Sara J. Erskine

The applicant, a real estate acquisition company, sought a bankruptcy order against the respondent, a construction company that was its sole client.

The respondent disputed the application, arguing it was not indebted to the applicant and that the application was brought for improper purposes.

The court found that the applicant had established both elements of the bankruptcy test: a debt exceeding $1,000 and an act of bankruptcy within six months of filing.

The court rejected the respondent's arguments regarding set-off claims and improper purpose, finding that the respondent's director had mishandled corporate funds and that the respondent was unable to pay its creditors generally.

A bankruptcy order was granted and a trustee was appointed.

This is a costs decision following a trial in which the plaintiffs obtained a declaration that the defendant holds a sixty percent interest in property located at 1 Mill Walk Court, Richmond Hill, Ontario.

The plaintiffs sought costs on a partial indemnity basis until March 13, 2025, and substantial indemnity costs thereafter based on an offer to settle made on that date.

The defendant argued for a significant reduction in costs, contending that the plaintiffs abandoned most of their claims and that the offers were not comparable to the relief granted.

The court found that while the offers were not sufficiently comparable to invoke substantial indemnity costs, the plaintiffs had made genuine settlement efforts and the costs claimed were reasonable for most stages of the litigation.

The court awarded costs of $120,000 inclusive of disbursements and HST, representing a discount from the plaintiffs' claim due to the shifting relief sought.

The court considered whether a $1.2 million advance from the late William Humphries, through Radlett Holdings Inc., to Angela Zheng was a gift or created a resulting trust.

The court found that the funds were not a gift, but rather that Radlett Holdings Inc. retained a 60% beneficial interest in the property purchased by Angela Zheng, based on the intention of the deceased at the time of the advance.

The court relied on the evidence of the lawyer and accountant for the deceased, and found the defendant's evidence not credible.

The defendants sought an interlocutory injunction to restrain the plaintiff from enforcing its mortgage security by way of power of sale, pending the resolution of their counterclaim alleging misrepresentation.

The court found that while there was a serious issue to be tried regarding alleged misrepresentation, the defendants failed to establish irreparable harm, as any losses could be compensated by damages.

The motion for an injunction was dismissed.

Following a successful appeal that set aside the dismissal of their action under s. 137.1 of the Courts of Justice Act, the appellants sought costs of the motion below.

The respondents argued that the presumption against costs in s. 137.1(8) should apply.

The Court of Appeal agreed with the appellants that the presumption should not apply because the underlying dispute was a private matter and not a SLAPP.

The court awarded the appellants costs of the motion below fixed at $30,000.

The appellants, a home builder and its owner, brought a defamation action against the respondent homeowners over negative social media posts following a renovation dispute.

The motion judge dismissed the action under the anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act.

The Court of Appeal allowed the appeal, finding that the online reviews reflected a purely private dispute and did not relate to a matter of public interest.

The Court also held that the motion judge erred in her approach to the 'no valid defence' requirement and the public interest weighing exercise, concluding that the defamation action should be permitted to proceed.

The Monitor, FTI Consulting Canada Inc., brought a motion for an approval and vesting order in respect of the Purchased Assets and the sale thereof to Vault or an affiliate pursuant to the Rifco Asset Purchase Agreement, and for a stay extension order.

The Court approved the Rifco APA and the AVO, finding the process reasonable, the requirements of the Companies' Creditors Arrangement Act satisfied, and the transaction in the best interests of stakeholders.

The stay extension was also granted.

The appellants appealed a trial judgment that dismissed their claims of substantial interference with an easement and nuisance against the respondents, while granting a permanent injunction preventing parking in the right-of-way tunnel.

The respondents cross-appealed the scope of the parking injunction.

The Court of Appeal dismissed both appeals, finding no palpable and overriding error in the trial judge's interpretation of the easement, application of the substantial interference test, or the tailored scope of the parking injunction.

The trial judge's costs award was also upheld.

The appellant appealed an application judge's order declaring a basement unit part of the premises leased by the respondent.

The original lease defined the premises as "the whole," and while an amended lease changed the rent calculation method, the definition of the premises did not change.

The appellant argued the new rent calculation implied the basement was excluded.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's interpretation that the rent calculation merely changed the method for the entire building, especially given the original landlord's knowledge of basement subletting and the illogical outcome of decreased space with increased rent.

This is a costs endorsement following an appeal where the appellants' appeal was allowed.

The Court of Appeal addressed the disposition of costs for a motion previously heard in the Superior Court.

The appellants sought $20,098.48 for the motion costs.

Applying s. 137.1(8) of the Courts of Justice Act, the court fixed the motion costs at the requested amount and ordered them payable to the appellants by the respondents, conditional on the appellants' success in the ongoing main action.

The court noted the respondents' original motion had a low prospect of success.

The respondents moved to strike the applicant's application for want of jurisdiction.

The application sought court interpretation of a commercial lease renewal clause and an order fixing the rental rate, as the parties could not agree.

The court found the renewal clause, which stated the rental rate "shall be agreed upon," was an unenforceable "agreement to agree" because it lacked any mechanism or objective standard (like market rate) for determining the rent if the parties failed to agree.

The court distinguished this from cases where such mechanisms existed and rejected the applicant's argument of bad faith negotiation, finding the respondents' conduct did not meet the high threshold.

Consequently, the court lacked jurisdiction to set the rental rate, and the application was struck.

The appellants, a cat rescue operation and its director, appealed the dismissal of their defamation action under s. 137.1 of the Courts of Justice Act.

The motion judge had dismissed the action against all defendants, including non-moving parties, and awarded costs.

The Court of Appeal found that the motion judge erred by misapplying the s. 137.1 criteria, specifically by using a higher standard for assessing the substantial merit of the claim, mischaracterizing the "sting" of the defamation, relying on inadmissible hearsay, and improperly assessing the harm suffered by the appellants.

The Court also held that the motion judge erred in dismissing the action against defendants who had not brought a motion to dismiss.

The appeal was allowed, the dismissal order set aside, and the matter remitted for further proceedings.

The applicant, a mortgagee, sought the appointment of a receiver over the respondents' real property due to mortgage defaults and alleged insolvency.

The respondents opposed, arguing the remedy was not just or convenient and that the proposed receiver had a conflict of interest due to an existing receivership over adjacent lands with related easement disputes.

The court dismissed the application, finding that the applicant's security was protected, there was no evidence of property depreciation, and the applicant had not pursued existing mortgage enforcement proceedings.

The court also noted that appointing the same firm as receiver for both properties would create a conflict given the ongoing disputes regarding a shared easement.

The Plaintiffs sought leave to amend their claim to add new causes of action and parties, including knowing assistance, knowing receipt, misappropriation, conversion, unjust enrichment, and piercing the corporate veil, and to particularize allegations against a non-party and a discontinued defendant.

The GBRSAS Defendants opposed, arguing new causes of action were statute-barred and prejudice would result.

The court granted leave for most proposed amendments, finding they were alternative relief or different legal conclusions based on existing facts, or arose from the core factual matrix.

However, leave was denied for breach of contract claims against individual defendants, as these were new causes of action based on unpleaded facts and were statute-barred.

Leave was also denied to withdraw admissions regarding misrepresentations made by a settling defendant due to lack of reasonable explanation.

The plaintiff, an executive search firm, sued the defendant for breach of contract and breach of the duty of honesty and good faith related to a search for a Chief Financial Officer.

The defendant, a defunct company, did not take a position at the summary trial.

The court found the defendant breached the contract by failing to make a required payment and breached the duty of honesty and good faith by misleading the plaintiff and not allowing the search to conclude.

Damages of $67,000 plus interest and costs of $17,832.74 were awarded to the plaintiff.

The Tenant (Augusta Studios Inc.) brought an application seeking declarations that its commercial lease was not properly terminated by the Landlord (8699011 Canada Inc.), that the lease was in effect until July 31, 2027, and that it was not in default.

The Landlord alleged breaches related to subletting the second floor without consent and subletting the basement, which it claimed was not part of the leased premises.

The court found that the basement was included in the lease, consent was not required for the second-floor sublease, and the Landlord failed to provide proper notice of default.

The court concluded the Landlord's termination was unlawful and granted the Tenant the declarations sought, also stating that relief from forfeiture would be granted if the Tenant were found in breach.

This decision addresses costs following a trial concerning easement rights and property interference.

The plaintiffs' (Paiva) claims against the Town of Newmarket were dismissed, and their claims against the Buckley defendants were largely dismissed, except for a limited injunction.

The Buckley defendants' counterclaim for an injunction was granted.

The court, applying the Courts of Justice Act and Rules of Civil Procedure, awarded costs to the Town of Newmarket and the Buckley defendants as the overall successful parties, while reducing their claimed amounts due to excessive hours billed and, for the Buckley defendants, instances of breaching court orders.

This trial concerned a long-standing dispute over an easement (right-of-way) through a tunnel between adjacent commercial properties at 247, 253, and 255 Main Street South, Newmarket.

The plaintiffs, owners of 255 Main Street, alleged that the defendants, owners of 247 and 253 Main Street, substantially interfered with their easement rights through increased use, physical alterations, and parking.

The plaintiffs also sued the Town of Newmarket for enabling the interference.

The defendants counterclaimed, asserting the plaintiffs illegally parked on their property.

The court found that while increased use and minor alterations did not constitute substantial interference, the defendants' parking in the tunnel did.

The court dismissed the plaintiffs' claims for damages and against the Town of Newmarket, but granted an injunction preventing parking in the tunnel.

The court also granted the defendants' counterclaim, enjoining the plaintiffs from parking on the 253 Main Street parking pad, finding no ancillary right or prescriptive easement for parking.

The plaintiffs brought a motion for leave to issue a Certificate of Pending Litigation (CPL) over a commercial development property, claiming a 10% beneficial interest based on alleged oral agreements and financial contributions.

The defendants opposed, disputing the existence of a binding agreement or trust.

The court found a triable issue regarding the plaintiffs' claim to an interest in the property, satisfying the initial low evidentiary threshold for a CPL.

However, after balancing the equities, the court exercised its discretion to deny the CPL.

The court reasoned that the property was acquired for profit, making damages a satisfactory and calculable remedy, and that the property was not unique.

Furthermore, the CPL would act as an injunction, causing greater harm and inconvenience to the defendants by delaying development and sale while they remained responsible for carrying costs.

The applicant, EDE Capital Inc., sought to set aside two arbitral awards: a Partial Award on Damages and a Partial Award on Costs.

The applicant argued that the arbitrator breached procedural fairness by reopening issues and making inconsistent findings, exceeded jurisdiction by affecting non-parties, and mischaracterized claims under the Securities Act.

The court determined that the International Commercial Arbitration Act (ICAA) and the Model Law applied due to one respondent's habitual residence in China.

The court dismissed the application, finding no serious procedural unfairness or excess of jurisdiction, and affirmed the arbitrator's decision, including the costs award.