Robert Nestor Kostyniuk

This decision concerns the allocation of costs and prejudgment interest following a construction lien action.

The court awarded partial indemnity costs to the plaintiff, Zagros Homes Development Inc., against Cando 1 Construction Inc., and substantial indemnity costs to the Owners (Ernest Mbenkum and Alliance Lipenja) against both Zagros and Cando.

The court also exercised its discretion to award prejudgment interest at 2.5% per annum, higher than the statutory rate, due to market conditions.

The decision clarifies the approach to costs where parties have not succeeded against all defendants and addresses the application of prejudgment interest rates in the post-pandemic context.

The applicant, Douglas LaFramboise, sought to set aside a prior trial decision on the basis of alleged perjury and fraud by the respondent, Sylvia Zwaan, and her counsel.

The court found no new evidence or grounds to support the application, noting that the issues had already been litigated and dismissed at both the trial and appellate levels.

The motion was dismissed as an abuse of process, and costs were awarded to the respondent.

The court considered a claim for lien and breach of contract by Zagros Homes Development Inc. against the owners and construction manager/general contractor of a residential construction project.

The court found that Zagros had a valid subcontract with Cando 1 Construction Inc., that Cando breached the contract by terminating it and hiring the sub-subcontractor directly, and that Zagros was entitled to damages for unpaid work.

However, the court found that Zagros failed to prove the timeliness of its lien claim, and thus the lien was declared expired and vacated.

This is an appeal from a trial judge's finding of unlawful conversion and an award of punitive damages against the appellant, a lawyer, who intentionally deposited the respondent's insurance cheque into his personal bank account without authority.

The appellant sought to introduce fresh evidence (bank statements) on appeal to challenge the trial judge's findings regarding mortgage payments, but the motion was dismissed as the evidence failed the reasonable diligence test and would not have been conclusive.

The Court of Appeal upheld the trial judge's findings of fact and credibility, dismissing the appeal and affirming the finding of unlawful conversion and the award of damages.

This is a costs endorsement following a decision where the appeal was allowed in part and the cross-appeal was also allowed.

The appellant Estate succeeded against one of three respondents, while respondent D.O. was completely successful on the cross-appeal, though one aspect was conceded and the other involved a lesser amount.

Given the divided success, the Court of Appeal ordered that each party bear their own costs of the appeal and cross-appeal.

This appeal and cross-appeal arose from a matrimonial dispute concerning financial advances and child support.

The Estate of T.O. (husband) appealed the trial judge's dismissal of a claim for $341,000 in advances to Ridgeway (a corporation indirectly owned by D.O., the wife), arguing the limitation period was misapplied.

D.O. cross-appealed the finding of her liability for a $40,346 advance made by the husband's corporation and a child support calculation error.

The Court of Appeal allowed the Estate's appeal against Ridgeway, finding the 2013 advances were demand loans and thus not statute-barred.

It dismissed the appeal against D.O. and 201.

The cross-appeal was allowed, setting aside D.O.'s liability for the $40,346 advance (as the creditor was a non-party corporation) and correcting the child support calculation.

The Estate Trustee of T.O. brought a motion to amend a notice of appeal to add two corporations, The Ridgeway Education Rec Centre Ltd. and 2012023 Ontario Limited, as respondents.

The original appeal, initiated by T.O. before his death, sought repayment of loans from these corporations, but the notice of appeal inadvertently named only D.O. as the respondent.

The Court of Appeal granted the motion, applying the five-factor test for amending a notice of appeal after perfection.

The court found that the appellant had the requisite intention to appeal against the corporations, the delay was due to counsel's inadvertence and promptly addressed, there was no relevant prejudice to the respondents (who shared counsel and were aware of the claim), the appeal had arguable merit regarding the Limitations Act, and the justice of the case favored determining the matter on its merits.

The plaintiff, Sylvia Zwaan, brought an action seeking the return of $36,200, alleging the defendant Douglas Laframboise unlawfully converted a cheque belonging to her by depositing it into his personal account.

She also sought general and punitive damages.

The defendants admitted the deposit but denied unlawful conversion.

The court found Laframboise unlawfully converted the funds by depositing the cheque into his personal account without authorization and later denying knowledge of its whereabouts.

The court awarded the plaintiff the $36,200 plus pre-judgment interest and $50,000 in punitive damages, dismissing the claim against DDH Law Firm.

The appellant moved to amend the notice of appeal to clarify that relief is sought against two corporations added as parties below.

The respondent opposed due to late notice.

The Court of Appeal adjourned the appeal and cross-appeal, ordering the motion to amend to be heard in writing with a set schedule for submissions.

Costs were reserved to the disposition of the motion, and the panel remained seized of the motion but not the main appeal.

The appellant, Douglas Laframboise, appealed an interlocutory order.

The Court of Appeal for Ontario determined that the order was interlocutory and therefore, there was no right of appeal to that court.

The appeal was quashed for want of jurisdiction, and costs were awarded to the respondent, Sylvia Zwaan.

The plaintiff sought pre-judgment interest under the Courts of Justice Act following a judgment and costs decision.

The defendants opposed, arguing that awarding pre-judgment interest would run counter to the purposes of insurance and that the plaintiff did not suffer a loss of money, only lost chattels.

The court rejected the defendants' arguments, finding no principled or legal basis to deny pre-judgment interest on contractual insurance payments.

The court reasoned that interest accounts for the time delay in payment, prevents insurers from benefiting from delayed payouts, and is consistent with the Insurance Act's payment timelines.

The plaintiff was awarded $2,531.72 in pre-judgment interest.

The appellants appealed from a motion judge's order finding that a settlement had been reached between the parties based on the appellants' letter of acceptance dated June 15, 2017.

The motion judge rejected the appellants' argument that the respondent's subsequent letter of June 19, 2017 constituted a repudiation of the acceptance, finding that the June 19 letter erroneously referred to a different offer from May 2017 rather than the November 2016 offer that had been accepted.

The appellants also sought leave to appeal the costs award of $14,428.14.

The Court of Appeal found no error in the motion judge's findings or discretionary decision regarding costs and dismissed the appeal with costs awarded to the respondent.

The plaintiffs, Allan and Lorraine D’Souza, sued Home Depot of Canada Inc. and HD Roofing Inc. for misrepresentation, breach of contract, and negligence related to a deficient roof replacement.

They sought general, aggravated, punitive damages, and income loss.

The court found no misrepresentation or breach of contract regarding the warranty or skylight.

While the roofing job was negligent and exacerbated a pre-existing skylight leak, the majority of claimed damages were not causally linked to the negligence or constituted betterment.

The D'Souzas failed to mitigate their damages by refusing Home Depot's repeated offers to repair the deficiencies.

The court awarded limited damages totaling $5,772.38 for specific items, including a portion of ceiling damage, wet insulation, emergency repairs, and a portion of aspenite board replacement.

All other claims were dismissed.

This costs endorsement addresses the costs of a successful motion by the Respondent, Nancy Spencer, to set aside a default judgment obtained by the Applicant, Quirino Pescarino.

Ms. Spencer sought costs on a full recovery basis, relying on her success and two unaccepted offers to settle.

Mr. Pescarino claimed his costs of the motion and wasted costs of the proceeding.

The court found Ms. Spencer entitled to her costs on a full recovery basis due to Mr. Pescarino's unreasonable refusal of her settlement offers and his failure to establish her unreasonable conduct.

Mr. Pescarino's claim for wasted costs was dismissed without prejudice to claim them at trial.

The parties, involved in family litigation for over a decade, resolved all issues except costs through minutes of settlement.

The Applicant sought full indemnity costs of $141,489.86, citing the Respondent's non-compliance with disclosure orders, delays due to frequent counsel changes, and failure to pay previous cost awards.

The Respondent sought substantial indemnity costs of $18,590.76, arguing he was more successful on property valuation and income, and that his settlement offers were reasonable.

The court found the Respondent's conduct unreasonable, particularly regarding disclosure and unpaid costs, but rejected the Applicant's claim of bad faith.

Considering the mutual compromise in settlement and the excessive amount claimed by the Applicant, the court awarded the Applicant $40,000.00 in costs, inclusive of HST and disbursements, in addition to previously unpaid awards.

Following the breakdown of a common-law relationship, the applicant sought compensation relating to property and financial contributions during the relationship.

The court considered claims including unjust enrichment arising from profits on the sale of a chalet built during the relationship, reimbursement for repairs and completion of a drive shed, and claims relating to occupation rent and property maintenance after separation.

Applying the joint family venture analysis from Kerr v. Baranow, the court found the parties engaged in a joint enterprise and that the respondent would be unjustly enriched if the applicant did not share in the chalet profit.

The court also found an agreement that the respondent would construct the drive shed and ordered reimbursement for completion costs.

Claims relating to occupation rent and maintenance expenses were dismissed as offsetting each other.

In a family law dispute involving international connections, the respondent husband moved to stay the Ontario proceeding and transfer jurisdiction to France, arguing that the parties were French nationals, had signed a marriage contract referencing French law, and that a divorce proceeding had already commenced in France.

The court held that a prior consent order declaring Ontario to be the appropriate jurisdiction operated as res judicata and was not temporary.

The husband’s attempt to revisit jurisdiction was rejected, particularly in light of his repeated breaches of court orders and failures to provide disclosure.

The court dismissed the jurisdiction motion, ordered that the French proceeding be withdrawn, and directed that proceeds from the sale of the matrimonial home be placed in trust due to concerns about the husband’s non-compliance with prior orders.