Sean N. Zeitz

In a bankruptcy proposal proceeding, the fourth mortgagee brought a motion for a vesting order to purchase the debtor's property, while a competing purchaser brought a cross-motion to set aside a previous vesting order on the basis of lack of notice.

The court found that the competing purchaser had been unfairly deprived of notice and the opportunity to participate in the hearing.

The court terminated all previous agreements of purchase and sale and ordered a new confidential bidding process to ensure fairness.

This is a costs endorsement following a successful appeal.

The appellant (defendants) had won their appeal, leading to the dismissal of the respondent's (plaintiff's) action.

The parties could not agree on the costs of the Superior Court motion, cross-motion, and other action costs.

The appellant sought over $108,000 in partial indemnity costs.

The respondent argued that the appellant should be disentitled to costs incurred after the close of pleadings due to a multi-year delay in bringing a summary judgment motion.

The Court of Appeal found no special circumstances to disentitle the appellant to costs, noting that both parties contributed to the delay.

However, the court found the total amount claimed by the appellant to be excessive given the straightforward nature of the case and the amounts in issue.

The court ordered the respondent to pay the appellant an all-inclusive sum of $75,000 for costs of the action, including the motion and cross-motion.

The applicant brought a motion seeking further production of documents from the respondent's real estate lawyer's file related to a mortgage refinancing, arguing that previous productions were incomplete despite two prior motions.

The respondent claimed all documents had been produced and asserted solicitor-client privilege.

The court, noting the high conflict and lack of trust between the parties, ordered the respondent to instruct the lawyer to provide the applicant's counsel with a complete and unredacted copy of the entire file by a specified date, with provisions for extension due to the COVID-19 pandemic.

This is a costs endorsement following a successful appeal.

The Court of Appeal for Ontario allowed the appeal and ordered the respondent to pay the appellant's costs of the appeal in the all-inclusive sum of $10,000.

The appellant was also entitled to costs of the motion and cross-motion in the Superior Court, and prima facie entitled to costs of the action below, given the dismissal of the respondent's action.

The court set a schedule for the parties to submit written costs submissions if they could not agree on the quantum of the remaining costs.

The appellant, a creditor in a bankruptcy proceeding, appealed two decisions by Masters sitting as Registrars in Bankruptcy.

The appellant sought an order under s. 38 of the Bankruptcy and Insolvency Act (BIA) to pursue a claim that a property registered in the respondent mother's name was beneficially owned by the bankrupt former spouse.

He also sought an order under s. 163(2) of the BIA to examine witnesses regarding the property and the bankrupt's alleged undisclosed income.

Both Masters dismissed the motions, primarily relying on a prior consent family law order (the "Vallee Order") which explicitly stated the property would not form part of the bankrupt's estate for any purpose.

The court dismissed both appeals, affirming that the Masters did not err in principle or law.

It was held that the appellant failed to establish threshold merit for the s. 38 motion given the Vallee Order, and it would be inequitable to allow him to indirectly pursue what he had expressly agreed not to.

For the s. 163(2) motion, the court found the appellant did not demonstrate "something amiss" with the estate administration, concluding the proposed examinations were a fishing expedition.

This motion concerned the production of documents from a former solicitor's file, where the applicant, T.O.E., sought disclosure of emails related to the respondent, I.S.'s, attempt to refinance a mortgage.

The respondent claimed solicitor-client privilege over certain communications, including those with her family law counsel.

The court found that the respondent had implicitly waived privilege by selectively disclosing some privileged documents ("cherry-picking") and by intending to call the solicitor as a witness on matters of substance related to the refinancing.

Consequently, the court ordered the production of the remaining undisclosed documents and awarded costs to the applicant.

The respondent, an undischarged bankrupt, discovered a potential professional negligence claim against his deceased wife's insurance agent.

He commenced an action after his discharge, but the cause of action had vested in his trustee in bankruptcy.

The motion judge granted an order nunc pro tunc regularizing the proceeding.

On appeal, the Court of Appeal held that the motion judge lacked authority to grant a nunc pro tunc order because it was sought after the expiry of the applicable limitation period.

The appeal was allowed and the action dismissed.

The defendant in a solicitor's negligence action brought a motion for security for costs under Rule 56.01(1)(d) of the Rules of Civil Procedure.

The plaintiffs, who were placed into receivership allegedly due to the defendant's failure to attend a receivership application, opposed the motion on the basis of impecuniosity.

The court found that the plaintiffs had demonstrated they could not raise security from their shareholders and that their claim was not plainly devoid of merit.

The motion was dismissed, and costs of $5,500 were awarded to the plaintiffs.

The applicant brought a motion to compel the respondent to answer undertakings and produce documents, including unredacted files from third-party lenders and a real estate file over which solicitor-client privilege was claimed.

The court found the respondent had not made sufficient efforts to comply with her undertakings and ordered her to write directly to the third parties for unredacted files.

The court also ordered the allegedly privileged emails to be produced for a privilege review process.

Costs of $7,500 were awarded to the applicant.

The respondent brought a claim for damages arising from the denial of payment under a life insurance policy.

The motion judge dismissed the appellant's motion for summary dismissal based on lack of capacity and granted the respondent standing to bring the action notwithstanding his prior bankruptcy.

The appellant appealed, disputing whether the motion judge's order was made pursuant to the Bankruptcy and Insolvency Act or inherent jurisdiction.

The Court of Appeal upheld the motion judge's decision, finding that the order was made pursuant to inherent jurisdiction as it was a civil action for damages brought years after discharge from bankruptcy, not a bankruptcy proceeding.

This decision provides supplementary reasons for costs following a motion brought by the Pappas Defendants for costs of a discontinued action.

The Master had previously awarded the Pappas Defendants $22,800.00 in costs for the discontinued action.

In this supplementary decision, the Master considered the costs of the motion itself.

The Pappas Defendants sought $10,000.00 for the motion costs, while the plaintiff argued for no costs.

The Master found the Pappas Defendants to be the successful party on the motion, but noted that the costs awarded for the action were only about one-third of what was sought, and that the plaintiff had some justification for commencing the action, and the Pappas Defendants failed to make a reasonable offer to settle.

Consequently, the Master ordered the plaintiff to pay one-third of the Pappas Defendants' partial indemnity costs for the motion, fixed at $4,300.00.

Following the plaintiff's discontinuance of a fraud action, the defendants brought a motion for full indemnity costs of approximately $65,000 under Rule 23.05.

The court held that the 2009 amendment to Rule 23.05 removed the presumptive entitlement to costs, requiring the court to exercise its general discretion.

Finding that the plaintiff had some justification for commencing the action but ultimately discontinued it for economic reasons, the court awarded the defendants partial indemnity costs.

However, because the defendants unreasonably rejected a without-costs dismissal offer and countered with an inflated costs demand, the court limited their costs recovery to those incurred prior to the plaintiff's offer, fixing the award at $22,800.

This endorsement addresses the costs of a successful appeal and an original motion.

The plaintiff sought costs on a partial indemnity basis for the appeal and a substantial indemnity basis for the motion.

The defendants argued for costs to be reserved to the trial judge or payable in the cause, citing impecuniosity.

The court awarded the plaintiff costs for both the appeal ($12,500 on a partial indemnity basis) and the original motion ($17,500 on a partial indemnity basis), but ordered them payable after the trial has concluded, in any event of the cause.

The court declined to award substantial indemnity costs for the motion, finding the defendants' allegedly irrelevant evidence did not warrant a higher scale.

The plaintiff law firm sued its former client for unpaid legal fees.

Shortly after being served, the client granted a mortgage on her property to her former brother-in-law.

The plaintiff sought leave to issue a certificate of pending litigation (CPL) alleging a fraudulent conveyance.

The Master denied the CPL, finding insufficient evidence of fraudulent intent.

On appeal, the Superior Court found the Master erred in law by applying a higher standard of proof to the second part of the test for a CPL and usurping the function of a trial judge.

The appeal was allowed and the CPL was granted.

The appellant brought a motion to transfer his appeal of a summary judgment order to the Court of Appeal, after his process server mistakenly filed the Notice of Appeal in the Divisional Court.

The court applied the Dunnington test under s. 110 of the Courts of Justice Act to determine whether to transfer the appeal.

Finding that the appeal lacked merit and merely sought to reweigh the motion judge's factual findings without identifying any extricable error of law, the court concluded the appeal was frivolous.

The motion to transfer was dismissed with costs awarded to the respondent.

The plaintiff, a law firm, moved for leave to amend its statement of claim to add a defendant and claims for a certificate of pending litigation (CPL) regarding a property.

The CPL was sought on the basis that a second mortgage granted by the defendant to her brother-in-law was a fraudulent conveyance or an unjust preference.

The court granted leave to amend the claim but denied the motion for a CPL, finding that the plaintiff failed to demonstrate a "high probability" of fraudulent intent or unjust preference, as required when judgment has not yet been obtained.

The court found sufficient consideration for the mortgage and no clear evidence of insolvency or intent to defraud.

The plaintiff bank brought a motion for summary judgment to collect on an overdraft facility and a personal guarantee signed by the individual defendant.

The defendant argued non est factum, claiming he was misled by a bank representative into believing no personal guarantee was required.

The court granted summary judgment, finding no genuine issue requiring a trial, as the defendant was careless in signing the document and the bank's statements did not amount to a material misrepresentation.

The appellant appealed a summary judgment decision and costs order from the Superior Court.

The motion judge had awarded the appellant $118,954.95 in damages for breach of contract arising from the respondents' refusal to close on a property purchase, but awarded no costs.

The appellant challenged both the calculation of the $43,000 property value difference and the denial of costs.

The Court of Appeal dismissed the appeal on damages but allowed the appeal on costs, finding the motion judge erred in principle by depriving the successful party of all costs without exceptional circumstances justifying such a punitive order.

The appellant, Earl Lewis, operating as The Recovery Board, appealed a judgment finding him jointly and severally liable for conversion of three vehicles.

The vehicles had been towed by Chris's Towing and Lewis was retained to register liens and issue notices of intention to sell.

The application judge found Lewis liable for conversion and awarded damages including HST.

The Court of Appeal upheld the finding of liability for conversion but reduced damages by eliminating the HST component, as the respondent had not incurred HST costs and ownership had changed before actual sales occurred.

This is a costs endorsement on appeal from a Superior Court judgment.

The appellant was awarded costs of the motions before the motion judge in the amount of $85,000 inclusive of disbursements and HST.