Sara J. Erskine

Following a summary judgment in favour of the plaintiff developer regarding a defaulted agreement of purchase and sale, the plaintiff sought costs.

The court noted the defendants pursued a defence and counterclaim identical to one recently dismissed by the Court of Appeal in a related case.

Despite this, the plaintiff only sought partial indemnity costs.

The court awarded the plaintiff costs fixed at $49,500 inclusive of fees, disbursements, and HST.

The plaintiff purchased an auto parts business from two of the defendants and sought an interlocutory injunction to enforce non-competition and non-solicitation clauses.

The plaintiff alleged the defendants established a competing business just outside the restricted radius and used a related company and former employees to solicit customers.

The court dismissed the motion, finding the plaintiff failed to establish a strong prima facie case that the restrictive covenants were breached, failed to prove irreparable harm, and that the balance of convenience favoured the defendants.

The plaintiff vendor brought a summary judgment motion against the defendant purchasers for failing to close on a luxury home.

The defendants argued they did not understand the agreement due to a language barrier and were misled about environmental issues on the property.

The court rejected these defenses, finding the defendants were experienced buyers who had a bilingual real estate agent and declined legal advice.

The court granted judgment for the plaintiff for the loss on resale and proven carrying costs, totaling $584,306.

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 applicant landlord and respondent tenant could not agree on the prevailing market rent for a three-year lease renewal of a property used as a Montessori school.

The landlord brought an application under Rule 14.05(3)(d) for a determination of the minimum rent.

The parties submitted competing expert appraisal reports, with the landlord's expert suggesting $23.00 per square foot and the tenant's expert suggesting $12.00 to $14.00 per square foot.

The court considered the property's specific use, zoning, amenities, and the impact of the COVID-19 pandemic, ultimately determining the appropriate market rent to be $18.00 per square foot.

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.

The defendant purchaser brought a motion to stay the plaintiff builder's action for breach of an agreement of purchase and sale in favour of arbitration.

The dispute arose from an aborted real estate transaction for a pre-construction home, where the defendant alleged the plaintiff breached early termination conditions under the Tarion Addendum.

Relying on a companion case, the court found that the dispute arguably fell within the arbitration clause and applied the competence-competence principle.

The motion was granted, and the action was stayed to permit the arbitration to proceed.

The plaintiff vendor commenced an action for specific performance or damages after the defendant purchaser failed to close on a pre-construction home.

The purchaser sought to stay the action in favour of arbitration, alleging the vendor breached the agreement by failing to complete the early termination conditions in the Tarion Addendum.

The vendor brought a motion for summary judgment.

The court held that the dispute over the early termination conditions and the applicability of the arbitration clause involved contested facts that should be resolved by an arbitrator under the competence-competence principle.

The action was stayed in favour of arbitration.

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.

The plaintiff, Jason Imola, brought a motion for leave to amend his statement of claim to add John Esteireiro as a defendant and assert claims for misrepresentation and intentional or unlawful interference with economic relations.

The proposed amendments arose from Mr. Esteireiro's alleged conduct during a transition period following an asset sale, including misrepresentations about the plaintiff's employment and directing him to conduct personal, unsupervised "grey market" trades.

The court granted leave to amend, finding the proposed claims legally tenable and arising from the same factual matrix, and that allowing the amendments would promote the convenient administration of justice without causing irremediable prejudice.

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.

The plaintiff, Eyelet Investment Corp., sought a court declaration that an arbitration initiated by the defendants (purchasers of residential properties) was invalid, arguing that the vendors had not participated in the arbitration process.

The defendants had initiated arbitration claiming termination of agreements of purchase and sale due to Eyelet's alleged failure to provide notice of non-waivable early termination conditions (ETCs) under the Tarion addendum, seeking a refund of deposits.

The court considered whether the arbitration agreement applied to the dispute and whether to defer to the arbitrator's jurisdiction.

The court found that the arbitration agreement applied broadly to the dispute, including related tort claims, and affirmed the principle of competence-competence, deferring the matter to arbitration.

The respondent was successful in opposing the appellant's motion for a stay pending appeal of a mandatory order to amend a Notice of Termination filed with the Investment Industry Regulatory Organization of Canada.

The court awarded costs to the respondent in the amount of $3,500.00, payable within 30 days.

The appellant's arguments that costs should be deferred pending the outcome of the appeal were rejected on the basis that success on a motion is assessed at the time the motion is decided, not retroactively based on appeal outcomes.

Following a trial where the plaintiff's claim was dismissed and the defendant succeeded on her counterclaim for wrongful dismissal and defamation, the defendant sought full indemnity costs.

The court found that the plaintiff's conduct in filing a knowingly false Notice of Termination with regulators and using it to extract a cash settlement was reprehensible and oppressive.

The court awarded the defendant costs on a full indemnity basis, fixed at $248,144.94, after making minor deductions for duplicative time and excessive disbursement charges.

A registered investment firm appealed a trial judgment finding that it had constructively dismissed a trader and defamed her by filing a Notice of Termination with IIROC stating she was dismissed for cause for unauthorized trading.

The trial judge ordered the firm to correct the notice.

On a motion for a stay of the mandatory order pending appeal, the court applied the three-part test from RJR-MacDonald and dismissed the motion.

The court found the appeal raised a serious question but that the appellant failed to establish irreparable harm, as the respondent suffered ongoing professional harm from the defamatory statements and the appeal would not be rendered moot by compliance with the order.

The appellant, Western Troy Capital Resources Inc., retained the respondent, Genivar Inc., an engineering consulting firm, to conduct a feasibility study for a mineral property at MacLeod Lake in Northern Quebec.

The trial judge found that Genivar breached its duty of care and made negligent misrepresentations, awarding damages of $1.25 million.

On appeal, Western Troy sought to increase the award to approximately $2.97 million or $2.15 million, arguing the trial judge failed to adequately explain his damages assessment.

The Court of Appeal upheld the trial judge's award, finding it was firmly grounded in evidence and that the trial judge properly considered speculative elements including the timing of when the resources estimate should have been completed, which expenses would have been incurred regardless, and the likely reaction of Western Troy's management to a timely report.

The plaintiffs, representing the estate of a deceased real estate developer, brought a motion for further documentary discovery from the defendants, representing the estate of his deceased business partner.

The dispute centered on the calculation of a 'net profit share' under a 2003 agreement.

The plaintiffs sought extensive financial records to challenge the defendants' auditor's valuation, which found a net loss.

Applying the principle of proportionality under the Rules of Civil Procedure, the Master ordered partial production of the requested documents, limiting the scope to the specific project in dispute rather than all related projects.