Ruzbeh Hosseini

The parties, equal shareholders and directors of two closely-held houseware liquidation companies, experienced a breakdown in their business relationship.

The applicant sought leave to bring derivative actions against the respondent for alleged self-dealing and breach of fiduciary duty, as well as an interlocutory injunction to remove him as a director.

The respondent brought cross-applications to wind up the companies, claiming the parties were deadlocked and had previously agreed to wind up the business.

The court granted leave for the derivative actions, finding a well-founded basis for the claims.

However, the court dismissed the request for an interlocutory injunction, finding no irreparable harm.

The court also declined to order a winding-up at this stage, directing that the cross-applications be tried together with the derivative and oppression actions, as viva voce evidence was required to resolve credibility issues and determine the appropriate remedy.

This costs endorsement followed a four-day trial where the defendant, 1882877 Ontario Inc., was found to be owed $22,366 after set-off against the plaintiff's (Ralph Mastracci c.o.b. as Bosco Roofing and Sheet Metal) claim.

The defendant sought partial indemnity costs of $37,050.

The plaintiff argued for no costs, citing a mixed result and the final monetary award falling within the Small Claims Court jurisdiction.

The court, exercising its discretion under the Courts of Justice Act and Rules of Civil Procedure, determined that despite the defendant's monetary success, the overall result was mixed and the actual payment modest.

The court ordered no costs payable, emphasizing that the parties should have pursued significant compromises or realistic settlement offers.

The applicant brought a motion for a finding of contempt against the respondent, an estate trustee.

The court dismissed the contempt motion, finding the respondent had made good faith efforts to comply with a previous order.

The court then considered costs, noting the respondent's offer to settle closely matched the decision.

The applicant was ordered to pay the respondent's partial and substantial indemnity costs, totaling $21,766.76.

The court declined to order the estate to pay the remainder of the respondent's full indemnity costs, citing some faults on the respondent's part, but primarily emphasizing the unnecessary nature of the applicant's motion.

This is a costs endorsement following a successful motion for an interlocutory injunction by Product Pro Industrial Supplies Inc. against Sheam Yee Wang and KTS Consulting (the "Wang Defendants").

Product Pro sought costs on a partial indemnity scale, or alternatively, substantial indemnity.

The court found that while Product Pro did not achieve all requested relief, it was substantially successful, warranting costs.

The court rejected the Wang Defendants' arguments against costs, including allegations of fraud and improper conduct by Product Pro's principal, finding these did not disqualify Product Pro from receiving costs.

The court fixed costs at $26,869.20 on a partial indemnity scale, inclusive of fees, disbursements, and HST, to be paid by the Wang Defendants within 30 days.

The plaintiff, Bosco Roofing, sued for payment for roofing work on a condominium building owned by 1882877 Ontario Inc. The defendant, 1882877 Ontario Inc., counterclaimed for damages due to poor workmanship and project delays.

The court found that Bosco's work constituted a fundamental breach of contract due to significant deficiencies, negating the need for 1882877 Ontario Inc. to provide an opportunity to correct.

While 1882877 Ontario Inc. destroyed evidence by applying a third membrane, the presumption of spoliation was rebutted by the urgency of the project and the expert report.

The delay claims by 1882877 Ontario Inc. were dismissed due to lack of evidence.

Ultimately, Bosco's claim was dismissed, and 1882877 Ontario Inc. was awarded $22,366 on its counterclaim, representing the additional cost incurred to achieve a proper roofing system.

The plaintiff, Product Pro Industrial Supplies Inc., moved for an interlocutory injunction against the defendants, Sheam Yee Wang and KTS Consulting, alleging breaches of fiduciary duties and unfair competition.

The court found a strong prima facie case that Wang owed fiduciary duties to Product Pro, noting his role as "Director of Operations" and contractual obligations.

Irreparable harm in the form of loss of goodwill and market share was established.

The court also found the balance of convenience favored granting the injunction, rejecting the "unclean hands" defense.

An interlocutory injunction was granted for 12 months, restraining the Wang Defendants from soliciting Product Pro's customers or potential customers contacted before March 21, 2019.

The appellant, a dermatological clinic, appealed the dismissal of its defamation action against a respondent who posted negative online reviews claiming the laser resurfacing treatments caused volume loss to her face.

The motion judge dismissed the action under section 137.1 of the Courts of Justice Act.

The Court of Appeal upheld the dismissal, finding that while the appellant met the threshold under section 137.1(4)(a)(ii) by showing a reasonable trier could view the respondent's claims as factual statements rather than protected opinion, the appellant failed to satisfy the balancing test under section 137.1(4)(b) by not establishing that the harm suffered was sufficiently serious to outweigh the public interest in protecting the respondent's expression.

Following the successful dismissal of the plaintiff's action under the anti-SLAPP provisions of the Courts of Justice Act, the defendant sought costs on a full indemnity basis.

The plaintiff argued for no costs or a reduced amount.

The court found no reason to depart from the presumptive entitlement to full indemnity costs under s. 137.1(7).

Costs were fixed at $20,000, inclusive of fees, disbursements, and HST.

This motion sought to correct the plaintiff's name to include a litigation guardian, Valerie Lummack by her litigation guardian Keith Lummack, due to Valerie's alleged mental incapacity.

The court reviewed conflicting expert evidence regarding Valerie's capacity to instruct counsel, noting discrepancies and the lack of accommodation for her communication deficits in the assessments.

The court emphasized the expert's duty to assist the court and directed the plaintiff's expert to conduct a further clinical interview with Valerie, specifically utilizing accommodations for her communication deficits, or provide reasons why such accommodations are unnecessary, within 30 days.

The defendants were granted leave to file a responding report.

The appellants appealed a summary judgment permitting the respondent to enforce a Delaware judgment, including an order for a constructive trust, against the corporate appellants in Ontario.

The appellants argued the motion judge failed to consider the impact of the constructive trust on third parties, thereby misapplying the Pro Swing factors.

The Court of Appeal dismissed the appeal, finding the motion judge was alive to potential third-party impacts and that any unfairness was entirely speculative on the record.

The plaintiff sued the defendants for damages arising from a shareholder dispute.

A motion judge granted partial summary judgment to the plaintiff for the defendants' breach of an interim agreement, ordering damages and costs.

When the defendants failed to pay, a second motion judge struck their statement of defence.

The defendants appealed both orders.

The Court of Appeal dismissed the appeal of the summary judgment, finding the defendants had consented to the procedure and the evidence supported the breach.

However, the Court allowed the appeal of the order striking the defence, holding that such a severe sanction was disproportionate and should not be a remedy of first resort, particularly where the defendants were misled by their former counsel.

Following a prior motion decision, the parties were unable to agree on costs and sought a determination from the court.

The defendants sought substantial indemnity costs, arguing the motion was vexatious and unnecessary, while the plaintiff sought partial indemnity costs and argued the motion was required to secure payment of outstanding costs awards and attendance for an examination in aid of execution.

The court held that success on a motion must be assessed by comparing the circumstances before and after the motion and whether the motion induced compliance.

The court found the motion was necessary to obtain payment of outstanding costs awards and to secure attendance for examination.

Partial indemnity costs were awarded to the plaintiff, reduced to reflect lack of success on one issue.

The plaintiffs obtained a judgment against the defendant in Belgium and subsequently sought to enforce it in Ontario after discovering the defendant had moved to Canada.

After the plaintiffs obtained summary judgment recognizing the foreign judgment, the defendant appealed, triggering an automatic stay of enforcement.

The plaintiffs brought a motion to lift the stay and for security for costs.

The Court of Appeal partially lifted the stay to allow the plaintiffs to examine the defendant in aid of execution, finding the appeal appeared frivolous and the plaintiffs had suffered hardship due to delay.

The motion for security for costs was dismissed as there was insufficient evidence that the defendant lacked assets in Ontario.

The successful plaintiffs brought a motion seeking payment of approximately $1 million held by the Accountant of the Superior Court of Justice to partially satisfy their judgment.

The defendant opposed the motion, arguing that his law firm was entitled to a priority charge on the funds for $825,000 in unpaid legal fees pursuant to s. 34(1) of the Solicitor's Act.

The Court of Appeal dismissed the defendant's arguments, finding that the funds were not preserved through the instrumentality of the law firm and that the equities overwhelmingly favoured the plaintiffs.

The motion was allowed and the funds were ordered released to the plaintiffs.

The successful defendants/appellants sought costs of $63,158 following an appeal that set aside an order and a certificate of pending litigation.

The Divisional Court found the requested amount excessive and fixed costs at $45,000 all-inclusive for the motion to set aside the certificate, the motion for leave to appeal, and the appeal itself.

The defendants appealed an interlocutory order dismissing their motion to set aside an ex parte order granting a certificate of pending litigation (CPL) to the plaintiff.

The Divisional Court allowed the appeal, finding that the motion judge erred in law by applying the wrong test for materiality regarding the plaintiff's failure to make full and fair disclosure on the ex parte motion.

The court held that under Rule 39.01(6), failure to disclose material facts—defined as facts that might reasonably affect the outcome of the motion—is in itself sufficient ground to set aside the order.

The appeal was allowed and the CPL was vacated.

The applicant brought a motion under the Evidence Act and Canada Evidence Act seeking orders related to a letter rogatory issued in litigation pending before a Utah court.

The motion requested substitution of a new applicant, EdiZONE LLC, and the addition of two individuals as respondents to the Ontario application.

The court held that the substitution of the applicant was unopposed and should be granted.

It further concluded that the presence of the proposed respondents was necessary to enable the application judge to adjudicate effectively and completely on the issues related to the letter rogatory request.

The motion to add the proposed respondents was therefore granted, while costs were reserved to the application judge.

Following an appeal from summary judgment decisions in two related actions involving fraudulent investment schemes, the Court of Appeal determined the costs of the motions and the appeals.

The court upheld the costs and Sanderson order in favour of the successful Mauldin group.

However, because the appellant successfully appealed the summary judgment in the Bruno action, the court set aside the costs and Sanderson order in favour of Bruno, reserving the motion costs to the trial judge and making Bruno liable for the co-defendants' costs.

Costs of the appeals were awarded on a partial indemnity scale.

These consolidated appeals addressed the interpretation and application of the amended summary judgment regime under Rule 20 of the Rules of Civil Procedure.

The Court of Appeal held that summary judgment may be granted not only where claims or defences are without merit or the parties agree, but also where the motion judge can achieve a full appreciation of the evidence and issues required to make dispositive findings on the motion record, possibly supplemented by limited oral evidence.

The court articulated the “full appreciation” test, confirmed that the standard of review on whether there is a genuine issue requiring a trial is correctness, and explained the proper use of the new powers to weigh evidence, evaluate credibility, draw inferences, and hear oral evidence on discrete issues.

Applying those principles, the court dismissed the Combined Air, Misek, and Parker appeals, dismissed the Mauldin appeal, and allowed the Bruno appeal by setting aside summary judgment and dismissing the motion.

The appellant, Robert Hryniak, brought a motion to extend the time to perfect his appeal from a summary judgment finding he defrauded the respondents.

The respondents opposed and brought cross-motions to lift the stay pending appeal and for security, citing concerns that the appellant was dissipating assets, specifically his matrimonial home.

The Court of Appeal analyzed the test for extending time, including a detailed review of the merits of the appeal concerning the newly amended Rule 20 summary judgment powers.

The Court granted the extension of time but, to prevent prejudice and asset dissipation, imposed strict terms requiring the appellant to post a $950,000 letter of credit and provide an undertaking not to encumber assets.

The respondents' cross-motions were dismissed.