Robert William Trifts

The plaintiff, a private mortgage lender, brought a summary judgment motion against its title insurer for an additional $72,000 in losses arising from title fraud.

The dispute centered on whether the $72,000, representing prepaid interest withheld from the loan advance, constituted an "actual monetary loss" covered by the policy.

The defendant insurer argued it was not a loss as the funds were never advanced to the borrower.

The court, applying principles of insurance contract interpretation (broad coverage grant, narrow exclusions/limitations), found that the withholding of interest was an accounting set-off and the plaintiff's actual loss was the full principal amount less recoveries.

The court concluded that the $72,000 interest was part of the insured loss.

Summary judgment was granted to the plaintiff for $70,882.21, plus prejudgment interest and costs.

The defendant moved to discharge a Certificate of Pending Litigation (CPL) and a mortgage registered against several properties.

The CPL was obtained ex parte by the plaintiff, who claimed fraud, breach of fiduciary duty, and sought constructive/resulting trust remedies for funds invested in the defendant's property ventures.

The court found a triable issue regarding the plaintiff's claim to an interest in the properties.

While the defendant delayed bringing the motion and the plaintiff failed to disclose a material $100,000 payment on the ex parte motion, the court exercised its equitable discretion.

It ordered the CPL to remain on two properties (King and Fort Rouille) and the mortgage to remain on additional properties, but discharged the CPL and mortgage from Lakeshore, balancing the parties' rights and ensuring sufficient security for the plaintiff's claim.

The appellant appealed an order requiring him to execute a standard form mutual release with a "no claims over" clause, stemming from a 2017 settlement agreement.

The appellant argued procedural errors (motion under r. 49.09), limitation period expiry, and the overbreadth of the release form.

The Court of Appeal affirmed that while r. 49.09 was inapplicable, the motion was properly brought to enforce a settlement in an ongoing action, and no limitation period had expired as the claim arose when the appellant refused to sign.

However, the court found the motion judge erred in not prescribing the specific form of release.

The appeal was allowed in part, directing the appellant to sign a release including a "no claims over" clause but without an indemnity for its breach, and requiring the attachment of a specific undertaking.

The applicants brought a motion to oppose confirmation of an Assessment Officer's report, effectively appealing the assessment of unpaid legal fees owed to the respondent solicitor.

The applicants argued the Assessment Officer erred by including a second bill, failing to follow precedent regarding complexity, and misapprehending evidence about an earnout provision.

The Superior Court of Justice dismissed the application, finding the Assessment Officer properly followed a prior court order, correctly assessed the complexity of the share transaction, and reasonably concluded the applicants were the authors of their own misfortune regarding the earnout provision.

Costs of $12,500 were awarded to the respondent.

The defendants in a franchise dispute moved for security for costs against the plaintiffs, alleging the plaintiffs' parent companies were in financial difficulty.

The court dismissed the motion, finding the defendants failed to meet the initial threshold of showing the specific plaintiff corporations had insufficient assets.

Furthermore, the court declined to exercise its discretion to order security because the defendants' counterclaim was inextricably connected to the main action, and the motion was brought with undue delay shortly before trial.

The defendant, Ronald Flom, brought a motion to dismiss or stay the action of the corporate plaintiff, O Cannabis We Stand On Guard for Thee Corporation, for lack of authority, and to consolidate the plaintiffs' Ottawa action with his earlier Toronto action for fees.

The corporate plaintiff discontinued its action shortly before the hearing.

The court found significant overlap between the Ottawa and Toronto actions, arising from the same transaction, and ordered the Ottawa action stayed until the Toronto action's assessment hearing was determined, after which it would be consolidated as a counterclaim in Toronto.

The court also addressed costs, finding the plaintiffs and their counsel jointly and severally liable for substantial indemnity costs due to the unauthorized corporate action and the plaintiffs' failure to accept a reasonable offer to settle.

An appeal from a summary judgment motion dismissing a claim for breach of confidence.

The appellant, a pharmaceutical company, alleged that the respondent misused confidential information regarding a potential equipment manufacturer (HED International) that was disclosed during a due diligence period for a failed asset purchase agreement.

The motion judge dismissed the claim, finding no detriment to the appellant.

The appellate court upheld the dismissal, finding that although the motion judge's approach to detriment was overly narrow, the appellant suffered no detriment as a matter of fact because it was not ready to manufacture its products and could not have benefited from direct access to the equipment manufacturer.

This is a costs endorsement following an appeal from a Superior Court judgment.

The Court of Appeal invited the parties to make written submissions on costs after issuing reasons on May 23, 2019.

The parties were unable to reach agreement and submitted written arguments.

The Court awarded costs to the appellant against one of the respondents.

The appellant leased commercial premises from the respondent with a right to renew for five years.

The appellant sublet the premises to a third party without reserving the last day of the head lease term.

When the appellant attempted to exercise its renewal option, the respondent claimed the appellant had forfeited its rights through an assignment.

The application judge failed to resolve this central issue and instead found a breach of contract with no damages.

The Court of Appeal allowed the appeal, holding that section 3 of the Commercial Tenancies Act permits a sublease even without reserving the last day of the head lease term, provided there is sufficient evidence that the parties did not intend an assignment.

The sublease language clearly demonstrated the parties' intent to preserve the appellant's renewal rights.

The applicant, a former tenant, sought to enforce a lease renewal option and claim damages for breach of contract against the landlord and sub-tenant.

The court found that both the landlord and sub-tenant breached their duties of good faith and contractual obligations to the applicant regarding the renewal.

However, no monetary damages were awarded to the applicant because the fair market rent for the renewed term would have resulted in a break-even scenario.

The application for specific enforcement was denied, and the applicant was ordered to return a $10,000 deposit to the sub-tenant.

No costs were awarded due to the mixed outcome.

The plaintiff corporation brought a motion for leave to register a certificate of pending litigation on an adjacent commercial property.

The plaintiff alleged it had a binding agreement of purchase and sale with the defendant owner, which the defendant repudiated after the tenant purportedly exercised a right of first refusal.

The court found the plaintiff raised a triable issue regarding its interest in the unique adjacent land and granted the motion, ordering the plaintiff to pay its promised deposit into court.

The appellant was successful in an oppression action against the respondents.

The respondents had served an offer to settle nine calendar days before trial, which technically amounted to fewer than seven days under the Rules of Civil Procedure.

The trial judge treated the offer as a valid Rule 49 offer and awarded costs accordingly.

On appeal, the Court of Appeal held that the 'no near miss' policy applies to the timing requirement under rule 49.03, meaning the offer was not a valid Rule 49 offer.

However, the Court upheld the costs award, finding that the trial judge was entitled to take the offer into account under his residual discretion pursuant to rule 49.13.

The defendants sought costs following the plaintiff’s agreement to vacate certificates of pending litigation (CPLs) that had been obtained ex parte against their properties.

The court found that the plaintiff failed to make full and frank disclosure when obtaining the CPLs and that the defendants were therefore entitled to costs of the motion to vacate.

While the defendants requested full indemnity costs exceeding $74,000, the court held that the plaintiff’s conduct did not reach the egregious level required for full indemnity and instead justified substantial indemnity costs.

Applying the factors under Rule 57.01 and the indemnity principle, the court fixed reasonable fees at $35,000 plus HST and disbursements.

Costs were ordered payable within 30 days.

The plaintiff moved to strike a statement of defence and abuse of process counterclaim arising from a solicitor's negligence action against former criminal counsel concerning advice to enter a U.S. plea agreement.

The court held that the defence pleading was replete with evidence, argument, quotations, and scandalous character attacks contrary to the Rules of Civil Procedure, and struck it in its entirety with leave to amend.

The court declined to strike the abuse of process counterclaim under rule 21.01(1)(b), holding it was not plain and obvious the claim could not succeed where the plaintiff had arguably made his innocence and reputational vindication an unnecessary material issue in the negligence action.

Costs were ordered in the cause.

The moving parties sought leave to appeal a joint and several costs order of $247,566.14 made against them following the respondent's successful motion to appoint a receiver.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's decision to award costs jointly and severally, including against the individual moving party personally.

The court held that the motions judge properly exercised his discretion and that the stringent test for granting leave to appeal a costs order was not met.

Costs determination following a motion for injunctive relief relating to access to data and the payment of invoices between commercial parties.

The court considered the parties’ relative success at different stages of the proceedings.

The defendant succeeded on the initial hearing by requiring the plaintiff to comply with its payment obligations before obtaining equitable relief, while the plaintiff succeeded on the return of the motion by challenging the legitimacy of post-order invoices.

Given the divided success, the court declined to award costs to either party.

Following the appointment of a receiver over corporate defendants’ books and records in a commercial dispute involving alleged fraud and breach of agreements, the court determined the quantum of costs payable to the successful plaintiff.

The plaintiff sought partial indemnity costs exceeding $298,000, including substantial disbursements for forensic accounting services.

The defendants challenged the reasonableness of the fees and argued certain expert-related disbursements were not recoverable.

The court held that detailed cost outlines rather than docket production were sufficient, emphasized that costs must be fair and reasonable to the unsuccessful party under Rule 57.01(1), and confirmed that expert forensic accounting fees were recoverable.

Costs were fixed at $180,000 plus HST for fees and $67,566.14 for disbursements, payable jointly and severally by the defendants.

Following a trial where the plaintiff was awarded $250,000 in damages for oppression, the court determined the issues of prejudgment interest and costs.

The court rejected the plaintiff's expert calculation for prejudgment interest, instead applying the Courts of Justice Act rate from the date the cause of action arose.

The court awarded the plaintiff substantial indemnity costs, finding the defendants' conduct in taking excess compensation and deliberately withholding information to be egregious and reprehensible.

The defendants' Rule 49 offer did not apply because the judgment, which included substantial indemnity costs, was more favourable than the offer.

Costs were fixed at $413,000.

The plaintiff moved for the appointment of a receiver over the books and records of several corporate defendants following loans exceeding USD $111 million for casino and gaming ventures in Jamaica and the Dominican Republic.

The defendants failed to provide required financial reporting, access to records, and audited statements despite contractual obligations and prior court orders.

Evidence indicated possible fraudulent reporting, significant discrepancies in financial information, and unexplained diversion of approximately $50 million to related entities.

The court held that the defendants had repeatedly obstructed access to records and that the circumstances justified the equitable appointment of a receiver to secure and review corporate books and records.

The motion was granted.

In a shareholders’ dispute involving a corporation operating casinos abroad, the applicant sought interim injunctive relief against a trustee holding shares as bare trustee for the applicant and another beneficial owner.

The trustee refused to transfer the shares, asserting the beneficial owners were defaulting shareholders under a shareholders’ agreement and therefore could not exercise shareholder rights.

Applying the test in RJR-MacDonald Inc. v. Canada (A.G.), the court found a serious issue to be tried regarding whether the trustee breached fiduciary duties by asserting personal shareholder rights in conflict with his obligations as trustee.

The court also found risk of irreparable harm if the trustee continued acting as though the beneficial owners had no rights.

Interim orders were granted restraining the trustee from exercising rights attached to the trust shares and directing cooperation among the shareholders to maintain ordinary course operations pending the hearing of the application.