Sarah Lyndsey Bittman

This costs endorsement followed grouped appeals concerning a wind-up order.

The appeals brought by Mark Libfeld and Corey Libfeld regarding the exclusion of the Shanontown transaction were unsuccessful.

The appeals brought by Jay Libfeld and Sheldon Libfeld concerning a procedural provision in the wind-up order were successful.

Consequently, Jay Libfeld and Sheldon Libfeld were entitled to costs from Mark Libfeld and Corey Libfeld.

The court found the amounts sought by Jay and Sheldon to be excessive due to duplication of materials and disproportionality to the necessary work for the appeals, and ordered a reduced costs schedule.

The appellant, Venmar Ventilation Inc., appealed a trial judgment finding it liable for negligent design after a ventilator motor caught fire and destroyed the respondents' home.

The trial judge found Venmar liable for failing to incorporate adequate thermal protection in its ventilator design, but dismissed claims against the motor manufacturer, Fasco, finding it owed no duty of care and was contractually indemnified by Venmar.

The Court of Appeal upheld the trial judge's findings on liability, negligent design, and contractual indemnity.

However, the Court allowed Fasco's cross-appeal on costs, finding the trial judge erred by failing to consider the contractual indemnity provision when assessing the scale and quantum of costs, and remitted the costs issue back to the trial judge.

Four brothers who equally owned a complex real estate development partnership experienced a complete breakdown in their business relationship, leading to a court-ordered wind-up and sale of the business.

Two brothers appealed the trial judge's decision to exclude a specific real estate transaction from the wind-up order, arguing breach of fiduciary duty.

The other two brothers appealed a provision in the judgment requiring them to certify compliance with the wind-up and disclosure orders.

The Court of Appeal dismissed the appeals regarding the excluded transaction, deferring to the trial judge's factual findings that it was conducted outside the partnership.

However, the Court allowed the appeal regarding the certification provision, striking it on the basis that requiring certification of vague obligations in a highly hostile environment would unfairly expose the parties to unwarranted contempt proceedings.

The appellants, a group of subcontractors and a bank, appealed an application judge's decision that rescission of surety bonds might be possible even if it affects innocent third parties.

The bonds were issued by Zurich Insurance Company Ltd. for a large construction project, but Zurich later discovered alleged fraudulent misrepresentations and collusion that induced it to issue the bonds.

The appellants sought a declaration that rescission was unavailable as a matter of law due to the involvement of innocent third parties.

The Court of Appeal dismissed the appeal, affirming that prejudice to third parties is not an absolute bar to rescission, especially in cases of fraudulent misrepresentation, and that such a determination requires a full factual record at trial.

Staff of the Ontario Securities Commission alleged that Stableview Asset Management Inc. and Colin Fisher contravened the Securities Act by making untrue statements to clients, disregarding investment parameters, and failing to disclose conflicts of interest.

The parties submitted a settlement agreement for approval.

The Capital Markets Tribunal approved the settlement, finding it in the public interest.

Colin Fisher was ordered to pay a $750,000 administrative penalty, disgorge $300,000, and pay $270,000 in costs, subject to an installment plan.

Both respondents were permanently banned from participating in Ontario's capital markets, with limited exceptions for Fisher.

In an enforcement proceeding against Stableview Asset Management Inc. and Colin Fisher, Staff served draft affidavits of three witnesses.

Fisher brought a motion to exclude portions of the affidavits on the grounds that they were irrelevant, contained improper opinion evidence, drew legal conclusions, or were improper hearsay.

The Tribunal ruled that significant portions of the affidavits were inadmissible at the merits hearing because they were irrelevant to the Statement of Allegations or constituted improper opinion evidence from non-expert witnesses.

The plaintiff, Lisa Spry, brought a motion to add Dr. James Shin as a defendant in her medical malpractice claim, relying on the doctrine of misnomer or, alternatively, arguing the motion was brought before the expiry of the limitation period.

Dr. Shin opposed, contending it was not a misnomer and the claim was statute-barred.

The court granted the motion, finding it was a case of misnomer because the plaintiff intended to sue all negligent healthcare professionals and the error in not naming Dr. Shin initially was unintentional and understandable given the records.

The court also found no non-compensable prejudice to Dr. Shin.

Alternatively, the court determined the limitation period began when Dr. Mak's statement of defence revealed another physician took over care, making the motion timely.

This proposed class action sought an ex parte Mareva injunction to freeze assets, including cryptocurrency, of organizers and participants in the 'Freedom Convoy' protest in downtown Ottawa.

The plaintiffs, residents, businesses, and employees, alleged damages from private and public nuisance.

The court found an apparently strong case for tort liability and a serious risk of asset dissipation, particularly with funds purposely moved to avoid seizure.

The injunction was granted, freezing funds controlled by the defendants, and the requirement for an undertaking for damages was waived due to the public interest and class action nature of the case.

The court also approved an amendment to the statement of claim to expand plaintiff classes and add defendants.

This decision concerns a request for reconsideration of a prior order granting leave to the plaintiffs to amend their statement of claim.

The defendant argued that an inadvertent error in the draft amendments quoted in the previous reasons was material, suggesting an attempt to introduce a negligent misrepresentation claim after the limitation period.

The court clarified that the actual proposed amendments were less problematic than the version inadvertently quoted.

The court affirmed its previous decision to grant leave to amend, finding the actual proposed amendments were more benign and did not warrant a different outcome.

No costs were awarded for the reconsideration request.

The plaintiffs sought damages after a house fire caused by failure of a motor within a heat recovery ventilator.

The court found that the appliance manufacturer negligently designed the unit by using cycling thermal protection without adequate system-level overcurrent protection or adequate end-of-life safety measures, and awarded property and non-pecuniary damages totalling $1,133,739.00.

The motor supplier was not liable because the motor itself was not defective, the appliance manufacturer bore responsibility for integrating the component safely into the finished product, and causation was not established on any alleged failure to warn.

The court also dismissed an issue estoppel motion based on prior Québec litigation and held that, if the component supplier had been liable, the contractual indemnity terms would have required indemnification by the appliance manufacturer.

The plaintiffs brought an action against several physicians involved in the treatment of their son, alleging a failure to diagnose Fragile X Syndrome, which led to the birth of a second child with the same genetic disorder.

The plaintiffs moved to amend their statement of claim to provide greater particularity, while the defendant physician moved to strike the claim, arguing he owed no duty of care to the parents of his patient.

The Superior Court of Justice granted the motion to amend, finding it did not introduce a new, statute-barred cause of action.

The court dismissed the motion to strike, holding that it was not plain and obvious that a novel duty of care could not be recognized between a physician and the parents of a patient in the context of genetic testing and family planning.

Following the dismissal of the appellants' appeal regarding trustee compensation on a passing of accounts, the parties made written submissions on costs.

The respondent (former trustee) sought full indemnity costs of $134,394.86, while the appellants argued for partial indemnity costs payable by the trust and sought their own costs from the trust.

The Divisional Court held that the respondent was entitled to full indemnity costs because he incurred them in his capacity as trustee.

The court fixed the respondent's costs at $90,000 all-inclusive, ordering a blended costs award where the appellants pay 60 percent and the trust pays 40 percent.

The appellants were ordered to bear their own costs.

The appellants, beneficiaries of a family trust, appealed a trial judge's decision on the passing of accounts of the respondent trustee.

They argued the trial judge provided inadequate reasons, erred in failing to find a conflict of interest when the trustee hired lawyers from his own firm, and awarded unreasonable compensation.

They also sought leave to appeal the full indemnity costs awarded to the trustee.

The Divisional Court dismissed the appeal and denied leave to appeal costs, finding the trial judge's reasons were adequate in context, there was no palpable and overriding error in finding no conflict of interest, the compensation reduction was reasonable, and the costs award properly reflected the public policy of indemnifying trustees for reasonable administration expenses.

The applicants, a syndicate of lenders and various construction trades, sought declarations that the respondent surety could not rescind performance and payment bonds issued for a hospital redevelopment project.

The surety had discovered alleged fraud and collusion in the procurement process and commenced a separate action for rescission.

The applicants argued they were innocent third parties whose rights under the bonds could not be defeated by the alleged fraud of the principals.

The court dismissed the applications, finding that the applicants' rights were derivative of the principals and that rescission remained a possible equitable remedy that must be determined on a full factual record at trial.

The appellants (Fasco) appealed a motion judge's decision to strike their defences to claims for contribution and indemnity by the respondent (Venmar) based on res judicata and abuse of process.

The underlying dispute involved two separate house fires, six years apart, both allegedly caused by a defective heat recovery ventilation unit (HRV) manufactured by Venmar, containing a motor manufactured by Fasco.

The motion judge had found that prior Quebec litigation concerning the first fire precluded Fasco from raising certain defences in the Ontario actions.

The Court of Appeal allowed Fasco's appeal, finding that the motion judge erred by not applying the "plain and obvious" test, and incorrectly concluded that the causes of action and issues were identical between the Quebec and Ontario proceedings, particularly given the different factual contexts (e.g., Venmar's evolving knowledge of defects) and the contractual indemnity defence Fasco sought to raise.

The court also noted that the motion judge should have considered the timeliness of Venmar's motion.

In an ongoing estate dispute between a widow and her children, the applicant widow brought a motion to add two corporate parties, admit a late affidavit regarding her health, substitute written interrogatories for oral cross-examination, and determine the scope of cross-examination.

The court added the corporate parties, finding one to be a necessary party.

The court admitted the late affidavit but excluded the attached medical reports as inadmissible hearsay.

The court declined to dispense with oral cross-examination, finding insufficient evidence of serious harm, but ordered specific accommodations for the 93-year-old applicant.

Finally, the court limited the scope of cross-examination to the three issues previously deemed urgent to conserve judicial resources.

In a costs decision following a professional liability trial, the court determined that the defendants were the successful parties despite findings that they breached their fiduciary duties.

The plaintiffs had sought over $16 million in damages but were only awarded $2,000 in nominal damages.

The court found the defendants' claimed costs of $1,261,235 to be reasonable, but reduced the award by 25% to reflect the court's finding of breach of fiduciary duty.

The plaintiffs were ordered to pay $925,000 in partial indemnity costs.

This decision addresses the issue of costs following a professional liability claim where the plaintiffs sought over $16 million in damages but were ultimately awarded only $2,000 in nominal damages for breaches of fiduciary duty by the defendants.

The court determined that the defendants were the successful parties, having largely resisted the substantial monetary claim.

Despite findings of serious fiduciary duty breaches against the defendants (a law firm and a former in-house counsel), the court awarded costs to the defendants, but reduced the quantum by over 25% to $925,000 to reflect the seriousness of their misconduct.

The plaintiffs sued their former law firm and former in-house counsel for professional negligence and breach of fiduciary duty arising from a commercial transaction and subsequent settlement.

The court found that the former in-house counsel breached his fiduciary duty by acting for the opposing party at a mediation, and that the law firm breached its standard of care by failing to warn the plaintiffs of this conflict.

The court also found the law firm breached its fiduciary duty by obtaining an ineffective conflict waiver.

However, the court concluded that these breaches did not cause the plaintiffs' claimed business losses, as the plaintiffs would have settled regardless and suffered no loss of chance.

The court awarded nominal damages of $2,000.