Russell Leigh Youd

The court considered motions for costs personally against George Windsor, who commenced proceedings on behalf of Gilles Jozias Overtveld and Gi-Las Management and Maintenance Ltd. without proper authority.

The action was found to be duplicative, meritless, and a waste of resources.

The court fixed costs on a substantial indemnity basis against Mr. Windsor personally, disallowed him from charging legal fees to the plaintiffs, and set out the principles for awarding costs in such circumstances.

The applicant sought a Norwich order against two lawyers to obtain transactional information regarding real estate purchases and transfers involving a judgment debtor, in order to enforce a $369,072.61 judgment.

The respondents opposed the motion, arguing the applicant did not meet the test for a Norwich order and that the information was protected by solicitor-client privilege.

The court granted the Norwich order, finding that the applicant met the test and that the requested transactional information, such as the source of funds and true ownership of the properties, was not presumptively protected by solicitor-client privilege.

The court ordered the respondents to produce the non-privileged information and established a process for reviewing any specific claims of privilege.

The appellants appealed a motion judge's decision enforcing a settlement agreement.

The core issue was the interpretation of an email clause regarding the direction of share purchase monies, specifically whether the phrase 'Subject to any contrary direction by His Honour' allowed the motion judge to direct funds into court for creditors.

The Court of Appeal upheld the motion judge's interpretation, finding it was open to him based on the record.

The appellants' application to introduce fresh evidence was dismissed as irrelevant or already dealt with by the settlement terms.

The appeal was dismissed with costs.

The moving parties sought an extension of time to perfect a motion to review an order of a single judge of the Court of Appeal.

The underlying order refused to direct the Registrar to accept a notice of appeal from a Superior Court decision, on the basis that the Superior Court decision was interlocutory.

The Court of Appeal dismissed the motion for an extension of time, finding no arguable merit to the review motion because the underlying orders—refusing to remove counsel, refusing to appoint a receiver, and refusing to declare non-parties vexatious litigants—were all interlocutory and therefore not appealable to the Court of Appeal.

The plaintiffs alleged that the defendant, an officer of their corporation, fraudulently and without authorization registered two mortgages against their properties.

They also sued the lawyer who registered the mortgages for negligence and the mortgagees for relying on the mortgages despite alleged red flags.

The court dismissed the action, finding that the officer had actual authority to bind the corporation under its by-laws, the plaintiff was aware of and benefited from the mortgages as part of a scheme to avoid foreign creditors, the lawyer met the standard of care, and the mortgagees were protected by the indoor management rule and the Land Titles Act.

The appellant property manager appealed the dismissal of its summary judgment motion, arguing that the respondent condominium corporation's action for construction defects was a nullity because it failed to provide owners with notice under s. 23(2) of the Condominium Act, 1998 before issuing a notice of action.

The Court of Appeal dismissed the appeal, taking the rare step of overruling its own previous decision in Medhurst.

The Court held that applying the modern approach to statutory interpretation, non-compliance with the notice provision does not render an action a nullity, as doing so would undermine the consumer protection purpose of the Act and cause injustice to the condominium owners the provision was designed to protect.

The defendant property manager brought a motion for summary judgment to dismiss the plaintiff condominium corporation's action as a nullity.

The defendant argued that the plaintiff failed to comply with the notice requirements under s. 23(2) of the Condominium Act, 1998 before commencing the action.

The court dismissed the motion, finding that the action against the property manager for breach of contract and negligence was not the type of action caught by s. 23(1) of the Act, and therefore the notice requirements did not apply.

Furthermore, the court held that the action commenced with the filing of the Statement of Claim, not the Notice of Action, and that the plaintiff had provided sufficient notice to the owners prior to filing the Statement of Claim.

The court issued its third and final set of reasons following a hearing on June 27, 2018, confirming an interim ruling and addressing costs.

The court drew negative inferences against Greyslone Ltd., Belview Management Ltd., and Mr. Czerlau due to evasive conduct and lack of corporate authority, disallowing claims of privilege over solicitors' files.

It ordered all solicitors' files (Assuras, Lof, Brown) to be delivered to an Independent Supervising Solicitor for review and production of relevant documents to the plaintiff.

The court awarded substantial indemnity costs of $19,878.53 against Mr. Czerlau, Greyslone Ltd., and Belview Management Ltd. jointly and severally, and partial indemnity costs of $13,626.70 against Ms. Assuras, also jointly and severally with the others to that extent.

The plaintiff, Canadian National Railway Company (CN), brought a motion to compel the production of files and examination for discovery of three non-party lawyers: Mr. Brown, Mr. Lof, and Ms. Assuras.

The motion arose from a Mareva and Anton Pillar order and a subsequent summary judgment against Greyslone and Belview, which were found to have no legal status at the time of certain transactions and failed to account for $661,000.

Ms. Assuras, counsel for Greyslone and Belview, opposed the motion, asserting privilege, while Mr. Lof and Mr. Brown took no position.

The court found Mr. Czerlau's (who instructed Ms. Assuras) testimony to be evasive and misleading, and inferred that Greyslone and Belview were not acting at arm's length to Mr. Holmes, suggesting they were shams.

Consequently, the court proposed to draw negative inferences against Greyslone and Belview's bona fides, disallow claims of privilege, and ordered the production of the entire files of Ms. Assuras, Mr. Lof, and Mr. Brown to the plaintiff, subject to a 14-day period for further submissions.

During a negligence trial against their former lawyers, the plaintiffs attempted to lead evidence on claims not explicitly pleaded in their statement of claim, specifically concerning property at the "Holdway mill" and the promptness of pursuing those claims.

The defendants objected on grounds of relevance.

The court ruled that the statement of claim, as pleaded, did not encompass these additional claims and therefore precluded the plaintiffs from exploring these issues without an amendment to their pleadings.

The court emphasized the fundamental principle that a litigant must have notice of the case against them and clarified that raising an issue in a defence does not elevate it to a claim.

The self-represented moving party sought leave to appeal from two interlocutory orders that dismissed her motion regarding mandatory mediation and stayed her action pending payment of outstanding costs and mediator fees.

The moving party had previously failed to attend mediation and had multiple unpaid cost awards against her.

The Divisional Court denied her request for an adjournment and dismissed the motion for leave to appeal, finding she failed to establish either a conflicting decision or reason to doubt the correctness of the motion judge's orders under Rule 62.02(4).

The plaintiff, a mortgage lender, suffered a loss when a required postponement of a prior charge was not obtained, leaving it as a third mortgagee rather than a first mortgagee.

The title insurer acknowledged coverage and paid the bulk of the loss after the property was sold under power of sale.

The plaintiff sued to recover approximately $40,000 in disputed property maintenance expenses and legal fees incurred by its independently retained counsel, as well as a determination on the interest calculation.

The court reduced the claimed expenses and legal fees, finding that some costs lacked strict proof, involved personal benefit to the plaintiff's principal, and were unnecessary given the insurer's early concession of coverage.

The court also ruled that interest was to be calculated and compounded semi-annually.

The appellant cashed a bank draft for a mortgagor who turned out to be a fraudster.

The appellant sued the mortgagee and the solicitor who drew the draft.

The trial judge dismissed the claims.

On appeal, the appellant argued the trial judge erred in refusing to allow an amendment to the pleadings after closing arguments, and in failing to recognize a new duty of care owed by the solicitor to the appellant.

The Court of Appeal dismissed the appeal, finding no error in the discretionary refusal to amend pleadings and affirming that no new duty of care should be recognized in the context of bills of exchange.

The parties entered into an agreement where the respondent would solicit new customers for the appellant in exchange for a 5% commission.

After the appellant terminated the agreement, a dispute arose over whether commissions were owed for ongoing sales to customers brought in by the respondent.

The motion judge granted summary judgment to the respondent, finding the agreement required ongoing payments.

The Court of Appeal dismissed the appeal, upholding the motion judge's contractual interpretation, rejecting the defence of non est factum because the appellant failed to read the agreement, and finding no denial of procedural fairness regarding the appellant's equitable set-off claim.

The defendants moved to strike a second Superior Court action arising from a real estate transaction that had already generated a small claims proceeding, an earlier Superior Court action, and a settlement.

The plaintiff alleged deceit, conspiracy, bad faith conduct, and fraudulent or negligent misrepresentation in relation to the settlement, including against opposing counsel and insurance adjusters.

The court held the pleading contained a complete absence of material facts, failed to plead the constituent elements of the asserted torts, and impermissibly attempted a collateral attack on prior proceedings.

Although strict res judicata did not apply because the causes of action and parties were not identical, the action was found to be scandalous, frivolous, vexatious, and an abuse of process, and was struck without leave to amend.

Following the dismissal of the moving parties' motion for a rehearing of an appeal, the responding party sought costs on a partial indemnity basis in the amount of $13,094.

The moving parties argued no costs should be awarded as the motion raised a novel issue that clarified the law.

The Court of Appeal held that costs should follow the event and awarded the responding party costs fixed at $4,000 all inclusive.

The moving parties brought a motion for a re-hearing of an appeal, arguing that the Supreme Court of Canada's decision in Sattva Capital Corp. v. Creston Moly Corp., released shortly before the appeal decision, altered the applicable standard of review for contractual interpretation.

The Court of Appeal dismissed the motion, finding that the result of the appeal was not driven by the standard of review and would not have been different under the Sattva test, as the application judge's errors were extricable questions of law.

The appeal concerned interpretation of a land development agreement containing a purchase price adjustment clause tied to non-developable acreage and secured by a vendor take-back mortgage.

The application judge treated the fifth anniversary in the clause as a hard deadline, with time of the essence, and held the purchaser lost any right to a price reduction by failing to trigger the process by that date.

The Court of Appeal held that interpretation was commercially unreasonable and inconsistent with the agreement’s structure, the consultant-based determination mechanism, and the surrounding development context.

The fifth anniversary operated as an 'as of' valuation date for measuring non-developable land, not as a limitation-like deadline.

The appeal was allowed, the judgment below set aside, and the purchaser was declared entitled to a price reduction to be determined under the agreement.

A former corporate officer brought a motion for summary judgment or partial summary judgment seeking dismissal of claims in a counterclaim alleging participation in a fraudulent kickback scheme involving commission payments under a produce distribution program.

The moving party argued the claims were unsupported by evidence and barred by the limitation period.

The court held that the dispute involved a complex factual matrix intertwined with claims proceeding to trial against other parties and required credibility determinations not suitable for summary judgment.

The court also found an issue of discoverability regarding the limitation period.

Leave was granted to amend the counterclaim to add a claim for gross negligence, as the amendment was tenable and caused no uncompensable prejudice.

The plaintiff moved to set aside a default judgment granted on the defendant’s counterclaim and to withdraw deemed admissions arising from a failure to respond to a request to admit.

Applying the common law test for setting aside default judgment, the court considered whether the motion was brought promptly after discovery of the judgment, whether the default was adequately explained, and whether there was an arguable defence on the merits.

The court accepted that the moving party only became aware of the judgment years later and that counsel’s medical issues contributed to the failure to respond.

The court also emphasized the importance of civility between counsel, noting that notice of the intention to seek default could have avoided the situation.

Finding an arguable defence and limited prejudice to the responding party, the court set aside the default judgment and the deemed admissions.