Ray Thapar

The plaintiff, Valentina Avdeeva, sought substantial indemnity costs against the Estate of Mr. Levon Haftan and personal costs against the Estate Trustee, Caroline Khousehabeh, following a judgment declaring Avdeeva the sole owner of a property.

The court awarded Avdeeva costs on a substantial indemnity basis against the Estate, reduced by 30% for partial success on other claims, totaling $135,242.58.

The court also found the Trustee personally liable for a portion of these costs incurred after she obtained the Order to Continue, due to her reprehensible conduct and pursuit of litigation for personal benefit without estate assets.

The plaintiff brought an action against the estate of a deceased family friend, claiming sole beneficial ownership of two properties and seeking repayment of loans evidenced by promissory notes.

The estate claimed a 50% interest in one of the properties, Bowan Court, arguing it was intended as a matrimonial home for the deceased and the plaintiff's daughter.

The court dismissed the plaintiff's claims regarding the first property and the loans due to pleading deficiencies and lack of corroboration.

However, the court granted the plaintiff's claim for sole ownership of Bowan Court, finding no evidence of a common intention or unjust enrichment to support the estate's trust claims, and ordered the deceased's 1% interest removed from title.

This decision addresses several evidentiary issues that arose during a trial concerning claims of property conversion and trust.

The plaintiff, Valentina Avdeeva, alleges that Levon Khankaldiyan (whose estate is represented by the defendant, Caroline Khoushabeh) converted one property and held another in trust.

The court ruled on the admissibility of newly discovered documents, the personal testimony of the estate trustee (Caroline Khoushabeh), and the evidence of a third-party witness regarding a romantic relationship.

The court admitted new documents under Rule 53.08, finding no undue prejudice.

It largely excluded Caroline Khoushabeh's hearsay evidence due to lack of necessity and reliability, emphasizing the principle against trial by ambush, but allowed her non-hearsay observations.

The court also admitted the evidence of Edward Hambrachian, finding it consistent with disclosure rules despite initial objections, and deferred a decision on the application of the rule in Browne v. Dunn to Levon's discovery evidence, requesting further submissions.

The plaintiff brought a motion to adjourn an 8-day trial scheduled to commence shortly, arguing that the defendant's late disclosure of 147 new documents, including bank statements and documents of disputed authenticity, and a new witness statement, necessitated additional time for review, examination of the affiant, and further inquiries.

The defendant opposed the adjournment, citing the estate trustee's lack of information regarding the new documents and alleging the plaintiff's history of delaying the action.

The court granted a three-week adjournment, finding that the late disclosure was problematic and that the plaintiff deserved the opportunity to properly prepare for trial, prioritizing a fair trial on the merits despite the case's long history.

The defendant brought a third motion to dismiss the action for delay, which was dismissed on terms with an expedited timetable.

The plaintiff sought costs of the motion on a partial indemnity scale, while the defendant argued no costs should be awarded.

The court found that although the defendant was unsuccessful, it was not unreasonable to bring the motion given the 15-year history of the action and previous judicial criticism of the plaintiff's delay.

The court ordered the parties to bear their own costs.

The defendant estate brought a third motion to dismiss the plaintiff's 15-year-old action for delay.

The plaintiff seeks a declaration of beneficial ownership of a property.

The court focused on the delay subsequent to the second dismissal motion in 2017.

The court found that the delay since 2017 was not intentional, contumelious, or inordinate, and was largely explained by the original defendant's death and the COVID-19 pandemic.

The court also found that a fair trial remained possible because the action overlapped significantly with an ongoing application by the estate, and much of the evidence was preserved through affidavits and discovery transcripts.

The motion to dismiss was denied, but strict terms were imposed to move the action to trial.

The plaintiff, Surinder Singh Manchanda, sought leave under Rule 1.08(5) to give evidence and participate in the trial by videoconference from Thailand, due to repeated refusals of his Temporary Resident Visa applications.

The defendants opposed the request.

The court denied the motion, finding that the plaintiff had not demonstrated all reasonable efforts to secure personal attendance, citing his failure to truthfully answer visa application questions and not pursuing judicial review.

Leave was granted to bring the motion again before the trial judge.

This decision addresses two motions: one by defendant Martini to compel the examination of Gheorghe Leferman (sole officer/director of the plaintiff, Romcan Limited) as a witness under Rule 39.03 for a pending motion for a further and better affidavit of documents, and another by defendant Shulgan to compel Mr. Leferman's examination for discovery.

The court granted Martini's Rule 39.03 motion, limiting the scope of examination to specific areas where Mr. Leferman had improperly introduced hearsay evidence, and deemed requests for personal documents premature.

Shulgan's motion for examination for discovery was also granted, finding that he had met the preconditions and the benefits of early discovery outweighed the burden of a second examination for Mr. Leferman.

Martini's motion for a further and better affidavit of documents was adjourned.

Costs were divided for Martini's motion due to mixed success, while Shulgan was awarded $5,000 for his entirely successful motion.

The plaintiff sought costs on a full indemnity basis following the resolution of two actions involving a loan for a car rental business.

The plaintiff had previously obtained a Mareva injunction and Norwich Orders after the defendants allegedly misappropriated the loaned funds.

The court found that the defendants engaged in reprehensible conduct by breaching court orders and attempting to resile from an agreement that the injunctions were properly granted.

The court awarded the plaintiff costs on a substantial indemnity scale, but reduced the quantum to account for duplicative counsel, unrelated claims, and the appearance that resulted in the settlement.

Costs were apportioned between the two sets of defendants.

The plaintiff brought a motion to set aside a registrar's order dismissing the action for delay.

The court found that the plaintiff provided a reasonable explanation for the delay, noting that the defendants' failure to advance their third-party claim contributed to the delay in scheduling mediation.

The court also found that the defendants suffered no actual prejudice from the delay, as the intervening bankruptcy of some defendants was unrelated to the litigation timeline.

The motion was granted and the dismissal order was set aside, with no order as to costs.

The estate of a deceased lawyer appealed a trial judge's damages assessment in an undefended trial arising from breaches of fiduciary duty by former employees.

The defendants had wrongfully removed and transferred 120 client files to a competing law firm.

The trial judge awarded $344,513.87 in general damages plus $145,662.19 in prejudgment interest but declined to award punitive damages.

The appellate court found three errors: (1) improper double-counting of overhead expenses in calculating general damages; (2) failure to award punitive damages despite egregious misconduct; and (3) undercompensation of special damages for disbursements.

The appeal was allowed in part, increasing the total award to $627,678.09 plus prejudgment interest.

Following the dismissal of the plaintiff's claim at trial, the successful defendants sought costs of $75,000.

The court found that the plaintiff had unreasonably pursued a meritless case, provided tailored evidence, and rejected an offer to settle that would have resulted in a dismissal without costs.

Applying the factors under Rule 57.01(1) and Rule 49, the court awarded the defendants costs on a substantial indemnity basis, fixed at $50,000 inclusive of disbursements and HST.

The plaintiff, FLS Transportation Services Inc., sought an interim injunction against former employees and their new employer, Charger Logistics Inc., to restrain them from working for a competitor, soliciting clients and employees, and misusing confidential information.

The court applied the three-part test for an interlocutory injunction (serious issue to be tried, irreparable harm, balance of convenience) and also considered the "clean hands" doctrine.

The court found that FLS failed to establish a strong prima facie case for breach of restrictive covenants, breach of confidence, or fiduciary duty, largely due to FLS's own prior statements in other proceedings that the information was not confidential.

Furthermore, FLS failed to demonstrate irreparable harm, and the balance of convenience favoured the defendants.

The motion was dismissed, also noting that FLS's conduct in misrepresenting the court's order to a client constituted a failure to come to court with "clean hands."

The plaintiff, Mohanjit Singh Jassal, sued the defendants, Pawan Kaith, Bibi Kaith, and Kundan Kaith, for specific performance or damages arising from an Agreement of Purchase and Sale (APS) for a residential property.

The plaintiff alleged the APS was binding and never rescinded, while the defendants claimed it was orally rescinded shortly after signing due to a change in family circumstances.

The court found the plaintiff's testimony unreliable and concluded that the parties had mutually agreed to rescind the APS.

Consequently, the plaintiff's claim was dismissed.

The court also determined, in obiter, that even if the APS had not been rescinded, specific performance would not have been granted as the property was not unique, and only nominal damages would have been awarded due to the availability of similar properties.

Following a successful motion for leave to amend a statement of defence and counterclaim, the moving party sought substantial indemnity costs.

The opposing party had argued the amendments were statute-barred and legally untenable.

The court held that substantial indemnity costs are reserved for rare cases involving reprehensible conduct or where an offer to settle justifies such an award, neither of which was present.

Applying the factors under Rule 57.01 and s.131 of the Courts of Justice Act, the court fixed costs on a partial indemnity basis and reduced the claimed time by disallowing duplicative counsel time.

Costs of $5,000 plus disbursements and HST were awarded.

The defendant moved to dismiss the plaintiff’s action for failure to satisfy prior costs orders totaling more than $45,000 and for delay in prosecuting the action.

The plaintiff, through her granddaughter acting under an alleged power of attorney, asserted medical incapacity and financial hardship as reasons for non‑payment and delay.

The court found the evidence supporting impecuniosity and incapacity weak, contradictory, and largely unsupported, noting property transfers to family members and a lengthy history of delay and procedural default.

While recognizing that striking a claim is a drastic remedy, the court held the plaintiff had failed to justify her non‑compliance and lack of progress.

The court granted the plaintiff a final opportunity to pay the outstanding costs and comply with discovery obligations, failing which the defendant could seek dismissal.

The plaintiff sought costs thrown away after the defendant failed to attend a scheduled examination for discovery.

The defendant argued that preparation time was not wasted as it could be used for the rescheduled examination, and that counsel should not have attended because notice of non-attendance was given.

The court discounted the preparation time slightly but allowed the attendance costs, noting it was appropriate to obtain a certificate of non-attendance.

The court awarded the plaintiff $1,446.40 in costs thrown away.

The moving parties sought to have the action declared deemed dismissed under Rule 48.15(6), to set aside two ex parte orders, and to dismiss the claim against an individual defendant.

The responding party brought a cross-motion to set aside the deemed dismissal after lengthy settlement negotiations had delayed service and counsel had overlooked the transitional dismissal regime.

Applying the Reid factors contextually, the court held the delay was adequately explained, the missed deadline was inadvertent, the motion for relief was prompt once the issue was discovered, and no significant prejudice was shown.

The deemed dismissal was set aside and service of the statement of claim was validated nunc pro tunc, but the venue transfer order was set aside and the attempt to dismiss the individual defendant's claim failed.

Members of a religious corporation brought motions relating to governance disputes within the corporation.

The court considered applications to intervene, the validity of a consent order appointing corporate directors following a mediation process before another judge, alleged breaches of that order, and related procedural matters.

The respondents argued that the consent order appointing directors should be set aside on grounds including lack of a condition precedent and alleged illegality under the Corporations Act.

The court rejected those arguments, holding that the consent order was valid and final, having been agreed to by all parties through counsel and approved through the agreed process.

Injunctive relief was granted restraining certain respondents from interfering with the corporation’s governance and requiring the turnover of corporate property and documents.

Following dismissal of a motion seeking to remove the plaintiffs’ solicitors of record, the court addressed costs.

Applying the discretion under s.131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court considered proportionality and the surrounding circumstances.

Although the plaintiffs were the successful party, the motion had been dismissed without prejudice and the defendant’s timing argument was not improper or vexatious.

Relying on the fairness principles articulated in appellate authority, the court fixed costs at a reasonable amount rather than the full costs incurred.