Sara J. Erskine

The appellants brought a motion to set aside, amend, or vary the Court of Appeal's previous order regarding trial costs, arguing procedural unfairness, inconsistency with costs principles, and insufficient reasons.

The motion was brought under rules 59.06(1) and (2)(d) of the Rules of Civil Procedure.

The court dismissed the motion, finding that the relief sought was not available under rule 59.06, as it was an attempt to reargue issues already adjudicated.

The court clarified that challenges to discretionary orders, procedural fairness, or adequacy of reasons are typically grounds for seeking leave to appeal to the Supreme Court of Canada.

The court also addressed and dismissed belated arguments regarding the order settlement procedure under rule 59.04 and the inapplicability of rule 37.14.

The plaintiff brought a motion to transfer the action from Ottawa to Toronto.

The court dismissed the motion without costs, noting that a prior order had already transferred the action to Toronto and there was no evidence the order had been set aside or varied.

This costs endorsement followed a successful appeal by the appellant, Dong Jin Qiu, regarding the quantum of damages.

The appeal resulted in the respondent, Biao Liu, owing the appellant $10,496.68.

The court determined that the appellant was the successful party at both trial and appeal, contrary to the respondent's argument for partial indemnity costs based on a forfeited deposit.

As the appellant did not request costs, no order for trial costs was made.

The appellants, former portfolio managers, appealed a trial decision dismissing their claim for over $1.3 million in performance fees and a discretionary bonus from their former employer.

The Court of Appeal upheld the trial judge's finding that the appellants were not contractually entitled to performance fees directly from the respondent, as their entitlement was structured through a side agreement with a lead portfolio manager.

However, the Court found the trial judge erred in precluding the appellants from arguing their entitlement to a discretionary bonus, as this claim was sufficiently pleaded.

The Court awarded each appellant $115,000 for the discretionary bonus, determining that the employer's discretion in awarding bonuses was not exercised fairly and reasonably given the fund's exceptional performance and bonuses paid to similarly situated employees.

The moving party, who was the respondent on a previous appeal, brought a motion under Rules 37.14 and 59.06 of the Rules of Civil Procedure to vary the Court of Appeal's decision and dismiss the appeal.

The moving party argued the court erred by misreading the record regarding the interpretation of a partnership agreement.

The court found Rule 37.14 inapplicable as it pertains to specific procedural errors, and Rule 59.06 (accidental slip or omission) also inapplicable, as the submission was a re-argument of a point already considered and not supported by the trial judge's findings or the agreement's wording.

The motion was dismissed with costs.

The applicants sought the release of funds held in trust, arguing that a writ of execution obtained by the respondent against a bare trustee did not attach to the property.

The respondent argued that the bare trustee was also acting as an agent for the applicants, making them liable as principals for her unpaid commissions.

The court found that while an agency relationship did exist, the respondent was precluded from recovering against the principals because she had already obtained judgment against the agent, and the limitation period to sue the principals had expired.

The funds were ordered released to the applicants.

The appellant, a subtenant, appealed a lower court decision that found no rent reduction agreement existed and dismissed its claim for damages after being locked out for non-payment of rent.

The appellant argued the lockout was unlawful and sought damages.

The Court of Appeal dismissed the appeal, upholding the application judge's factual finding that no rent reduction agreement was made, noting deference is owed to such findings in the absence of palpable and overriding error.

The court also found the landlord was not liable for damages under the Helping Tenants and Small Businesses Act, 2020, as the lockout occurred before the Act's non-enforcement period began, and the tenant regained possession shortly after the Act came into force.

Leave to appeal the costs award was also dismissed.

The plaintiff, CryptoStar Corp., sought an interim order for the preservation of specific funds (Upfront Payments) or assets purchased with them, and a declaration of interest in property to facilitate a Certificate of Pending Litigation (CPL) in Alberta.

The court dismissed the motion, finding that the Upfront Payments did not constitute a "specific fund" under Rule 45.02 as they were co-mingled and not contractually segregated.

The court also found no serious issue to be tried regarding the refund claim under the Agreement's terms and no basis for a CPL as the plaintiff failed to establish an interest in land.

The appellant appealed a trial judgment regarding the measure of damages for breach of a joint venture partnership agreement.

The Court of Appeal upheld the trial judge's finding of a binding partnership agreement and its breach but found an error in the quantification of damages.

The trial judge had incorrectly awarded the respondent the extra capital he invested as damages.

The Court of Appeal clarified that damages should be limited to the cost of borrowing the additional capital incurred due to the breach, up to the date of trial, less a retained deposit.

The appeal was allowed with costs to the appellant.

The applicants sought an order declaring that a writ of execution obtained by the respondent against Stonebrook Inc. did not attach to real property registered in Stonebrook Inc.'s name.

The respondent had obtained the writ to enforce a judgment for unpaid commissions.

The court found that Stonebrook Inc. held the property merely as a bare trustee for the applicants (the beneficial owners) and had no independent discretion or beneficial interest in the property.

Consequently, under section 9(1) of the Execution Act, the writ could not attach to the property.

However, the court deferred releasing funds held in trust to allow the respondent an opportunity to argue that the bare trustee acted as an agent for the beneficial owners.

The appellant, Country Garden Academy Inc., appealed a Superior Court judgment that determined the minimum rent for a lease renewal.

The appellant argued the application judge erred in interpreting "comparable premises," failing to consider zoning limitations, and overlooking alleged bad faith by the respondent.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's holistic consideration of factors, including property use and zoning, and no evidence to support the bad faith claim.

The respondent's cross-appeal for leave to appeal costs was also denied.

The plaintiff brought a motion to strike the defendants' statement of defence due to the nonpayment of previous costs awards totaling $25,700.

On the eve of the hearing, the parties settled the motion, leaving only the issue of costs to be decided.

The plaintiff sought costs of approximately $15,000 on a substantial indemnity basis, while the defendants argued for $2,500 to $3,500.

The court found the motion was unnecessary and caused by the defendants' failure to pay prior awards, but reduced the plaintiff's claimed hours for an articling student.

Costs were fixed at $6,000 inclusive of HST and disbursements.

The applicant subtenant brought an application seeking damages for an allegedly unlawful lockout by the respondent sublandlord.

The applicant claimed the parties had orally agreed to a 75% rent reduction due to the COVID-19 pandemic.

The court found the applicant failed to prove the existence of the oral agreement, noting the sublandlord had requested full payment and the applicant failed to provide documentation required for a Canada Emergency Commercial Rent Act (CECRA) application.

The court held the lockout was lawful and not precluded by pandemic-related amendments to the Commercial Tenancies Act.

The application was dismissed with costs.

This costs endorsement followed successful appeals by the Fram and Kerbel entities against Romandale Farms Limited.

Romandale had initially been awarded substantial indemnity costs for four intertwined actions tried together.

The Court of Appeal, applying the principle of overall success rather than issue-by-issue determination, found that Fram and Kerbel were entitled to partial indemnity costs for the original actions, having achieved overall success on appeal and having beaten a joint settlement offer.

The appellants, Fram and Kerbel, appealed a trial judgment that declared a 2005 land sale agreement between Kerbel and Romandale at an end.

The trial judge had found that Kerbel repudiated the agreement by entering into a settlement agreement with Fram that delayed the closing of the land sale until after secondary plan approval.

The Court of Appeal allowed the appeals, finding that Romandale was estopped by convention from asserting that the settlement agreement breached the 2005 agreement, as all parties had shared the assumption that the sale could only close after secondary plan approval.

The Court also held that the 2005 agreement was not frustrated or void for mistake, Kerbel's claim was not limitation-barred, and Kerbel was entitled to specific performance because the lands were unique.

This decision addresses the costs arising from a decade-long, four-action litigation where Romandale Farms Limited was the successful party.

Romandale sought substantial indemnity costs against Fram and Kerbel (and their associated entities).

The court found that Fram and Kerbel's conduct throughout the litigation was "reprehensible and deserving of sanction," including pursuing meritless claims for tactical reasons, making disingenuous arguments, and principals giving false evidence.

The court awarded Romandale substantial indemnity costs of $2,708,651.57, inclusive of fees and disbursements, payable jointly and severally by Fram and Kerbel, finding the amount fair and reasonable given the complexity, stakes, and the losing parties' conduct.

Multiple actions arising from a complex land development dispute involving co-ownership agreements for two farm properties in Markham.

Fram alleged Romandale breached the co-ownership agreements by entering into a conditional agreement to sell its interest to Kerbel.

Kerbel later entered into a settlement agreement with Fram to delay the closing of its purchase from Romandale for decades.

The court found that Romandale did not breach the co-ownership agreements.

Furthermore, the court held that Kerbel repudiated its agreement with Romandale by entering into the settlement agreement with Fram, which fundamentally altered the timeline for closing.

All claims by Fram and Kerbel against Romandale were dismissed, and Romandale was granted a declaration that its agreement with Kerbel was at an end.

The plaintiff brought two actions against the defendants for unpaid commissions and remuneration for work on a technical audit related to a condominium development project.

The plaintiff claimed she had a verbal agreement for a 2% commission or $220,000 per year.

The court found no such agreement existed and instead applied quantum meruit, awarding the plaintiff $182,152.81 based on an industry-standard 1.5% commission rate.

The plaintiff's second claim for technical audit work was dismissed on the basis of unjust enrichment principles, as there was no reasonable expectation of payment.

The appellant, former CEO and chairman of Sino-Forest Corporation (SFC), appealed a trial judgment awarding damages of $2.627 billion plus $5 million in punitive damages for fraud and breach of fiduciary duty.

The appellant argued that the litigation trust lacked standing to pursue claims that overlapped with class actions, that the damages award created double recovery risks, and that the transfer of assets constituted an election barring the claim.

The Court of Appeal upheld the trial judgment, finding that the litigation trust held separate and distinct corporate causes of action from those of individual shareholders and noteholders in the class actions, that the damages award was properly calculated based on SFC's losses, and that no election doctrine applied.

Hampton Securities Limited appealed a trial judgment in which the trial judge found that the employee, Christina Nicole Dean, was not indebted to Hampton for trading losses, was constructively dismissed, and was entitled to six months' notice in lieu of salary.

The trial judge also awarded damages for defamation and punitive damages, along with costs on a full indemnity basis.

The Court of Appeal upheld all findings, rejecting Hampton's arguments regarding the employment contract interpretation, constructive dismissal, the enforceability of the termination clause, the qualified privilege defence to defamation, and the appropriateness of punitive damages and costs awards.