Peter Joseph Cavanagh

This costs endorsement follows the dismissal of applications by Belokon, Entes, Sistem, and Stans (the "Applicants") to recognize and enforce arbitral awards against the Kyrgyz Republic (the "Republic"), and to declare an exigible ownership interest of the Republic in Centerra Gold Inc. shares held by Kyrgyzaltyn JSC.

The Republic and Kyrgyzaltyn (the "Respondents") sought costs.

The court awarded costs on a partial indemnity basis, rejecting claims for full or substantial indemnity.

It also determined that costs should be payable on a several, not joint and several, basis due to the unrelated nature of the Applicants and the court-directed common issue hearing.

The court limited the costs award to the common issue hearing, excluding prior jurisdiction motions or general recognition application costs, and considered previous compensation for materials.

The applicants sought a declaration that the Kyrgyz Republic held an exigible ownership interest in shares of Centerra Gold Inc. registered in the name of its wholly-owned subsidiary, Kyrgyzaltyn JSC, to enforce arbitral awards.

The court dismissed the applications, finding that the Agreement on New Terms (ANT) unambiguously established Kyrgyzaltyn JSC as the beneficial owner of the shares, not the Republic.

The court rejected arguments based on contract interpretation under New York law and trust principles under Canadian law, emphasizing the separate legal personality of the subsidiary and the lack of evidence for an ownership interest or trust.

The plaintiff, Husky, brought an action against its founder, Robert Schad, his new company Athena, and others, alleging misuse of confidential information relating to injection molding machines.

Husky claimed that Athena accessed confidential information from Husky machines placed at a third-party facility (Niigon) and used it to develop competing machines.

The defendants argued the claims were statute-barred, that most issues were settled during prior negotiations, and that no confidential information was misused.

The court dismissed Husky's claims, finding they were statute-barred as Husky knew of the material facts more than two years before commencing the action.

The court also found that the commercially available machines were not confidential, and that Athena did not make material use of any confidential information from the prototype machines.

Athena's counterclaim for abuse of process and injurious falsehood was also dismissed for lack of evidence.

The moving party sought leave to appeal an order that set aside a Mareva injunction but declined to do so on the basis of material non-disclosure, and which did not preclude the responding party from bringing a fresh motion for injunctive relief.

The moving party also sought leave to appeal the costs disposition.

The Divisional Court dismissed the motion, finding that the moving party failed to meet the strict test for leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure, as there was no conflicting decision and the proposed appeal did not involve matters of general or public importance.

The moving parties sought leave to appeal an interlocutory order striking out an affidavit filed in opposition to an application to recognize and enforce a foreign arbitral award.

The motion judge had struck the affidavit on the basis that it was clearly irrelevant and scandalous.

The court dismissed the motion for leave to appeal, finding no conflicting decisions on matters of principle and no good reason to doubt the correctness of the motion judge's order.

The plaintiffs in a proposed class action regarding beer pricing and market allocation in Ontario sought leave under s. 29 of the Class Proceedings Act to discontinue the action against the LCBO and treat it as an unnamed co-conspirator.

The court dismissed the motion as premature, finding that the discontinuance should occur, if at all, only after the close of pleadings, as the remaining defendants had not yet filed statements of defence and might assert cross-claims or third-party claims against the LCBO.

The court also found the evidentiary record inadequate to justify discontinuance.

Following a successful motion by the respondent to set aside a Mareva injunction, the court determined the appropriate scale and quantum of costs.

The respondent sought substantial indemnity costs of $138,144.10, while the applicant argued for partial indemnity costs of $55,000.

The court found no conduct justifying substantial indemnity costs and awarded partial indemnity costs fixed at $75,000 for fees plus disbursements, considering the complexity and the large amount at stake.

The applicant brought a motion to strike an affidavit filed by a respondent in an application to recognize and enforce a foreign arbitral award under the International Commercial Arbitration Act.

The affidavit alleged that the applicant had engaged in money laundering and other criminal activity relating to the investment that was the subject of the arbitration.

The court held that the affidavit attempted to relitigate issues already determined by the arbitral tribunal and would improperly create a “trial within a trial” on the merits of the award.

Because recognition and enforcement proceedings under the UNCITRAL Model Law permit only narrow defences, the affidavit was clearly irrelevant and scandalous.

The affidavit was struck, though it could remain in the record solely as part of the Paris annulment proceedings.

A state-owned corporation moved to set aside or vary a Mareva injunction freezing shares and dividends of a Canadian mining company in aid of enforcing a foreign arbitral award against a sovereign state.

The moving party argued the injunction should be set aside for lack of full and frank disclosure and because subsequent appellate decisions undermined the factual basis relied upon to establish that the state beneficially owned the frozen shares.

The court held the applicant had exercised reasonable diligence and did not breach the duty of full and frank disclosure.

However, later appellate decisions overturning related rulings significantly weakened the evidentiary basis supporting the injunction.

The court ordered the Mareva injunction set aside at a future date, varied it immediately to reduce the amount of frozen assets, and permitted the award creditor time to bring a new motion on notice.

The defendant brought a motion for summary judgment seeking dismissal of a claim arising from a land purchase agreement involving residential development lands in Oshawa.

The plaintiff alleged that the Agreement of Purchase and Sale and related Omnibus Agreement required a post-closing readjustment of the purchase price where the net developable area of the lands was later reduced.

The court held that the contracts did not provide for post-closing adjustments to the purchase price, and that the closing adjustments based on the consultant’s calculation of net developable area were final.

The plaintiff’s later attempt to rely on a recalculation based on modified development constraints was not conducted using the contractual definition of net developable area and was based on the purchaser’s subsequent development choices.

Interpreting the agreements to allow indefinite post-closing adjustments would create commercial uncertainty and absurdity.

Summary judgment was granted dismissing the claim.

The accused was charged with impaired operation of a vessel causing death and operating a vessel with a blood alcohol concentration over 80mg causing death, following a tragic boating accident where a water skier was struck and killed by the boat's propeller.

The central issue at trial was the identity of the driver of the boat at the time of the collision.

While the accused made statements shortly after the accident suggesting she was the driver, the court found these statements unreliable due to her hysterical state.

The only eyewitness who testified the accused was driving had significant inconsistencies in his evidence.

Applying the W.(D.) test, the court concluded the Crown failed to prove beyond a reasonable doubt that the accused was operating the vessel, resulting in an acquittal on all charges.

An insolvent developer applied for interpretation of a subdivision agreement and standby letter of credit securing municipal works in a development project.

The developer argued that the municipality could use proceeds from the letter of credit to pay unsecured trade creditors who had supplied goods and services before the developer’s insolvency.

The court held that the agreement limited the municipality’s entitlement to prospective costs associated with completion or rectification of municipal works and did not authorize retroactive payment to unsecured creditors.

The court rejected reliance on the autonomy doctrine governing letters of credit, noting that permitting such retroactive payments would be fraudulent where the bank had not secured those obligations.

The application for the requested interpretation was dismissed.

In proceedings under the Companies’ Creditors Arrangement Act, the court addressed scheduling issues for a complex multi‑party trial involving the allocation of assets among creditor groups.

The parties proposed deferring the trial from April 1, 2014 to April 28, 2014, but disagreement remained regarding whether the later date would be feasible.

The court concluded that maintaining the earlier date risked a chaotic trial and that a rolling start date would create further uncertainty.

To ensure certainty and orderly preparation, the court rescheduled the trial to begin May 12, 2014 for 20 days and set case management and trial management conferences.

The court also required all parties to provide comprehensive fee and disbursement summaries to monitor escalating litigation costs.

The defendants brought a motion for security for costs against the corporate plaintiff in a complex software copyright and breach of confidence action.

The court found good reason to believe the plaintiff had insufficient assets in Ontario to pay the defendants' costs if unsuccessful.

The plaintiff failed to establish impecuniosity or a good chance of success on the merits.

The court ordered the plaintiff to post $1,110,000 in security for costs, payable in three installments, to balance the defendants' need for protection with the risk of stifling the litigation.

Members of a church brought an application seeking an interlocutory injunction preventing a congregational meeting to vote on the dismissal of the senior pastor and requesting a mandatory order requiring the church to admit additional individuals to membership.

The dispute arose after church elders decided to limit consideration of new membership applications to those submitted before a specified date while simultaneously proposing to add twelve members prior to the vote.

The court held that although civil courts should be cautious when intervening in the internal affairs of religious organizations, intervention is appropriate where the process is unfair or contrary to principles of natural justice.

The court found the elders’ process unfair because it materially altered the membership composition while excluding other similarly situated applicants.

An injunction preventing the meeting was granted and certain additional individuals were permitted to submit their names for membership consideration.

The plaintiff bank brought a motion for summary judgment to recover outstanding debts arising from credit facilities and credit card obligations guaranteed by several corporate and personal guarantors.

The defendants argued that the reasonableness of the bank’s legal fees, the discharge of a third mortgage security, and other accounting issues created genuine issues requiring trial.

The court held that the only unresolved issue concerned the reasonableness of legal fees, which would be determined through an assessment under the Solicitors Act.

Excluding those disputed legal fees, the court found no genuine issue requiring trial regarding the remaining indebtedness and rejected the defence that discharge of a mortgage extinguished the underlying debt.

Summary judgment was granted for the minimum outstanding principal, the counterclaim was dismissed, and the remaining legal fees were ordered to be determined by assessment.

The plaintiff real estate agent sued the defendant for a commission under a listing agreement after introducing a purchaser.

The defendant cancelled the property sale and instead structured the transaction as a sale of shares by its parent company to the purchaser.

The plaintiff moved to amend its claim to add the parent company, plead an indirect sale and breach of good faith, and add an oppression claim under the Business Corporations Act.

The defendant moved to strike the claim for disclosing no reasonable cause of action.

The court granted the plaintiff's motion to amend and dismissed the defendant's motion to strike, finding that the proposed claims were tenable at law and not plain and obvious to fail.

The appellant appealed a motion judge's decision to vary a procedural consent order and order the disclosure of an audit report.

The Court of Appeal dismissed the appeal, finding that the motion judge properly varied the consent order because the respondent's counsel was unaware of material facts when consenting.

The Court also upheld the disclosure of the audit report, as there was unanswered evidence that the Trustee had already declared its existence and contents to a third party, making it unnecessary to decide the broader issue of whether a Trustee in Bankruptcy can claim litigation privilege.

The plaintiffs sought leave to appeal to the Divisional Court from an order setting aside an ex parte Anton Piller order.

The motion judge had set aside the order due to material non-disclosure, including the failure of the plaintiff, a status Indian, to disclose that his undertaking as to damages was unenforceable under s. 89(1) of the Indian Act, and the failure to present a complete factual picture.

The Divisional Court found that while the failure to disclose the Indian Act provision might not alone justify setting aside the order, the overall material non-disclosure regarding the business relationship justified the motion judge's decision.

The motion for leave to appeal was dismissed.

The plaintiffs obtained an ex parte Anton Piller order, which was subsequently set aside by a Superior Court judge.

The plaintiffs sought to appeal the setting aside of the order and brought a motion before a single judge of the Court of Appeal for a stay pending appeal.

The Court of Appeal judge determined that the order setting aside the Anton Piller order was interlocutory, not final, because it did not determine the real matter in dispute between the parties.

Consequently, the appeal belonged in the Divisional Court, and the motion for a stay in the Court of Appeal was dismissed.