29.1 of the Class Proceedings Act, 1992.

The plaintiff had terminated his counsel's retainer and failed to take any steps to advance the proceeding or file a certification motion record by the statutory deadline.

The court found the motion was uncontestable as the plaintiff did not satisfy the mandatory conditions to keep the action alive.

The action was dismissed for delay with costs awarded to the defendant.

In a certified class action concerning contaminated heater-cooler systems used during cardiac surgery, the plaintiff brought an unopposed motion seeking the production of patient mailing lists from 21 non-party hospitals across Canada.

The court granted the motion, finding it had jurisdiction to order the disclosure of contact information to facilitate communication with class members and gather evidence.

The order included provisions to protect patient privacy and exempted the hospitals from liability under provincial health privacy legislation.

Following a summary judgment motion in a wrongful dismissal action where the plaintiff recovered $17,587.11, both parties made written submissions on costs.

The plaintiff sought $35,000 in partial indemnity costs, while the defendant sought $17,387.88 in costs thrown away.

The court noted that both parties had advanced and subsequently abandoned serious, unsubstantiated allegations during the litigation.

Given the conduct of both parties and the plaintiff's recovery falling within the Small Claims Court monetary jurisdiction, the court ordered no costs to either party.

At a case management conference in a class proceeding, certain defendants requested a timetable for a motion to dismiss the action for delay under s. 29.1 of the Class Proceedings Act, 1992.

The plaintiffs sought to file material, conduct written interrogatories, or summons witnesses to explore why other defendants took no position on the motion.

The court denied the plaintiffs' request for interrogatories and cross-examinations, finding them unnecessary, irrelevant, and likely to breach privilege.

Exercising its case management powers under s. 12, the court directed the motion to proceed in writing without cross-examinations and set a timetable.

Following a successful summary judgment motion in an abortive real estate transaction, the plaintiffs sought partial indemnity costs of $35,668.79.

The defendant requested a stay of the costs assessment pending the resolution of crossclaims and third-party claims, or alternatively, a reduction in the quantum.

The court dismissed the request for a stay, finding the main action was concluded.

The court awarded the plaintiffs their requested costs, noting the amount was reasonable and within the defendant's expectations, as evidenced by the defendant's own costs outline of $43,670.00.

The defendants in a proposed opioid class action moved to dismiss the proceeding for delay under s. 29.1 of the Class Proceedings Act, 1992.

In response, the plaintiff brought a cross-motion for a nunc pro tunc timetable order and commenced parallel proceedings in Manitoba.

The parties reached a settlement wherein the competing motions were dismissed without costs, the Manitoba proceedings would be discontinued, and the Ontario action would be deemed commenced on October 2, 2020, making it subject to the amended certification test under the Smarter and Stronger Justice Act, 2020.

The court approved the settlement and issued the consent orders.

The self-represented applicants successfully applied to set aside an arbitral award in favour of the respondent condominium corporation.

They sought costs of $37,814.65 on a full indemnity basis.

The court reviewed the principles for awarding costs to self-represented litigants, noting they must demonstrate they did work ordinarily done by a lawyer and incurred an opportunity cost.

Although the applicants did not prove lost remunerative activity, the court awarded them $7,500 all-inclusive to facilitate access to justice, sanction the respondent's inappropriate behaviour, and encourage settlements.

The applicant law firm sought payment of $119,495.63 from the respondent law firm under a referral agreement, and requested that a portion of the funds be paid to its lawyers for legal fees and business expenses.

The respondent acknowledged owing $82,157.90 but sought to pay the funds into court due to claims by the applicant's creditors and an existing Mareva injunction freezing the applicant's assets.

The court found the respondent owed $82,157.90 and ordered the funds paid into court pursuant to Rule 72, dismissing the applicant's request for direct payment as an improper collateral attack on the Mareva injunction.

The plaintiffs brought a motion for an interlocutory injunction to prevent the sale of a commercial property, or alternatively, to hold 50% of the net proceeds of any sale in trust.

The plaintiffs claimed that a 1997 transfer of their 50% interest in the corporation owning the property was subject to an unwritten trust agreement.

The court dismissed the motion, finding that while there was a serious issue to be tried, the plaintiffs failed to demonstrate irreparable harm as they were ultimately seeking monetary compensation.

Furthermore, the balance of convenience favoured the defendants due to the plaintiffs' significant delay in prosecuting the action.

The defendant brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss the plaintiff's defamation action.

The action arose from tweets published by the defendant accusing the plaintiff of fraud and misappropriation of funds raised for victims of the Fort McMurray wildfires.

The court dismissed the motion, finding that the plaintiff had demonstrated substantial merit to his defamation claim and that the defendant's defences of justification, fair comment, and responsible communication did not have a real prospect of success.

The court also found that the public interest in permitting the action to proceed outweighed the public interest in protecting the defendant's expression.

The plaintiff, a newly formed lacrosse league, sought an interlocutory injunction to suspend the defendant's regulations that penalized players for participating in competing leagues.

The plaintiff argued the regulations constituted intentional interference with economic relations.

The court dismissed the motion, finding no serious issue to be tried as the defendant was merely enforcing long-standing rules and not intentionally targeting the plaintiff.

The court also found the balance of convenience favoured the defendant, as suspending the rules would destabilize its established organization.

The plaintiffs brought a motion for a Mareva injunction against the defendants, alleging they were defrauded of over $800,000 CAD/USD through a fake investment scheme.

The defendants allegedly promised to invest the funds in options, futures, or forex, but instead diverted the funds and ceased communications.

The court found the plaintiffs established a strong prima facie case of fraud, conspiracy, breach of trust, breach of fiduciary duty, knowing assistance, and conversion.

The court granted the Mareva injunction, finding a serious risk of asset dissipation.

Park Lawn Corporation and its CEO, J. Bradley Green, brought an anti-SLAPP motion to dismiss a defamation counterclaim filed by Kahu Capital Partners Ltd. The counterclaim arose after Green made allegedly defamatory statements about Kahu Capital in a trade newsletter, accusing the firm of complicity in the alleged wrongdoings of Park Lawn's former CEO.

The court dismissed the anti-SLAPP motion, finding that while the statements related to a matter of public interest, there were grounds to believe the counterclaim had substantial merit and that the moving parties had no valid defence.

The court concluded that the harm suffered by Kahu Capital outweighed the public interest in protecting the expression.

The plaintiffs (purchasers) brought a motion for summary judgment for the return of their $60,000 deposit after an abortive real estate transaction, and for the dismissal of the defendant vendor's counterclaim for breach of contract.

The agreement of purchase and sale was conditional on financing and review of a status certificate.

The conditions were not waived in writing by the deadline, rendering the agreement null and void.

The vendor argued the purchasers waived the conditions by their conduct.

The court granted summary judgment, finding no genuine issue requiring a trial, as the conditions were not waived and the purchasers made no misrepresentations.

The deposit was ordered returned and the counterclaim dismissed.

The plaintiffs brought a motion for case management of 43 individual negligence actions against the defendants, operators of long-term care homes.

These actions originated from a proposed class action that was discontinued in 2018 and replaced with individual claims.

On consent, the parties agreed to withdraw the case management motion without costs, subject to terms including scheduling discoveries in designated actions and requiring the plaintiffs to bring motions to discontinue 25 of the actions.

The plaintiff was successful on an appeal of an interlocutory order and sought costs.

The plaintiff requested partial indemnity costs for the original motion and substantial indemnity costs for the appeal, citing the defendants' aggressive threats against the plaintiff's counsel and procedural misconduct.

The court rejected the defendants' argument that no costs should be awarded.

Applying the principle that substantial indemnity costs are justified by reprehensible conduct, the court awarded the plaintiff its full requested costs of $11,856.33.