Richard J. Worsfold

This was a post-trial costs decision following lengthy, highly contested mortgage litigation and an 11-day trial.

The successful defendants sought either full indemnity costs or a blended award, relying on their unaccepted offer to settle, fraud-like allegations advanced by the plaintiffs, and mortgage standard charge terms.

The court held that the offer to settle engaged Rule 49.10 and justified substantial indemnity costs from the offer date onward, while also recognizing limited enhancement arising from the unsuccessful fraud-like allegations.

After considering Rules 57.01 and 49 and the overall fairness of the award, the court fixed costs at $229,121.76.

Plaintiffs commenced an action alleging fraud, deception, and improper conduct arising from a series of mortgage and financial transactions involving real estate properties and business dealings.

The court held the action turned primarily on credibility and preferred the defendant’s evidence over that of the principal plaintiff.

The court found the plaintiff’s testimony inconsistent and unreliable, and concluded many claims were barred by the Limitations Act, 2002 and further defeated by the corporate veil where the transactions involved corporate entities rather than the individual plaintiff.

The plaintiffs failed to establish any contractual or legal basis for personal recovery.

The action was dismissed and judgment was granted on the defendant’s counterclaim for the outstanding mortgage balance.

Following an earlier order granting comprehensive directions concerning the administration of two related estates, the applicants sought costs.

The applicants had successfully obtained an order requiring, among other things, preservation of estate assets and directions relating to the administration of the estates and the conduct of attorneys acting under a power of attorney.

The court found that the responding estate trustees had taken unreasonable positions by refusing to provide an informal accounting and declining reasonable settlement efforts.

Applying the principles of proportionality and reasonableness under Rule 57.01, the court awarded full indemnity costs to the applicants.

Costs were ordered partly against the respondent trustees personally and partly payable from the capital of one of the estates.

The applicant corporation sought a stay of the respondent’s motion to set aside a 2007 judgment and requested security for costs due to the respondent’s failure to pay prior costs awards.

The respondent argued the costs were not payable by her and opposed security for costs.

The court found that prior orders imposed joint and several liability for the costs and that the respondent had failed to comply with those orders for several years while residing outside Ontario.

The court held that a party should not be permitted to pursue further relief while ignoring outstanding costs obligations.

The proceeding was stayed unless the respondent paid the outstanding costs and posted security for costs.

The applicants brought a motion for an Order for Directions regarding the estates of Enrico and Ida Carfagnini.

They sought to consolidate the two actions, obtain a preservation order, compel the passing of accounts by Ida's attorneys for property, and order the disclosure of third-party solicitor and financial records.

The respondents opposed the consolidation and the preservation order for Enrico's estate.

The court granted the applicants' motion, ordering the consolidation of the actions, a preservation order for both estates, the passing of accounts, and the requested disclosure, finding that the issues in both estates were intertwined and raised significant concerns.

The parties brought cross-motions regarding the valuation of the applicant's shares in a family holding company.

The applicant sought to have an arbitrator appointed or the issues heard in court, alleging oppression and breach of a unanimous shareholders' agreement regarding a 2008 transaction.

The respondents sought the appointment of a valuator, arguing the valuation date was fixed in 2007.

The court held that a valuator is not qualified to deal with oppression or breach of contract claims, and because a non-party to the shareholders' agreement was involved, arbitration was unavailable.

The court ordered that the oppression and breach of contract claims be dealt with by the court before any valuator is appointed.

A dispute arose following a fire at a heritage house unit within a condominium development regarding who had the right to control and conduct repairs to the damaged structure.

The unit owner sought an interlocutory and final injunction preventing the condominium corporation and insurer from proceeding with repairs and sought a declaration granting him exclusive authority over restoration.

The condominium corporation argued the declaration and condominium governance documents imposed the obligation to repair damage on the corporation and that the owner had failed to act within a reasonable time.

The court interpreted the condominium declaration and held the corporation had the right and obligation to carry out exterior and roof repairs to restore the property, while leaving interior renovation decisions to the unit owner.

The request for injunctive relief was denied and the corporation was authorized to proceed with exterior restoration.

The estate of a deceased shareholder brought a motion under Rule 59.06(2) of the Rules of Civil Procedure to vary a prior order requiring the deceased to purchase the other shareholder’s interest in a corporation owning a Hamilton property.

Following the shareholder’s death, the estate argued that the original premise of the order—his intention and ability to develop the property—could no longer be fulfilled.

The court held that the death constituted a new fact arising after the order that could not have been discovered with reasonable diligence.

Given that the estate lacked the capacity or intention to pursue development, the court varied the prior order and directed that the property be listed for sale on the open market.

Requests by the responding shareholders for historical costs and appraisal expenses were denied.

Respondents brought a motion under Rule 59.06(2)(a) and (d) of the Rules of Civil Procedure seeking to set aside a prior order requiring the purchase of one shareholder’s shares in a closely held corporation.

They argued that subsequent deterioration of a shareholder’s health, reduced developer interest in the company’s property, and litigation delay constituted new facts justifying the order’s reversal and instead requested a sale of the property and winding up of the company.

The court held that the alleged circumstances were not new facts arising after the order but risks that were known or reasonably foreseeable when the order was made.

The court further found that setting aside the order would not expedite resolution and that a subsequent order and appellate direction remained in force.

The motion was dismissed and the prior valuation process ordered by the Divisional Court was to proceed.

The appellant appealed an order dismissing his application.

The Court of Appeal dismissed the appeal, finding that the appellant was not an 'owner' as defined in the Condominium Act and therefore lacked standing to bring the application.

Costs of $3,000 were awarded to the respondents.

The plaintiffs moved for leave to appeal a decision refusing summary judgment in their favour regarding the ownership of shares in a Panama corporation.

The motion judge had concluded that a trial was necessary to determine whether the plaintiffs were entitled to 100% or 50% of the shares, as one of the plaintiffs had signed documents relinquishing 50% and the claim of duress lacked direct affidavit evidence.

The Divisional Court dismissed the motion for leave to appeal, finding no error in the motion judge's conclusion that a trial was required and noting that the issue did not raise questions of general or public importance.

The parties, former accounting partners, entered into an arbitration agreement to resolve a dispute over the final accounting for the winding-up of their partnership.

The respondent later commenced a court action regarding the same issues, arguing the arbitration agreement was invalid due to a lack of consensus ad idem.

The motion judge agreed and refused to stay the action.

On appeal, the Court of Appeal found the arbitration agreement was clear, unambiguous, and validly executed with the assistance of counsel.

The court held that none of the exceptions in s. 7(2) of the Arbitration Act applied, and therefore a stay of the court proceeding was mandatory under s. 7(1).

The appeal was allowed and the action stayed.

Following the release of reasons on October 19, 2002, the Court of Appeal received written submissions on costs.

The Court fixed the costs of the motions before the motions judge at $6,000 all inclusive, and the costs of both appeals at $6,500 all inclusive, payable to the appellants forthwith.

The appellant was injured in a motor vehicle accident.

In a prior arbitration for accident benefits, the arbitrator found the appellant was uninsured at the time of the accident.

The appellant subsequently brought an action against the tortfeasor for negligence and against his insurer for breach of contract and negligence.

The motions judge dismissed both actions on the basis of abuse of process and issue estoppel.

The Court of Appeal allowed the appeal, finding that the tort action was separate from the contractual dispute, and the negligence claim against the insurer raised different issues than those decided in the arbitration.

The appellant husband appealed a motion judge's finding that a binding settlement had been reached in a divorce proceeding.

The parties had exchanged correspondence regarding an equalization payment, the payment of the children's lawyer's fees, and the handling of life insurance policies.

The Court of Appeal upheld the motion judge's finding that the parties had reached a consensus ad idem on all essential terms, noting that the husband's self-serving affidavit did not raise a triable issue.

The appeal was dismissed with costs awarded to the respondent wife.

The appellant appealed a trial judgment dismissing her defamation action against a newspaper and its reporters.

The Court of Appeal upheld the trial judge's finding that a reasonable reader would interpret the article as reporting complaints rather than asserting the truth of the allegations.

The appeal was dismissed.

The appellants appealed a trial judgment awarding the respondent 6.5 months' notice for wrongful dismissal after 11 months of employment.

The appellants argued that the respondent's retention of $2,780 from a licensing fund constituted just cause for dismissal, that she had received prior notice of termination, and that the notice period was inordinately high.

The Court of Appeal dismissed the appeal, finding that the single act of retaining funds did not amount to just cause in context, that the prior events did not constitute legal notice, and that the notice period, while on the high side, was within the acceptable range given the respondent was induced to leave secure employment.