Robert Rueter

The defendants brought a motion for security for costs against the corporate plaintiff in an action arising from a commercial lease dispute.

The plaintiff conceded it had insufficient assets to pay a costs award but argued its claims had a good chance of success and its impoverishment was caused by the defendants' conduct.

The court found the merits could not be determined on an interlocutory basis due to disputed facts and credibility issues.

Applying a holistic approach, the court ordered the plaintiff to post security for costs in the amount of $30,000 for the corporate defendants and $15,000 for the real estate agent defendant, up to and including examinations for discovery.

The defendants brought a cross-motion under Rule 21.01(3)(b) of the Rules of Civil Procedure, seeking to dismiss the plaintiffs' action on the grounds that the plaintiffs lacked legal capacity to commence or continue the action.

The defendants argued that the loan funds were not advanced by Scott Dorey, that the Dorey Capital Family Trust (DCFT) had conveyed its rights to the funds to other entities, and that Ora Trustees Limited had not proven its trusteeship.

The plaintiffs disputed these claims, asserting that Scott Dorey was a proper party, that no valid transfer of receivables occurred, or that they were transferred back to DCFT, and provided evidence of Ora's trusteeship.

The court applied the "plain and obvious" test for Rule 21 motions, noting that such motions are not for resolving serious factual disputes or credibility issues.

Given the numerous disputed facts and credibility determinations required regarding the alleged transfers of the loan receivable and the chain of trusteeship, the court dismissed the defendants' motion.

This decision addresses the costs arising from a decade-long, four-action litigation where Romandale Farms Limited was the successful party.

Romandale sought substantial indemnity costs against Fram and Kerbel (and their associated entities).

The court found that Fram and Kerbel's conduct throughout the litigation was "reprehensible and deserving of sanction" including pursuing meritless claims for tactical reasons, making disingenuous arguments, and principals giving false evidence.

The court awarded Romandale substantial indemnity costs of $2,708,651.57, inclusive of fees and disbursements, payable jointly and severally by Fram and Kerbel, finding the amount fair and reasonable given the complexity, stakes, and the losing parties' conduct.

Multiple actions arising from a complex land development dispute involving co-ownership agreements for two farm properties in Markham.

Fram alleged Romandale breached the co-ownership agreements by entering into a conditional agreement to sell its interest to Kerbel.

Kerbel later entered into a settlement agreement with Fram to delay the closing of its purchase from Romandale for decades.

The court found that Romandale did not breach the co-ownership agreements.

Furthermore, the court held that Kerbel repudiated its agreement with Romandale by entering into the settlement agreement with Fram, which fundamentally altered the timeline for closing.

All claims by Fram and Kerbel against Romandale were dismissed, and Romandale was granted a declaration that its agreement with Kerbel was at an end.

The appellant, former CEO and chairman of Sino-Forest Corporation (SFC), appealed a trial judgment awarding damages of $2.627 billion plus $5 million in punitive damages for fraud and breach of fiduciary duty.

The appellant argued that the litigation trust lacked standing to pursue claims that overlapped with class actions, that the damages award created double recovery risks, and that the transfer of assets constituted an election barring the claim.

The Court of Appeal upheld the trial judgment, finding that the litigation trust held separate and distinct corporate causes of action from those of individual shareholders and noteholders in the class actions, that the damages award was properly calculated based on SFC's losses, and that no election doctrine applied.

The appellant appealed from orders of the Superior Court of Justice dismissing its action for delay and awarding costs to the respondents.

The action, commenced in 2005 for negligent engineering work on natural gas turbines, had been dormant since 2009 following a successful appeal of a summary judgment dismissal.

The respondents brought a motion under Rule 24.01 to dismiss for delay and recover costs.

The appellant argued that Rule 48.14, which mandates automatic dismissal of actions five or more years old without trial, should have applied without costs.

The Court of Appeal upheld the dismissal and costs award, finding that Rule 24.01 and Rule 48.14 operate concurrently with no hierarchy between them, and that the court retained jurisdiction to award costs under Rule 24.01 despite Rule 48.14's silence on costs.

An appeal from a motion judge's order rectifying a will to correct a drafting error.

The estate trustee sought to correct the will to reflect the deceased's intention to liquidate sufficient shares to provide two children with $1 million each.

The widow, who did not challenge the will and elected to take under it, appealed the rectification order and sought leave to appeal the costs disposition.

The Court of Appeal upheld the motion judge's decision, finding no error in principle and that the factual findings were amply supported by evidence.

Leave to appeal costs was denied.

Following the dismissal of the plaintiff's action for delay, the defendants sought costs on a substantial indemnity basis.

The plaintiff argued the defendants should not receive costs due to their delay in bringing the motion to dismiss.

The court held the defendants were entitled to costs, but only on a partial indemnity basis, as the plaintiff's conduct was not reprehensible, scandalous, or outrageous.

Given the lengthy delay and the fact that the judges who dealt with the merits had retired, the court found exceptional circumstances warranted referring the costs for assessment rather than fixing them.

The defendants brought a motion to dismiss the plaintiff's action for delay under Rule 24 of the Rules of Civil Procedure.

The action, which alleged negligent engineering in the construction of a cogeneration station, had been dormant for several years following a successful appeal by the plaintiff in 2009.

The court found the delay to be inordinate, inexcusable, and prejudicial to the defendants, as several potential witnesses were no longer available.

The court dismissed the action for delay and confirmed its authority to award costs, directing the parties to provide further submissions on the costs issue.

The appellant appealed an order confirming a worldwide Mareva injunction against him, arguing that an Ontario court cannot grant such an injunction when the defendant has no assets in the jurisdiction.

The Divisional Court dismissed the appeal, holding that the court's in personam jurisdiction allows it to grant a Mareva injunction even if the defendant has no assets in Ontario, provided it is just and convenient.

The court also upheld the motion judge's discretionary decision to accept an undertaking as to damages from a foreign corporate non-party.

The defendant, Allen Tak Yuen Chan, brought a motion to permit the liquidation and transfer of funds from Hong Kong bank accounts, frozen by a worldwide Mareva injunction, to pay for his legal fees and disbursements in defending the proceedings.

The plaintiff opposed, arguing the defendant had other available funds and was engaged in fraudulent conduct.

The court applied the four-factor test from *Canadian Imperial Bank of Commerce v. Credit Valley Institute of Business and Technology*, finding that the defendant had met the test for accessing non-proprietary assets to cover reasonable legal costs.

The motion was granted, subject to the Hong Kong Court's decision regarding its own non-dissipation order over the same funds.

On a motion to quash, the court held that orders granting leave to amend a statement of defence and adding a party defendant for limited purposes were interlocutory, not final.

The motion judge's discussion of res judicata and the Limitations Act, 2002 did not amount to a final determination of those issues on the merits, but only a preliminary assessment that the proposed defence was tenable under rule 26.01.

The court emphasized that appeals lie from orders, not reasons, and that the nature of the underlying motion governs the characterization of the order.

Because the litigation continued and no substantive right was finally determined, the Court of Appeal lacked jurisdiction.

The appeals were quashed and leave to appeal the costs award was refused.

The defendant sought leave to appeal an order dismissing his motion to set aside a worldwide Mareva injunction.

The injunction was originally granted ex parte in an action alleging the defendant perpetrated a massive fraud while CEO of Sino-Forest Corporation.

The Divisional Court denied leave on the issues of whether there was a prima facie case of fraud and risk of asset dissipation.

However, the court granted leave to appeal on three questions: whether an Ontario court can grant a Mareva injunction when the defendant has no assets in the jurisdiction, whether the undertaking as to damages provided by a non-party was sufficient, and whether that undertaking adequately protected the defendant's costs.

The appellants appealed from a motion judge's dismissal of their motion for summary judgment, which sought to dismiss the respondent's claims as statute-barred.

The motion judge had found that the respondent lacked standing to bring a fraudulent conveyance claim prior to the appointment of a receiver, and that the appellants had concealed facts necessary to support the claims.

The Court of Appeal dismissed the appeal, holding that the motion judge's findings on discoverability and concealment were supported by the evidence and entitled to deference.

In a securities class action arising from the collapse of a forestry company, the plaintiffs sought approximately $2.6 million in costs following certification and leave motions brought under the Class Proceedings Act, 1992 and the Securities Act.

Several defendants argued that costs should not be awarded because the plaintiffs had already recovered legal expenses through settlements with other defendants and because the claimed costs were excessive.

The court held that the plaintiffs were largely successful but not entirely successful due to an unresolved assignment issue affecting certain class members.

The court also ruled that disbursements could not be recovered again because they had already been indemnified through settlements.

Exercising its discretion, the court ordered a hybrid costs award: part payable immediately and part payable in the cause.

The defendant brought a motion for an interlocutory injunction alleging copyright infringement, but later abandoned it after receiving assurances from the plaintiff regarding a revised manuscript.

The plaintiff sought costs of the abandoned motion forthwith under Rule 37.09(3).

The court declined to award costs forthwith, finding that the defendant was justified in bringing the motion initially and that the trial judge would be in the best position to determine costs and assess what efforts were thrown away.

Costs of the abandoned motion were reserved to the trial judge, with no costs awarded for the costs motion itself.

The appellants, selling shareholders in a family business, appealed the dismissal of their action for breach of fiduciary duty and oppression against the non-selling shareholders and the corporation's professional advisors.

The trial judge had utilized a 'hybrid' trial model following a failed summary judgment motion.

The Court of Appeal dismissed the appeal, finding that the appellants were precluded from challenging the hybrid trial model as they had not appealed the initial trial management order.

Furthermore, the Court upheld the trial judge's finding that no fiduciary duty was owed during the share redemption negotiations, as the relationship between the parties was highly adversarial and marked by distrust.

The substantial indemnity costs award of nearly $2.5 million was also upheld.

The self‑represented plaintiff brought a motion under Rule 59.06 of the Rules of Civil Procedure seeking to set aside or vary a prior order dismissing his action against a professional regulatory body and requiring leave before bringing further steps.

He also sought ancillary relief including removal of a disciplinary notice from the regulator’s website and preservation and production of documents.

The court held that the plaintiff’s arguments improperly attempted to relitigate the merits of claims previously dismissed and that the proper avenue to challenge the earlier order was through the pending appeal.

The alleged “new evidence” relied upon had already been available and had previously been rejected as a basis to reopen related Small Claims Court proceedings.

The motion was dismissed and substantial indemnity costs were awarded due to repetitive and harassing litigation conduct.

The plaintiff, an artist, brought an action for copyright infringement against the defendant, another artist, alleging that the defendant's paintings of crumpled paper infringed the copyright in the plaintiff's 'Classical Series' of paintings.

The court found that while copyright subsisted in the plaintiff's individual paintings, it did not subsist in the series as a whole.

The court dismissed the action, concluding that the defendant's works were not substantial copies or colourable imitations of the plaintiff's works, as the similarities were based on commonplace artistic techniques.

Furthermore, the court found that the defendant had independently created his works using his own photographic models.

The applicant sought to lift a stay of proceedings contained in a receivership order to permit her to bring a bankruptcy application against the respondent arising from an unpaid divorce judgment exceeding $4 million.

The receivership had been established to enforce the judgment, and the receiver had commenced related recovery litigation alleging fraudulent transfers and dissipation of assets but declined to continue the action after failing to obtain a protective costs order.

The court held that when deciding whether to lift a stay in an insolvency context, the interests of all affected parties must be balanced.

The court found that denying relief would significantly prejudice the applicant by preventing continuation of the recovery action and potentially exposing claims to limitation defences, while the respondent and other defendants would suffer no meaningful prejudice.

Leave was therefore granted to bring a bankruptcy application and, if a bankruptcy order were made, to seek assignment of the recovery action under s. 38 of the Bankruptcy and Insolvency Act.