Robert S. Choi

This endorsement addresses the issue of costs following a summary judgment motion where the plaintiffs were partially successful.

The court awarded summary judgment in favour of the plaintiffs for damages, but dismissed their claim for forfeiture of the purchaser's deposit, instead allowing a credit for the deposits paid.

The plaintiffs sought costs of $47,964.29, but the court, applying Rule 57.01 and Rule 49.10 of the Rules of Civil Procedure, reduced the award to $19,610.13, all-inclusive.

The reduction was based on the plaintiffs' divided success on the motion and their conduct affecting the length of the proceeding due to a lack of clarity in their financial submissions.

The plaintiffs, vendors of a residential property, brought a motion for summary judgment against the defendant purchaser for breach of an Agreement of Purchase and Sale.

The purchaser failed to close, citing frustration due to a decline in real estate values and inability to secure financing, despite having removed a financing condition from the agreement.

The court rejected the frustration argument, finding the events were foreseeable and did not radically alter the contract.

Summary judgment was granted in favour of the plaintiffs, awarding damages for loss of property value, financing costs, carrying costs, and legal fees thrown away, with the purchaser's deposit credited against the total damages.

The plaintiffs brought a motion to compel defendant Kwang Eui Chang to comply with a prior asset disclosure order and to impose a discovery plan.

The defendant argued the asset disclosure order had expired due to lack of proper service and opposed the discovery plan based on an anticipated security for costs motion.

The court found the prior order remained binding, dismissing the defendant's arguments regarding expiry and the delay of discovery.

A detailed discovery plan was imposed, including deadlines for affidavits of documents and scheduling examinations for discovery for all parties, with provisions for remote participation and interpreter costs.

The appellant mortgagee appointed a receiver over a mortgaged development property following the mortgagor's default.

The receiver sold the property and paid the mortgagee the full mortgage debt plus approximately $351,000 representing three months' additional interest, which the mortgagee claimed was due under a provision in the mortgage.

The mortgagor applied for a declaration that the mortgagee was not entitled to the three months' interest and sought an order requiring repayment.

The application judge granted the relief sought.

On appeal, the mortgagee argued the application judge erred in interpreting the three-month interest provision as mortgagor-centric rather than mortgagee-centric.

The Court of Appeal dismissed the appeal, holding that the provision only applied when the mortgagor sought to require the mortgagee to accept payment, and that the receiver, in discharging the mortgage as part of the realization process, was acting as the mortgagee's agent, not the mortgagor's agent.

The applicant was successful on the application and sought costs of $20,000 plus HST.

The respondent argued for reduced costs of $15,000 due to divided success, claiming the applicant abandoned some relief at the hearing.

The court found no evidence that the respondent incurred additional costs due to the abandoned relief.

The court awarded the applicant costs on a partial indemnity basis in the amount of $17,157.72, all inclusive.

The applicant mortgagor sought a declaration that the respondent mortgagee was not entitled to withhold a three-month interest charge of $351,000 following the sale of the secured property by a privately-appointed receiver.

The court held that section 17 of the Mortgages Act does not allow a mortgagee to claim three months' interest when realizing on security through a forced sale.

Furthermore, the specific terms of the mortgage did not grant the mortgagee the right to impose this charge upon realization.

The application was granted, and the respondent was ordered to account for and transfer the withheld funds to the applicant.

The plaintiff brought a summary judgment motion to recover alleged debt from the defendants based on a debt settlement agreement.

The defendants denied the contract or alleged breach by the plaintiff for failing to leave the ESL industry, and sought to amend their counterclaim to include this breach.

The court granted the defendants' motion to amend their counterclaim, finding it was not prejudicial and disclosed a reasonable cause of action.

The plaintiff's summary judgment motion was dismissed, as the issues in the main action and the amended counterclaim were inextricably intertwined, creating a genuine issue requiring a trial and raising the risk of inconsistent findings and inefficient use of judicial resources if heard separately.

The plaintiff brought a motion for summary judgment seeking specific performance of an agreement to lease a commercial property for a car dealership.

The defendant landlord argued the agreement was null and void due to the failure to waive certain conditions, including a solicitor review condition and a due diligence condition, within the stipulated timeframes.

The court found that the defendant, through its conduct and communications, had represented that it would not rely on its strict legal rights regarding the conditions, and the plaintiff had relied on these representations to its detriment.

Applying the doctrine of promissory estoppel, the court held the agreement was binding.

Finding the property to be unique for the plaintiff's intended use, the court granted summary judgment and ordered specific performance.

Following dismissal of a motion by a law firm seeking leave to withdraw from representation mid‑trial due to unpaid legal fees, the court determined the appropriate costs award.

The successful clients sought full indemnity costs while the law firm argued that no costs should be awarded or that any award should be partial indemnity with a set‑off against outstanding legal accounts.

The court held that the circumstances did not justify elevated costs and fixed costs on a partial indemnity basis.

However, applying equitable principles of set‑off, the court allowed the law firm to deduct the costs award from its unpaid legal account.

The moving party law firm sought permission to withdraw as counsel of record for the plaintiffs mid-trial due to non-payment of legal fees and an alleged breakdown of the solicitor-client relationship.

The clients opposed the motion, arguing that withdrawal would cause significant prejudice.

The court dismissed the motion, finding that despite a prior consent agreement, the court retained discretion to refuse withdrawal.

The court held that the clients would suffer serious prejudice as it was not feasible for them to self-represent in complex commercial litigation, they had already paid substantial fees, and the law firm held security on the clients' properties.

Following dismissal of two applications involving a dispute between dental professional corporations and issues arising from arbitration decisions and lease forfeiture, the court determined costs.

The applicant had sought leave to appeal arbitral decisions and relief from forfeiture of a lease but was unsuccessful.

The court applied Rule 57 and proportionality principles in fixing fair and reasonable costs rather than simply awarding actual costs incurred.

Partial indemnity costs were awarded to the respondent corporation for both applications, while the landlord respondent received substantial indemnity costs due to contractual indemnification provisions and the applicant’s conduct in unnecessarily involving the landlord.

Costs were fixed with reductions to claimed hours where the court found the time excessive.

The applicant sought an order under sections 4 and 11 of the Solicitors Act to refer a solicitor’s account for assessment more than twelve months after it had been rendered and paid.

The applicant argued that he only later became aware of the ability to challenge the account and that the account was excessive after reviewing time dockets.

The court held that the statutory deadline had expired and that the applicant failed to demonstrate “special circumstances” justifying an extension.

For paid accounts, the court emphasized that relief is limited to cases involving fraud or gross misconduct, which were not alleged or supported by the record.

The application was therefore dismissed.

Following a prior costs endorsement, self-represented respondents sought leave to file a reply and requested reconsideration of the court’s costs determination.

The underlying application sought a declaration regarding the validity of several leases and had been dismissed, resulting in success for the respondents.

The self-represented respondents argued they should receive compensation for time spent preparing and attending the proceeding.

Applying Rule 57.04(4) of the Rules of Civil Procedure and the principles in Fong v. Chan, the court held that costs for self-represented litigants are only appropriate where the work performed is equivalent to that ordinarily done by counsel.

The court found the respondents’ activities did not meet that threshold and declined to alter the previous costs award.