Ruth E. Mesbur

Following a successful oppression action involving breach of fiduciary duty, enforceability of a property management agreement, and corporate share ownership, the plaintiff sought substantial indemnity costs relying in part on a Rule 49 settlement offer.

The defendants argued success at trial was divided and that no costs or reduced costs should be awarded.

The court found the plaintiff achieved substantial success, particularly on the oppression and fiduciary breach issues, and had effectively beaten portions of the Rule 49 offer.

The court held that substantial indemnity costs were appropriate for certain issues after the offer date and partial indemnity for others.

Considering proportionality and the absence of a competing bill of costs from the defendant, the court fixed total costs at $145,000 inclusive.

In child protection appeal proceedings, the society brought a motion seeking disclosure of the Office of the Children’s Lawyer’s clinical investigator notes, which the court held were protected by solicitor-client privilege and refused to disclose.

The motion was dismissed and the responding parties sought costs.

Although costs are not presumptively awarded against a children’s aid society under rule 24 of the Family Law Rules, the court exercised its discretion under s. 131 of the Courts of Justice Act.

The court found the society engaged in procedural misconduct by attempting to re‑litigate disclosure issues after previously withdrawing a similar motion, causing unnecessary expense to the opposing parties.

Exceptional circumstances justified a costs award against the society.

In a CCAA proceeding, the applicants challenged the reasonableness of legal fees charged by counsel to their secured lender after the applicants were required to pay those fees as part of the secured debt under an initial order.

The issue on this motion was whether the dispute over the reasonableness of the fees should be determined by an assessment officer through a solicitor-client assessment or by a judge of the Commercial List.

The court held that because the initial order made the fees part of the costs of the CCAA proceeding, jurisdiction properly lay with the Commercial List court absent exceptional circumstances.

The court emphasized the Commercial List’s expertise in supervising professional fees in insolvency matters and concerns about proportionality and efficiency if the matter proceeded through a lengthy assessment process.

The court ordered that the issue of the reasonableness of the fees be determined by a judge of the Commercial List following a case conference process to narrow the issues.

Following a nine‑day trial concerning whether corporate decisions favouring a chief executive officer were protected by the business judgment rule and whether the executive was entitled to severance benefits, the court found that the executive breached fiduciary duties but remained entitled to severance under his employment arrangements, subject to recalculation excluding benefits arising from the breach.

Both sides claimed substantial success and sought significant costs awards, including requests for substantial indemnity costs based on abandoned allegations and trial outcomes.

The court held that the litigation involved two principal issues—fiduciary breach and entitlement to severance—and each party succeeded on one of them.

Because success was effectively divided and no settlement offers were made, the court determined that neither party should recover costs.

Following a contract interpretation decision in which each party succeeded on different issues, the court considered submissions on costs.

The plaintiff succeeded on the issue of entitlement to the contractual interest rate, while the defendant succeeded on the issue of contractual setoff.

The plaintiff sought partial indemnity costs of approximately $94,000.

Applying principles governing divided success and referencing commentary from the Law of Costs, the court concluded that the parties were either equally successful or equally unsuccessful.

In the circumstances, the court declined to award costs to either party.

In a high-conflict parenting dispute, the responding parent brought a motion to change a final custody and access order, seeking sole custody and reduced parenting time for the other parent.

The moving parent sought a parallel parenting regime and expanded shared parenting time, including an altered summer schedule.

The court ordered a custody and access assessment pursuant to s. 30 of the Children’s Law Reform Act, finding that significant parental conflict, allegations of parental alienation, and concerns regarding each parent’s insight into the child’s needs warranted expert evaluation.

The court also clarified that the moving parent would be responsible for transportation for parenting time and partially modified the summer parenting schedule to allow extended time with the child.

The moving parent’s request for costs thrown away relating to a proposed contempt motion was dismissed.

The court heard multiple interim motions in a family law dispute between unmarried parents concerning temporary child support, spousal support, section 7 expenses, school selection, parenting time, and a request for a custody assessment.

The court fixed child support based on the father's estimated 2013 income and ordered interim spousal support within the Spousal Support Advisory Guidelines range, while allocating section 7 expenses proportionately.

The court permitted the child to attend the school selected by the mother and ordered a modest increase in the father’s parenting time consistent with recommendations from the parties’ mediator.

The father's motion for a custody assessment under s. 30 of the Children’s Law Reform Act was dismissed, as the parties had already agreed to obtain expert input from their mediator if necessary.

Costs were denied on the basis that success on the motions was divided.

The applicant sought leave to appeal an arbitrator’s decision finding that a terminating event under a separation agreement had occurred and ordering repayment of spousal support previously paid.

Under s. 45(1) of the Arbitration Act, 1991, leave to appeal is available only on questions of law.

The applicant alleged errors relating to contract interpretation, admissibility of evidence, and bias, but failed to particularize any specific legal errors or provide evidentiary support.

The court held that the central issue—whether the applicant was living in a relationship resembling marriage—required applying facts to a legal test and therefore constituted a question of mixed fact and law.

Because leave may only be granted for pure questions of law, the motion for leave to appeal was dismissed.

In a child protection appeal, the moving party sought disclosure of the Office of the Children’s Lawyer’s clinical investigator notes and records relating to a child represented by counsel.

The request was brought under s. 74 of the Child and Family Services Act after the Office of the Children’s Lawyer filed affidavits in support of a motion to admit fresh evidence on appeal.

The court held that communications between the child, counsel, and the clinical investigator assisting counsel formed part of the solicitor‑client relationship and were protected by solicitor‑client privilege.

The privilege belonged to the child and could not be waived by other parties.

The court further found that compelling disclosure would undermine the confidentiality essential to effective child representation and would also amount to an abuse of process given earlier opportunities to seek the material.

The respondents brought a motion to stay an oppression application commenced by a significant noteholder under a corporate debt indenture.

They argued that a “no action” clause in the indenture barred the proceeding unless procedural preconditions were satisfied, including notice to the trustee and trustee enforcement.

The court held that although no‑action clauses are often interpreted broadly, their scope depends on the wording of the indenture and the trustee’s contractual powers.

Because the trustee’s enforcement authority under the indenture was limited to pursuing payment defaults, it did not extend to bringing oppression proceedings.

The applicant’s oppression claim was therefore not captured by the clause and the motion to stay was dismissed.

A secured creditor applied for the appointment of a receiver over a resort property following repeated defaults under loan agreements secured by mortgages and general security agreements.

A second mortgagee opposed the application, proposing to cure arrears under the first mortgage pursuant to s. 22 of the Mortgages Act and conduct a power of sale instead.

The court considered whether the appointment of a receiver under s. 101 of the Courts of Justice Act and s. 243(1) of the Bankruptcy and Insolvency Act was “just or convenient.” Given ongoing defaults, competing creditor interests, tax arrears, and disputes regarding the marketing and sale process, the court concluded that a court-supervised receivership would better protect the interests of all stakeholders.

The application was granted and a receiver appointed, subject to a reduced borrowing limit.

The applicant sought leave under s. 45(1) of the Arbitration Act, 1991 to appeal an arbitrator’s award arising from a construction dispute between an owner and a general contractor.

The arbitration concerned liability for additional costs incurred by a subcontractor performing earthworks and other invoiced work after anticipated soil disposal arrangements failed.

The applicant argued the arbitrator committed errors of law in interpreting the construction contracts, calculating damages, and failing to consider legal doctrines such as waiver of condition and issue estoppel.

The court held that the proposed grounds of appeal raised pure questions of law, including the proper interpretation of contractual provisions and the application of legal principles governing damages.

Leave to appeal the arbitration award was therefore granted.

The defendants moved to set aside ex parte Anton Piller orders and Mareva injunctions obtained by the plaintiff in a fraud action involving alleged misappropriation of corporate funds and improper commissions.

The court reviewed the strict legal requirements for such extraordinary remedies and emphasized the obligation of full, fair, and frank disclosure on without‑notice motions.

It found the plaintiff failed to disclose material facts, including ongoing communications with certain defendants, repayment negotiations, employment relationships, and other contextual facts that could have influenced the original decision.

The court also found insufficient evidence that certain defendants possessed incriminating documents or posed a real risk of asset dissipation.

As a result, the Anton Piller orders and Mareva injunctions were set aside against all defendants.

A related motion by one defendant to strike portions of the statement of claim was dismissed.

Following a family law trial involving property division and claims for retroactive child and spousal support, both parties sought costs and asserted that they were the more successful party.

The court found that the applicant achieved greater success on the property issues, particularly as much of the respondent’s evidence on those matters was rejected.

However, the respondent was more successful regarding retroactive child and spousal support.

Neither party beat their respective settlement offers and the court concluded that overall success was divided.

As a result, the court declined to award costs.

A shareholder holding more than 5% of a corporation’s voting shares requisitioned a special meeting under the Canada Business Corporations Act seeking to replace the entire board of directors.

The board scheduled the requisitioned meeting to occur together with the corporation’s annual general meeting approximately 155 days after the requisition was delivered.

The applicant sought a court order under s. 144 of the CBCA requiring the meeting to occur sooner, arguing the delay was unreasonable and intended to frustrate shareholder rights.

The court held that the timing of the meeting fell within the board’s reasonable business judgment, noting legitimate concerns about costs, management resources, shareholder participation, and the desirability of combining the special meeting with the AGM.

Finding no improper purpose and no demonstrated prejudice to the shareholder, the court declined to interfere with the board’s decision.

Following a family law trial concerning property division and spousal support, the court addressed the issue of costs.

The applicant sought full recovery costs exceeding $123,000 plus expert fees, while the respondent argued that success was divided and no costs should be awarded.

The court found that although the applicant was unsuccessful on spousal support, she achieved success on the primary property issues at trial.

Applying proportionality and partial indemnity principles, the court reduced the claimed fees and declined to award full recovery costs.

Costs were fixed for fees, disbursements, and a reduced contribution toward expert expenses.

The trustee in bankruptcy sought advice and directions regarding multiple proofs of claim filed against the bankrupt estate.

The trustee had disallowed claims filed by several entities and argued that the claimants failed to properly appeal the disallowances within the 30‑day period required by the Bankruptcy and Insolvency Act.

The court held that because the appeals were not filed with the court within the statutory time frame, the trustee’s disallowances were final and conclusive.

A subsequent proof of claim filed for the aggregate amount of the disallowed claims was found to be essentially the same claim and constituted an abuse of process, engaging principles of res judicata and issue estoppel.

The court expunged all claims and barred the entities and their affiliates from filing further claims in the estate.

The appellant father appealed a child support order made at a case conference in the Ontario Court of Justice that imposed final child support based on imputed income.

The appellate court considered whether the case conference judge had jurisdiction under the Family Law Rules to make a final order where the responding party had notice only of a request for a temporary order.

While the father had failed to comply with disclosure orders and provided inconsistent financial information, the court held that the case conference judge exceeded jurisdiction by making a final order far beyond the relief requested in the conference brief.

The proper order was limited to the temporary child support amount sought in the brief.

The final order was therefore set aside and replaced with a temporary order pending further proceedings.

The appellant appealed a supplementary family arbitration award concerning child support income calculations and spousal support.

She argued the arbitrator erred by using a formula to determine income rather than strictly applying the Federal Child Support Guidelines, by declining to apply the Spousal Support Advisory Guidelines, and by providing insufficient reasons for the spousal support amount and commencement date.

The court held the arbitrator did not err in maintaining the previously ordered income-calculation formula, noting the appellant had originally requested that approach and did not appeal the earlier award.

The court also found no error in declining to apply the Spousal Support Advisory Guidelines given the parties’ agreement, the high income involved, and the atypical circumstances.

Applying the standard of review for arbitral awards, the court concluded there was no palpable and overriding error and that the reasons were adequate when read together with the earlier award.

Following a four-day family law trial involving divorce, the validity of a marriage contract, equalization, and spousal support, the court addressed costs.

The respondent had succeeded in setting aside the marriage contract and obtaining both equalization and spousal support, though she failed on claims for damages and to set aside a conveyance of property to the applicant’s sons.

The court rejected both parties’ submissions that substantial indemnity costs were warranted, finding neither the alleged disclosure issues nor purported fraud allegations justified such an award.

Applying partial indemnity principles and considering the respondent’s greater success on the major issues, the court fixed costs in her favour but reduced them to reflect partial success.