Peter J. Cavanagh

The Applicant, a mortgagee, sought to vary a previously consented receivership order concerning three properties (Harwood Properties) in Ajax.

The original order, which appointed a receiver, included provisions requiring consultation with the Town of Ajax on sales and a new development agreement with a right of re-purchase for the Town.

These terms were agreed upon in exchange for the Town's consent to the receivership and a stay of its own action regarding a re-purchase right and priority dispute.

The Applicant argued that changed circumstances, specifically the unacceptability of the development agreement terms to potential purchasers, justified varying the order and determining the priority of its mortgage over the Town's re-purchase right.

The court dismissed the motion, emphasizing the finality of consent orders and that the Applicant had agreed to the terms, which resolved a pending priority dispute.

The court found no misrepresentation by the Town that would vitiate the Applicant's consent and held that the comeback clause should not be used to prejudice parties who relied on the original order.

The plaintiffs, a group of private companies, brought a motion seeking to find Dr. Saad Aljabri and his son, Mohammed Aljabri, in contempt of court for allegedly breaching a Mareva Order.

The plaintiffs claimed the defendants used assets frozen under the Mareva Order to pay for legal and living expenses, arguing that a purported gift of assets from Dr. Aljabri to Mohammed before the order was a fiction.

The defendants contended that the Mareva Order did not clearly apply to the gifted assets and that the gift was valid.

The court dismissed the plaintiffs' motion, finding that they failed to prove beyond a reasonable doubt that the Mareva Order clearly and unequivocally applied to the purportedly gifted assets, or that Dr. Aljabri retained an interest in or control over them.

The court emphasized the high standard of proof (beyond a reasonable doubt) required for civil contempt and that findings from prior civil proceedings (e.g., 'badges of fraud' on a balance of probabilities) do not shift the burden of proof in quasi-criminal contempt proceedings.

The defendant, Michael Garron Hospital (MGH), sought substantial indemnity costs for a dismissed motion brought by the plaintiffs concerning lease rights.

MGH argued for elevated costs due to alleged bad faith and an unaccepted offer to settle.

The court found no reprehensible conduct justifying substantial indemnity costs and ruled that the offer to settle did not trigger Rule 49.10 consequences for an elevated scale.

The court awarded MGH costs on a partial indemnity scale, fixing the amount at $40,000 all-inclusive, considering the motion's importance, moderate complexity, and the principle of fairness and reasonableness.

This endorsement addresses the costs of a successful motion by the Defendant, Andrew Rudensky, to set aside a noting in default and default judgment obtained by the Plaintiffs.

The Plaintiffs argued for no costs or an offset, asserting Mr. Rudensky's fault for the default.

The court found the Plaintiffs solely responsible for failing to properly serve Mr. Rudensky, thus dismissing their arguments regarding his alleged fault or delay.

The court also rejected Mr. Rudensky's claim for substantial indemnity costs under Rule 49.10, finding that his offer to settle was not "beaten" by the costs endorsement itself.

Ultimately, the court fixed Mr. Rudensky's partial indemnity costs at $79,253.40, payable by the Plaintiffs within 30 days.

The Applicant, a dissenting shareholder, sought costs on a full indemnity basis after successfully obtaining an order fixing the fair value of his shares.

The court had previously ordered the Respondent to pay $63,000 for the shares.

The Applicant argued that the Respondent failed to comply with s. 185(15) of the Ontario Business Corporations Act (OBCA) by offering zero for the shares, which would trigger full indemnity costs under s. 185(21).

The court found that the Respondent's offer of zero, accompanied by an explanation, did comply with s. 185(15) and therefore, the costs consequences of s. 185(21) were not triggered.

The court awarded costs on a partial indemnity scale, fixing them at $99,951.75, after considering the factors in Rule 57.01 of the Rules of Civil Procedure, the complexity of the case, and the proportionality of the costs claimed relative to the amount at issue.

This endorsement concerns the costs arising from successful anti-SLAPP motions brought by the Crown Defendants and the Better Business Bureau of Central Ontario Inc. (BBB) against A&H Asset Auctions Inc. The court considered the presumption of full indemnity costs under s. 137.1(7) of the Courts of Justice Act.

It found that the indicia of a SLAPP suit were not present, and therefore, an award of full indemnity costs was not appropriate.

The court awarded costs on a partial indemnity basis to both the Crown Defendants and BBB, fixing the amounts at $150,416 and $87,122.55 respectively.

The defendant, Andrew Rudensky, moved to set aside a default judgment and noting of default obtained by the plaintiffs for defamation.

The court found that the Amended Statement of Claim was not properly served on Mr. Rudensky at his place of residence, rendering the default judgment irregularly obtained.

Applying the "as of right" rule for irregularly obtained judgments, the court set aside both the default judgment and the noting of default.

The plaintiff, a former employee, brought a motion for summary judgment against the defendant for unpaid vacation, deferred bonuses, and stock options.

The court found that the plaintiff was not constructively dismissed but had retired.

However, the court granted summary judgment for the plaintiff on the claims for unused vacation pay, deferred bonuses, and the value of lost stock options, finding no genuine issue requiring a trial for these claims.

The defendant's counterclaim for just cause dismissal had been previously dismissed by the Court of Appeal, and the current court found issue estoppel applied to prevent its re-litigation as a defense.

This is a costs endorsement following a trial where the plaintiff partially succeeded on his claim for $100,000 and successfully defended a $2 million counterclaim.

The plaintiff sought costs on a partial indemnity scale.

The court awarded costs to the plaintiff, but reduced the claimed fees by $10,000 due to the plaintiff's late abandonment of general damages claims, which resulted in unnecessary expenditures of time.

The final costs were fixed at $70,876.32.

The plaintiff, a suspended and terminated coach member of Athletics Ontario (AO), sought an interlocutory injunction to restrain AO from interfering with his attendance or coaching at sports events not hosted by AO, even if sanctioned by AO.

The court applied the three-part test for interlocutory injunctions from RJR-MacDonald.

The court found that the plaintiff failed to establish a serious issue to be tried regarding AO's alleged unlawful conduct (threats to third parties, calls to police), as his evidence was inadmissible hearsay under Rule 39.01(4) of the Rules of Civil Procedure.

Consequently, the motion for an interlocutory injunction was dismissed, and costs were awarded to the defendants.

The Dowdell Parties and York Condominium Corporation No. 403 ("YCC 403") each brought applications under the Condominium Act, 1998.

The Dowdell Parties sought declarations of breach and oppression, an order for YCC 403 to maintain exterior windows using external equipment, and damages, arguing against YCC 403's access through their unit for maintenance.

YCC 403 sought declarations that the Dowdell Parties breached s. 19 of the Act by refusing access for anchor inspection/testing and window cleaning, and an order compelling access and provision of keys.

The court dismissed the Dowdell Parties' application, finding YCC 403's maintenance approach reasonable and no material harm or oppression.

The court granted YCC 403's application, declaring the Dowdell Parties in breach of s. 19 for refusing access and ordering them to permit entry and provide keys, emphasizing the condominium corporation's broad powers and the reasonableness of its access requirements for common element maintenance.

Citibank, N.A. commenced an application seeking the appointment of an investigative receiver for Rodrigo Lebois Mateos' assets, inspection of records for Terralpa Investment Fund I Limited Partnership and Araterra Inversiones, and compliance with the Limited Partnerships Act.

The respondents brought a motion to permanently or temporarily stay the application in favour of ongoing proceedings in the United States District Court for the Southern District of New York.

The court granted a temporary stay of Citibank's application for a receiver, finding a substantial overlap with the U.S. proceedings and potential for duplication of resources.

However, the court ordered Terralpa LP and Araterra Inversiones to comply with the record-keeping and disclosure requirements of the Limited Partnerships Act, as this relief was outside the U.S. court's jurisdiction.

A sealing order was also granted for sensitive financial information to maintain comity with the U.S. proceedings.

The Plaintiff sought repayment of a $100,000 loan from the Defendant.

The Defendant argued the loan was conditional on the sale of certain assembled properties and counterclaimed for $2 million in damages, alleging breach of a partnership agreement related to a land assembly project.

The court found no evidence that the loan was conditional and held it was due.

Furthermore, the court determined that no enforceable partnership agreement existed between the parties regarding the land development or sale, as essential terms were never settled or formalized in writing as intended.

The Plaintiff's action for the loan repayment was allowed, and the Defendant's counterclaim was dismissed.

SureFire Dividend Capture LP (SDC) sought indemnification from Berkshire Hathaway Specialty Insurance under a fidelity bond for losses incurred due to a Ponzi scheme perpetrated by Brenda Smith, manager of Broad Reach Capital, LP (BRC), in which SDC had invested.

SDC claimed coverage under three insuring agreements (A)(1), (A)(4), and (B)(1)(b) of the Bond.

The court found that SDC failed to establish that its loss fell within the initial grant of coverage under any of the agreements, primarily because the stolen funds belonged to BRC, not SDC or its investors, and Brenda Smith was not an "Employee" of SDC as defined by the Bond for the purposes of SDC's direct claim.

The court also noted that SDC failed to disclose a material "in-kind" transfer of interests from other funds to SDC, which would have excluded coverage for that portion of the loss.

SDC's claim for punitive damages for bad faith was also dismissed.

This case concerns the contractual interpretation of a "Life of Mine" supply agreement for liquid sodium cyanide between Kinross (as buyer) and Cyanco (as seller).

Kinross sought a declaration that the agreement did not preclude it from sourcing solid sodium cyanide from other suppliers and converting it to liquid for its mining operations.

The court dismissed Kinross's claim, finding that such an action would conflict with the agreement's terms, which established Cyanco as the sole supplier of liquid sodium cyanide required by Kinross's mines for their operations.

The court emphasized reading the contract as a whole, giving words their ordinary meaning, and considering commercial reasonableness.

The Applicant sought recognition and enforcement of an international arbitration award against the Respondent.

The Respondent opposed, arguing the Applicant was not a legal entity and lacked standing, and moved to dismiss or stay the application.

The Applicant brought a cross-motion to amend its name in the title of proceedings.

The court granted the Applicant's motion to amend its name, finding that the use of a shorter name in the commercial agreement was permissible under Luxembourg law and that the Applicant was the correct award recipient.

The Respondent's motion to dismiss or stay was dismissed.

The court then granted the Applicant's request to recognize the arbitration award, rejecting the Respondent's arguments regarding estoppel and the arbitrator's impartiality, noting that the impartiality challenge had already been unsuccessfully litigated before the arbitration administrator.

The plaintiff, Coffee Time (2015) Corporation, sought costs on a partial indemnity scale after being granted partial summary judgment against the defendants for franchise fees, interest, and rent arrears.

The court, however, exercised its discretion under Rule 57.01 and 57.05 of the Rules of Civil Procedure to deny the plaintiff any costs.

This decision was based on the plaintiff's conduct, specifically their failure to properly calculate rent arrears and account for a rent deposit, which unnecessarily lengthened the proceeding.

Furthermore, the total amount recovered by the plaintiff fell within the monetary jurisdiction of the Small Claims Court, leading the judge to conclude the action should have been brought there.

The defendants moved to dismiss a 2009 action for delay and, alternatively, for security for costs.

The court found the delay of 13 years to be inordinate and inexcusable, primarily due to the plaintiff Lawrence Mark Dale's inactivity and failure to provide explanations or respond to the motion.

A presumption of prejudice to the defendants arose, which the plaintiff failed to rebut, particularly given the nature of the conspiracy claims requiring witness recollection.

The action was dismissed for delay.

The court also addressed the security for costs motion, noting that if the action had not been dismissed, Mr. Dale would have been ordered to post $400,000 in security for costs to TRREB due to an outstanding costs order against him in another proceeding.

The Toronto Transit Commission (TTC) appealed an Associate Justice's decision regarding refusals motions during discovery in two related actions.

The TTC alleged conspiracy, breach of fiduciary duty, and unjust enrichment against Ronald Howard Spaeth, Specbilt Enterprises Inc., and Michael Hickey, claiming they manipulated procurement processes and overcharged for parts.

Mr. Hickey also sued TTC for wrongful dismissal.

The appeal concerned the production of financial records, bank records, and documents related to the relationship between Mr. Spaeth and Prostuff Group.

The court allowed the appeal in part, finding the Associate Justice erred in principle by overly limiting the scope of relevant documents for production, particularly regarding financial records and supplier transactions, and the relationship between Mr. Spaeth and Prostuff Group, but upheld the refusal for general payroll records.

The plaintiff, Coffee Time (2015) Corporation, sought summary judgment against the defendants, 1685247 Ontario Limited and Khursheed A. Choudhry, for unpaid franchise fees and rent arrears under a franchise agreement and sublease.

The defendants raised several defenses, including limitation periods, the effectiveness of the assignment of the agreements to the plaintiff, disputes over the calculation of fees and rent, a claim for accelerated rent, and credit for abandoned property.

The court granted partial summary judgment, finding the assignment effective as an equitable assignment, adjusting the calculation of rent arrears based on a reduced minimum rent, denying the claim for accelerated rent as the tenancy was month-to-month, and denying credit for abandoned property due to insufficient evidence.

The plaintiff was awarded specific amounts for franchise fees and rent arrears, with interest on franchise fees.