Roger Alton Gosbee

The respondent, Asif Qadar, successfully moved to dismiss an application brought by Jose Zepeda.

Qadar argued Zepeda lacked legal capacity and improperly sought corporate remedies in a personal capacity, circumventing derivative action requirements under the Business Corporations Act.

The court found that most of the relief sought by Zepeda, despite being framed as oppression, was properly for the corporation, not Zepeda personally.

Consequently, the application was dismissed due to procedural impropriety and Zepeda's lack of capacity to pursue corporate claims in a personal action.

This is a costs endorsement from the Court of Appeal for Ontario.

Following an appeal, the court ordered the appellant to pay $17,500 in costs to the respondent.

The court also provided a general observation, encouraging counsel to attempt to agree on costs before the hearing to avoid unnecessary delay and additional expenses.

This is an appeal from a final order in matrimonial proceedings concerning equalization of net family property, child support, and other financial matters.

The appellant challenged the trial judge's findings on the date of separation, pre-marital assets, imputed income for child support, and post-separation expenses.

The respondent cross-appealed on s. 7 expenses.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the trial judge's factual findings, which were largely based on credibility assessments.

The cross-appeal was also dismissed, with the issue of s. 7 expenses referred back to the trial judge for resolution via a 14B motion.

The plaintiff, Diamond Drywall Contracting Inc., brought a motion to extend the time for serving its statement of claim, which was opposed by the defendants who also sought a declaration that the lien had expired and the action be dismissed due to non-service.

The court granted the plaintiff's motion, finding the explanation for the nine-month delay "borderline" but acceptable, particularly given the COVID-19 pandemic and the absence of actual prejudice to the defendants.

The defendants' motion was dismissed.

Despite losing on the substantive motions, the defendants were awarded $5,000 in partial indemnity costs, as the litigation was necessitated by the plaintiff's initial failure to serve the statement of claim within the statutory period.

The case addresses complex estate, property, and support issues arising from a three-way joint tenancy, an erroneous probate transfer, discoverability, and unpaid child support.

The plaintiff, Sui Sun Wong, abandoned his family and failed to pay child support, while the defendant, Mee Fong Wong, maintained the property.

The court found Sui's oral promise to transfer his property interest unenforceable but determined that Sui's transfer of his interest to his mother in trust severed his joint tenancy, leaving Mee and the mother as joint tenants.

Consequently, Mee inherited the mother's share upon her death.

The court also ruled that Mee's claims were not statute-barred due to fraudulent concealment and her vulnerability.

Mee was awarded unpaid child support arrears with compound interest, to be set off against Sui's share of the property sale proceeds, not exceeding his interest.

The plaintiff brought a motion for summary judgment seeking the return of $70,000 from a forfeited deposit, which was paid to the defendant realtor as commission.

The plaintiff alleged he was misled into signing a mutual release without proper legal advice, believing he was legally obliged to pay the commission despite the transaction's non-completion not being his fault.

The defendants asserted the payment was based on a subsequent verbal agreement providing consideration.

The court dismissed the motion for summary judgment, finding genuine issues of credibility regarding the plaintiff's receipt of legal advice, alleged misrepresentation, duress, and the existence of the verbal agreement, which necessitate a full trial.

The plaintiff commercial landlord sought summary judgment against an indemnifier for unpaid rent and charges under two commercial leases.

The court determined that the landlord's demand for a fee to consent to a change in corporate control, while unreasonable, did not release the indemnifier from their obligations.

The indemnifier was found liable for the tenant's obligations under both leases, subject to specific reductions in the landlord's claimed damages for historic, unbilled expenses.

The plaintiff, Jennifer Faber, sued First View Properties Inc. for breach of contract regarding defective brickwork on a new home.

The parties had previously reached a settlement under the Tarion New Home Warranty Program, which failed to materialize after the plaintiff served a Statement of Claim that had been issued but not disclosed during settlement negotiations.

The court found the plaintiff acted dishonestly by not disclosing the lawsuit.

While some minor deficiencies in the brickwork were acknowledged by the defendant's expert, the court rejected the plaintiff's claim for full rebricking and general damages, finding no evidence of significant inconvenience or diminution in property value.

The court awarded the plaintiff $4,000 for minor repairs, significantly less than the $100,000 sought.

An appeal from a Superior Court judgment was adjourned pending receipt of the trial transcript and Digital Court Recording.

The Court of Appeal determined that it could not properly hear the appeal without these materials and ordered the Registrar to obtain copies for the panel and parties.

The appeal was rescheduled for February 2, 2018, with supplementary factums to be filed by both parties.

The plaintiff successfully resisted the defendants' motion to set aside default judgment and sought costs on a full indemnity basis.

The defendants conceded the plaintiff's entitlement to costs but contested the scale.

The court found no evidence of conduct warranting full indemnity costs, which are reserved for exceptional circumstances.

However, considering the plaintiff's success, the voluminous and complex factual record, and the defendants' conduct in delaying and lengthening the process, the court awarded costs on a substantial indemnity basis.

The court adjusted the clerk's hourly rate from $180 to $100 and allowed two-thirds of the substantial indemnity fees claimed, along with disbursements.

The defendant owners (Ikram) brought a motion under section 47 of the Construction Lien Act to discharge a construction lien registered by the plaintiff (Diamond Drywall Contracting Inc.) for $201,253.00.

The Master clarified that motions under section 47 are akin to summary judgment motions, allowing the Master to exercise expanded powers to weigh evidence and make findings of fact, consistent with the principles from Hryniak v Mauldin.

The court found no genuine issue for trial regarding $193,569.00 of the lien, as the original contract work was deemed completed by June 15, 2015, and lien rights for that work had expired.

However, genuine issues of credibility and fact remained concerning whether Diamond performed work on specific dates in May 2016, amounting to $7,684.00, which required a trial.

Consequently, the lien was partially discharged, reduced to $7,684.00, and security of $9,605 (including costs) was ordered to be posted.

The larger claim was allowed to proceed as a contract claim, and costs of $10,000 were awarded to the defendant.

Following a family law trial addressing financial issues, the successful party sought costs after the court invited written submissions concerning the effect of settlement offers.

The court considered the impact of an informal offer to settle that did not strictly comply with Rule 18 of the Family Law Rules but remained open and was significantly exceeded by the judgment obtained at trial.

In determining costs under Rule 24, the court emphasized the complexity and importance of the issues, the reasonableness of the successful party’s conduct, and the opposing party’s failure to provide proper financial disclosure and inappropriate behaviour at trial.

The court held that the unsuccessful party’s conduct prolonged the proceedings and justified an enhanced level of costs.

Costs were awarded on a partial indemnity basis pre‑trial and enhanced costs for the trial itself.