Roy Wise

This costs decision addresses the aftermath of a motion/application in which the applicants sought to convert an application to an action, amend parties, and obtain interim relief regarding property.

The court declined to fix costs for the entire application, limiting its award to the motion before it.

The Canadian Imperial Bank of Commerce (CIBC) was awarded partial indemnity costs, while no costs were awarded as between the applicants and the Quddus respondents due to mixed success.

The decision reviews the principles governing costs, including the principle of indemnity, reasonableness, and the impact of consent adjournments.

The applicants sought to convert an application to an action and amend their pleadings to include claims for misappropriation, a tracing order, a Certificate of Pending Litigation (CPL), punitive damages, and negligence against CIBC's lawyer.

The court granted the conversion to an action (by agreement) and allowed the claims for misappropriation and tracing, finding they arose from existing factual allegations.

However, the court denied adding Zinnatus Salam as a plaintiff due to duplicative proceedings, dismissed the motion for an immediate CPL (though allowed the claim to be pleaded), and rejected claims for punitive damages and negligence against CIBC's lawyer, deeming them new, statute-barred causes of action or lacking factual basis.

This motion for partial summary judgment concerned the interpretation of an Assignment Agreement for a residential property.

The core dispute was whether the defendants, as assignees, were required to repay the plaintiff, as assignor, the initial deposit of $174,685.29 that the plaintiff had paid to the builder.

The court applied principles of contractual interpretation, including reading the agreement as a whole and considering the objective intention of the parties.

It found a mathematical error in the payment schedule of the Assignment Agreement and concluded that the objective intention was for the defendants to repay the deposit as part of the total purchase price.

Partial summary judgment was granted to the plaintiff for the deposit amount, with a reference directed to determine any additional general damages.

The proposed intervenors, who are 40% shareholders of the respondent corporation, brought a motion for leave to intervene in applications concerning the management and interests of a residential property.

They alleged that a settlement reached by the respondent's representative was done without their required consent under a unanimous shareholders agreement.

The applicants objected based on the indoor management rule.

The court granted the motion to intervene, finding that the proposed intervenors had an interest in the proceeding and could be prejudiced by the outcome.

Counsel for the respondent in an estate dispute moved for a charging order and mortgage over the disputed property to secure unpaid and future legal fees.

The motion was brought mid-way through the proceeding, relying on s. 34 of the Solicitors Act and the court's inherent jurisdiction.

The court dismissed the motion, finding it premature because the property had not yet been 'recovered or preserved' through the solicitor's instrumentality, and there was insufficient evidence that the client was unable or unwilling to pay.

The court also declined to amend an existing preservation order to allow the registration of a mortgage, noting potential prejudice to the applicant's set-off claims.

Costs of $15,000 were awarded to the applicant, deferred until the final outcome of the application.

The parties sought a consent adjournment of a fixed trial date in a 19-year-old breach of contract action.

The parties had repeatedly failed to comply with court-ordered timetables for discoveries and expert reports.

The court expressed dismay at the inordinate delay and multiple breaches of court orders.

Although reluctant, the court granted the adjournment because the case was not ready for trial without expert reports, but set a peremptory trial date and a strict timetable for the remaining steps.

The plaintiff brought a motion for leave to amend its amended statement of claim in an action for outstanding sales commissions.

The defendants opposed the motion, arguing estoppel, expiry of limitation periods, and non-compensable prejudice.

The court granted the motion, finding no positive representation to support estoppel, that the amendments were particulars of existing claims rather than new causes of action, and that any prejudice regarding internal resources could be managed through a discovery plan.

Following a decision confirming a Master's Report with a minor variation and dismissing both the plaintiff's motion to oppose confirmation and the defendant's conditional opposition, both parties sought costs.

The plaintiff sought partial indemnity costs, while the defendant sought partial or substantial indemnity costs.

The court found that success was divided, as neither party achieved their primary aspirations on the motions.

Consequently, the court ordered that there be no order as to costs.

The plaintiff subcontractor and the defendant owner both brought motions opposing the confirmation of a Master's Report in a construction lien reference.

The Master had found that the subcontractor repudiated the contract by abandoning the project and was not entitled to further payment or extras, but found the subcontractor and general contractor jointly liable to the owner for delay damages.

The Superior Court confirmed the Master's Report in most respects, finding no palpable and overriding error in the Master's conclusions regarding repudiation and extras.

However, the court varied the Report to strike the award of delay damages against the subcontractor, as there was no contractual relationship between the subcontractor and the owner to support such a claim.

Following a six‑day trial in which the plaintiffs successfully recovered unpaid legal fees and defeated a counterclaim alleging solicitor’s negligence, the court determined the issue of costs.

The plaintiffs had obtained judgment for $90,454.81 and dismissal of the defendant’s counterclaim seeking over $428,000.

The court considered the discretionary framework under s. 131 of the Courts of Justice Act, Rules 49 and 57.01 of the Rules of Civil Procedure, and the effect of a prior Rule 49 offer to settle for $60,000.

Finding the plaintiffs were entirely successful and that their settlement offer was more favourable than the ultimate result, the court awarded partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

Costs were fixed in all‑inclusive amounts for both the main action and the counterclaim.

The appellant appealed a decision dismissing his claims.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the constitutional issues had already been decided.

The Court held that under the current Limitations Act, fiduciary claims are subject to limitation periods as they fall under 'claims pursued in court' pursuant to section 2(1).

However, the Court noted the appellant could still pursue a claim solely for declaratory relief, which is not subject to limitations under the Act.

The appellant appealed the decision of the Superior Court of Justice revoking his discharge from bankruptcy.

The appeal judge had admitted fresh evidence showing the appellant failed to disclose significant assets, and directed him to file a fresh statement of affairs.

The Court of Appeal upheld the decision, finding the failure to disclose significant assets was a serious omission justifying the revocation.

The respondents' cross-appeal on costs was also dismissed.

The appellants, who were self-represented at the time, appealed a master's order striking out their statement of defence for failing to comply with production orders.

On appeal, the Divisional Court admitted fresh evidence under the Palmer test, finding it provided context to the appellants' actions and showed they were not deliberately flouting court orders.

The court allowed the appeal, holding that the master denied the appellants procedural fairness by failing to explain the severe consequences of the motion, not inviting submissions on the specific issue of striking the defence, and ignoring a less drastic alternative proposed by the respondent's counsel.

A pre-hearing teleconference was held regarding a Notice of Proposal to revoke the liquor licence of 1728272 Ontario Inc. The Board granted party status to 1779145 Ontario Inc., an applicant for a liquor licence at the same premises, as an intervenor.

The Board also issued procedural directions regarding disclosure and the Licensee's representation.

The appellants appealed a trial judgment finding they made fraudulent misrepresentations inducing the respondents to purchase a restaurant business.

The trial judge ordered rescission, general damages, punitive damages, and substantial indemnity costs.

The Court of Appeal upheld the finding of fraudulent misrepresentation, rescission, and punitive damages.

However, the Court reduced the general damages by $70,000 due to a lack of evidence for a management fee claim.

The Court also reduced the costs award, holding that awarding substantial indemnity costs based on the same conduct that justified punitive damages amounted to double compensation.

The appellants appealed a decision of the commercial list judge, who concluded that the relief sought related to the internal governance of a Utah corporation.

The Court of Appeal agreed, holding that principles of comity dictate that Ontario courts will not issue orders regulating the internal affairs of a foreign corporation.

The appeal was dismissed, and the motion judge's costs award was upheld.

The moving party sought a review of an order by a single judge of the Court of Appeal dismissing a motion to extend the time for appealing.

The Court of Appeal dismissed the motion, finding that the single judge was correct and that the relief sought could and should have been raised during previous appeals to the court, which had already been dismissed.