P. James Zibarras

Following the dismissal of a motion brought by Money Gate Corporation, the successful responding parties sought costs. 2399029 Ontario Inc. and World Corporation Inc. sought substantial indemnity costs of $185,687.19 due to unsubstantiated allegations of fraud, which Money Gate Corporation did not dispute in principle but argued were inflated.

The court reduced the claimed amount due to unnecessary work and fixed costs at $160,000 on a substantial indemnity scale.

Curah Capital Corporation was awarded its requested $12,024 on a partial indemnity scale.

In a receivership proceeding, a non-party, Money Gate Corporation (MGC), brought a motion seeking a distribution of $1,159,517.66 from the proceeds of the sale of a property, claiming to be the assignee of a second mortgage.

The motion was opposed by the property owner and the holder of subsequent charges.

The court dismissed the motion, finding that MGC failed to prove it used its own funds or funds raised from private investors to purchase the assignment.

Furthermore, MGC's failure to register the transfer under the Land Titles Act meant it did not have priority over subsequent registered charges.

Following a decision declaring the respondent a vexatious litigant and staying his underlying civil claims as an abuse of process, the court determined the scale and quantum of costs.

The court awarded full indemnity costs to both groups of applicants for both the applications and the underlying civil actions, citing the respondent's extreme, baseless claims and his well-funded, obsessive litigation campaign.

Costs were fixed at $53,175.37 for the Flores applicants and $195,970.46 for the JFCY applicants.

The applicants, including a legal clinic and family friends, brought applications under s. 140 of the Courts of Justice Act to have the respondent declared a vexatious litigant.

The respondent had engaged in years of relentless litigation across multiple jurisdictions following his teenage daughter's decision to withdraw from his custody, repeatedly alleging abduction, fraud, and conspiracy against anyone involved.

The court found that the respondent persistently and without reasonable grounds instituted vexatious proceedings and conducted them in a vexatious manner, continually attempting to re-litigate issues already decided against him.

The applications were granted, the respondent was declared a vexatious litigant, and he was prohibited from instituting or continuing related proceedings without leave of the court.

A trial was ordered within a receivership application to determine the ownership of three corporations that held interests in real property.

The plaintiff claimed to be the owner of the corporations, while the principal of the Laila Group of Companies claimed the corporations were subsidiaries of her company, World Corp. The court found both parties lacked credibility and had fabricated documents.

Ultimately, the court determined that the plaintiff was the legal owner of one corporation but held it on a resulting trust for World Corp., and that World Corp. was the legal and beneficial owner of the other two corporations.

The defendants brought a motion under Rule 7.06(2) to substitute the plaintiff's litigation guardian, alleging the plaintiff's mother was not acting in her best interests.

The underlying action involved allegations that the defendants manipulated the mentally ill plaintiff into selling her property significantly below market value.

The court dismissed the motion, finding no evidence to support the defendants' claims and characterizing the motion as an improper tactical manoeuvre to disrupt the litigation.

The defendants (plaintiffs by counterclaim) brought an urgent motion for interim injunctive relief to stop the plaintiffs and their principals from engaging in a relentless campaign of online harassment and defamation via Instagram.

The dispute originated from a failed transaction involving luxury handbags and watches, which previously led to ex parte Mareva and Anton Piller orders against the defendants.

The court found that the principals of the plaintiff corporation had posted highly defamatory statements, threats, and images obtained from the execution of the court orders.

Applying the stringent test for defamation injunctions, the court granted the requested relief, ordering the removal of the posts and restraining further contact and publication.

The defendants/plaintiffs by counterclaim brought an urgent motion for an interim injunction to restrain the plaintiffs/defendants to the counterclaim from publishing defamatory statements and images on Instagram and other internet platforms, and from contacting them.

The court found that the moving parties met the stringent test for an interlocutory injunction in a defamation context, noting the extensive and vitriolic nature of the posts, which included threats and the improper use of information obtained through ex parte Anton Piller and Mareva orders.

The motion was granted.

The receiver of assets in receivership proceedings moved to determine whether an appeal brought by Canada Investment Corporation (CIC) from an order of Penny J. was as of right or required leave under the Bankruptcy and Insolvency Act.

The order had directed that proceeds from the sale of the Caldwell property, otherwise payable to CIC, be paid to the Stanbarr Claimants based on findings in a prior action that CIC was indebted to them.

The motions judge held that the appeal was as of right under section 193(c) of the BIA because the order resulted in a loss to CIC by directing payment of funds otherwise due to it to third parties.

The receiver's motion was dismissed.

In a receivership proceeding, the Receiver conducted a court-ordered claims process to determine entitlement to surplus proceeds from the sale of a property.

The Stanbarr Claimants sought the funds based on a prior judicial finding that the respondent, Canada Investment Corporation, had improperly inflated a mortgage payout statement.

The respondent opposed the Receiver's recommendation to pay the funds to the claimants, arguing the prior judicial finding was not final.

The court upheld the Receiver's recommendation, finding the prior decision was res judicata, and ordered the funds paid to the claimants.

A lawyer appealed a trial judgment awarding damages for malicious prosecution and breach of contract against her.

The trial judge found that the lawyer had initiated criminal proceedings against an unlicensed paralegal by making misleading complaints to police regarding missing client files.

The Court of Appeal allowed the appeal, finding that the trial judge erred in concluding the lawyer initiated the prosecution, as the police exercised independent discretion in their investigation.

The court also found errors in the trial judge's application of the rule in Browne v. Dunn and in taking judicial notice regarding mitigation of damages.

The plaintiff law clerk sued the defendant lawyer for breach of a business agreement and malicious prosecution.

The defendant had falsely reported to the police that the plaintiff stole client files and forged letterhead, leading to criminal charges that were later withdrawn.

The court found the defendant's evidence completely lacking in credibility, concluding she fabricated evidence, withheld exculpatory information from the police, and acted with malice.

The plaintiff was awarded $7,500 for breach of contract, $50,000 for malicious prosecution, and $25,000 in punitive damages.

The plaintiff, a former officer and director of the defendant mining company, sued for wrongful dismissal seeking over $2.3 million under a 2008 Management Consulting Agreement.

The defendant argued the agreement was unenforceable due to the plaintiff's breach of fiduciary duty in its negotiation and that, in any event, the plaintiff was terminated for just cause.

The court found the 2008 agreement was the product of a flawed process and contained unfair terms, constituting a breach of fiduciary duty.

Furthermore, the court held the plaintiff's subsequent conduct, including installing hidden cameras, issuing unauthorized press releases, and trading shares during blackout periods, provided just cause for termination.

The action was dismissed.

The plaintiffs, shareholders in several real estate corporations, sought leave to commence a derivative action and amended their statement of claim to add new causes of action following the discovery of a multi-million dollar fraud by a co-investor.

The defendants moved to strike the new claims and opposed the derivative action.

The court held that the motion for leave to commence a derivative action was statute-barred under the Limitations Act, 2002, applying the Supreme Court's reasoning in CIBC v. Green regarding the unavailability of nunc pro tunc orders to circumvent expired limitation periods.

The court also struck the new claims for breach of contract, breach of fiduciary duty, and negligence as statute-barred, but allowed the unjust enrichment and oppression claims to proceed.

Competing motions were brought to vary a Mareva injunction to permit access to frozen funds for legal expenses.

The plaintiffs sought $1.5 million from a frozen bank account in their name, while the defendants sought $534,000 from other frozen assets.

The court reviewed the legal test governing access to funds subject to a Mareva injunction and held that the test for defendants seeking release of funds did not apply in the same way when plaintiffs sought access to funds they claimed to own.

The court found the plaintiffs had established a sufficient proprietary interest in the account but exercised discretion to limit access due to credibility concerns and the procedural history of multiple collateral proceedings.

Partial funding was granted to both sides to permit fair participation in the litigation.

Competing motions were brought to vary a Mareva injunction to permit access to frozen funds for legal expenses.

The plaintiffs sought $1.5 million from a frozen bank account in their name, while the defendants sought $534,000 from other frozen assets.

The court reviewed the legal test governing access to funds subject to a Mareva injunction and held that the test for defendants seeking release of funds did not apply in the same way when plaintiffs sought access to funds they claimed to own.

The court found the plaintiffs had established a sufficient proprietary interest in the account but exercised discretion to limit access due to credibility concerns and the procedural history of multiple collateral proceedings.

Partial funding was granted to both sides to permit fair participation in the litigation.

Following dismissal of an application challenging confirmation of a Master’s Report after a lengthy trial, the successful party sought costs on a partial indemnity basis.

The court reviewed the reasonableness of the hours claimed for responding to and preparing for the motion, noting that the same counsel had participated at trial and were already familiar with the evidence.

The court held that the preparation time claimed for the motion was excessive and reduced it by half.

Applying the principle that costs awards must be reasonable and reflect parties’ expectations as to quantum, the court fixed a reduced lump‑sum costs award.

The defendants applied under Rule 54.09(2) to oppose confirmation of a master's report following a 12‑day construction lien trial.

The master had found that the owner repudiated the construction contract, that performance milestones were implicitly amended due to design and structural changes imposed by the owner, and that the contractor was entitled to damages and a construction lien.

On review, the court applied the appellate standard of review requiring an error in principle or palpable and overriding error.

The court held that the master's factual findings regarding the applicable construction plans, scope changes, and amended milestone sequence were supported by the evidence and entitled to deference.

The application to oppose confirmation of the master's report was dismissed.

The plaintiff creditor sought to set aside several property transfers made by the debtor to his spouse and to a corporation owned by the spouse, alleging they were fraudulent conveyances under the Fraudulent Conveyances Act.

The court analyzed transfers occurring in 1987, 1988, 1992, and 1993, applying the statutory test and the common-law “badges of fraud.” It held that earlier transfers of commercial and farm properties in 1987–1988 were not fraudulent because the plaintiff was not yet a creditor and there was insufficient evidence that the debtor reasonably anticipated insolvency at the time.

However, transfers of the debtor’s interest in the matrimonial home in 1992 and a Florida condominium in 1993 occurred when the debtor faced serious financial exposure and litigation, and were made with intent to defeat creditors.

Those later transfers were set aside.

Although the plaintiff delayed extensively in pursuing the action, the defence of laches failed because the defendants did not prove specific prejudice from the delay.

The applicant sought to set aside an arbitration award requiring payment of finder’s fees arising from investments made by a third-party investor introduced through the respondent.

The applicant argued the arbitrator committed unreasonable errors of law, improperly relied on a prior agreement, misinterpreted a non‑circumvention clause, and exceeded jurisdiction by determining issues relating to securities law registration requirements.

The court held that even if reasonableness review were available, the arbitrator’s interpretation of the finder’s fee agreement was reasonable and grounded in the contractual language and factual matrix.

The court further held that securities law compliance issues were capable of arbitration and that the applicant had waived jurisdictional objections by raising the issue before the arbitrator.

The application to set aside the award was dismissed and the cross‑application to enforce the arbitration award was granted.