Shaun F. Laubman

This endorsement addresses the costs arising from the respondents' largely unsuccessful motion to stay or dismiss the applicant's proceeding.

The applicant sought substantial indemnity costs, while the respondents sought costs thrown away due to the applicant's improper procedural choice (application instead of action) and conduct.

The court awarded the applicant partial indemnity costs of $50,000, but also awarded the respondents $25,000 "on account" for costs thrown away, considering the applicant's procedural misstep, improper contact with represented parties, and questionable urgency claims.

The net result was an order for the respondents to pay the applicant $25,000 in all-inclusive costs.

The Proposal Trustee sought directions from the court regarding the procedure for determining a complex proof of claim filed by Maria Athanasoulis, comprising a wrongful dismissal claim and a significant profit share claim, within the context of a court-approved proposal under the Bankruptcy and Insolvency Act.

The motion addressed disagreements among stakeholders (Athanasoulis, Sponsor, and Limited Partners) on how to proceed with the claim's determination and subsequent appeal, particularly concerning the scope of evidence, the nature of the appeal (true appeal vs. de novo), and the standing of the Limited Partners.

The court provided detailed directions to ensure procedural fairness and efficiency, deferring the valuation of future-oriented damages until after the provability of the profit share claim is determined on appeal, and limiting the Limited Partners' standing to specific issues.

The plaintiffs brought a motion to appoint an independent litigation guardian for Anthony Di Silvestro Sr., who was deemed incapable of managing his property and instructing counsel.

The defendants, including Tony Sr.'s daughter Laura, opposed, arguing Laura should remain as LG based on a Power of Attorney and that the plaintiffs needed to show misconduct.

The court found that Laura and Matthew had conflicts of interest due to allegations of undue influence over their parents' business and estate plans.

The court dismissed Laura's claim that her prior self-appointment as LG shifted the burden to the plaintiffs to prove misconduct.

Applying the 'best interests test' and 'indifference' principle from Gronnerud, the court ruled that neither Laura, Matthew, nor a family-connected accountant (Mr. Mastroluisi) were suitable due to potential conflicts.

The court appointed Bryan Gelman, an independent insolvency trustee, as the litigation guardian for Tony Sr., subject to approval of terms.

The respondents brought a motion to stay or dismiss the application as an abuse of process, alleging the applicant failed to immediately disclose a settlement agreement with a co-respondent, failed to disclose surveillance evidence, and improperly commenced the proceeding as an application.

The court found that the applicant had made immediate and proper disclosure of the settlement agreement to both the non-settling parties and the court, and that the handling of surveillance evidence did not constitute an abuse of process.

The motion to stay was dismissed, but the court ordered the application converted into an action.

This appeal concerned the enforcement of letters rogatory issued by a California court in a divorce action, seeking financial disclosure from Canadian corporations and an individual.

The Ontario application judge granted the request, subject to minor refinements.

The appellants, corporate entities associated with the husband, argued procedural errors (lack of service) and substantive errors (wrong test applied, fishing expedition, burden of proof).

The Court of Appeal dismissed the appeal, affirming that the disclosure was relevant to family law obligations and not a fishing expedition, and that the application judge correctly applied the criteria for enforcing letters rogatory, including principles of comity and public policy.

The court also found that the documents were not otherwise obtainable given the husband's history of non-compliance.

The Proposal Trustee brought a motion to compel the Proposal Sponsor to fund the Trustee's continuing work to resolve outstanding proofs of claim, specifically the Athanasoulis Claim, via a two-phase arbitration.

The Sponsor objected to funding phase 2 of the arbitration, arguing it was an improper delegation of the Trustee's duties under s. 135 of the BIA.

The court agreed with the Sponsor, finding that while phase 1 (fact-finding) was acceptable, phase 2 (final adjudication of damages) improperly delegated the Trustee's statutory responsibility to determine and value the claim.

The Sponsor was not ordered to fund phase 2 of the arbitration but remains obligated to fund the Trustee's reasonable expenses to determine the claim through an alternative process.

The defendants in two related actions sought orders to compel the plaintiffs, Andrew Stronach and Selena Stronach, to undergo medical examinations to assess their mental capacities for the purpose of determining if litigation guardians were required.

The court dismissed the motion against Selena Stronach, finding insufficient evidence to rebut the presumption of capacity.

The motion against Andrew Stronach was dismissed without prejudice, as the court found it premature and suggested other discovery avenues should be pursued first.

The court also declined to order production of video recordings of Andrew's examination for discovery.

The appellants appealed a motion judge's decision striking out portions of their statements of defence.

The impugned pleadings referred to documents and communications from a judicial mediation, which the motion judge found were prima facie protected by settlement privilege.

The Divisional Court dismissed the appeal, holding that the motion judge correctly applied Rule 25.11 of the Rules of Civil Procedure.

The court affirmed that the respondents had not waived settlement privilege and that the justice of the case did not require an exception to allow the appellants to plead the privileged information to defend against breach of fiduciary duty claims.

The moving parties sought leave to appeal from the decision of Cavanagh J. dated August 26, 2021.

The Divisional Court granted the motions for leave to appeal and awarded costs in the agreed amount of $20,000 payable by the responding parties.

A case management teleconference was scheduled to settle a schedule for the exchange of appeal materials and to schedule an expedited appeal date.

The defendants brought a motion to strike portions of the plaintiffs' Amended Statement of Claim, arguing the claims lacked particularity, disclosed no reasonable cause of action, and that the oppression claims should have been brought as a derivative action.

The dispute involved a family-owned real estate business.

The court dismissed the motion, finding that the pleadings provided sufficient particulars and that it was not plain and obvious that the plaintiff's oppression claims would fail, particularly given the context of a closely-held family corporation where personal and derivative claims may overlap.

The plaintiffs were granted leave to amend certain paragraphs to provide additional facts.

The plaintiffs, Andrew and Selena Stronach, brought motions to strike out portions of the defendants' Fresh as Amended Statements of Defence under Rule 25.11 of the Rules of Civil Procedure.

The plaintiffs argued that the impugned pleadings improperly referenced documents and communications that were subject to settlement privilege arising from a confidential judicial mediation.

The defendants argued that the plaintiffs had waived privilege or that an exception applied based on the justice of the case.

The court found that the mediation was subject to settlement privilege, the plaintiffs had not waived the privilege, and no exception applied.

The court granted the motions to strike the pleadings relating to the mediation.

The court also struck out portions of one defendant's pleading as scandalous, but dismissed a motion to require another defendant to reinstate a withdrawn admission.

Following the approval of an amended restructuring proposal under the Bankruptcy and Insolvency Act, two limited partner applicant groups sought costs for their participation in the proceedings.

The court declined to award costs, noting the Commercial List practice of generally not awarding costs in restructuring matters.

The court emphasized that restructuring is not a classic adversarial proceeding and that stakeholders should not be discouraged from participating by the threat of costs.

No order as to costs was made for the bankruptcy proceeding, though the court left open the possibility of addressing costs in the related civil proceedings if funds flow back to the partnership.

The debtors, YG Limited Partnership and YSL Residences Inc., sought court approval for version 2 of Amended Proposal #3 under the Bankruptcy and Insolvency Act, following the court's previous rejection of an earlier proposal.

The amended proposal addressed the court's prior concerns by treating related party claims as equity, ensuring construction lien claims did not dilute unsecured creditors' recoveries, and providing that any surplus funds would be returned to the limited partnership.

The court found the amended proposal to be reasonable, calculated to benefit the general body of creditors, and advanced in good faith, and therefore granted the order approving the proposal.

The debtors, YG Limited Partnership and YSL Residences Inc., sought court approval of a bankruptcy proposal under the Bankruptcy and Insolvency Act.

Two groups of limited partners opposed the proposal, arguing it was not reasonable, was advanced in bad faith, and improperly treated related-party advances as debt rather than equity.

The court refused to approve the proposal, finding that the related-party claims were equity claims, the proposal sponsor had improperly induced unaffected lien claimants to vote as affected creditors, and the general partner had breached its fiduciary duties by advancing a proposal designed to benefit related parties at the expense of the limited partners.

The respondent sought costs of $85,885.03 on a partial indemnity basis following the applicant's unsuccessful application for leave to appeal an arbitral award.

The applicant argued costs should be capped at $40,000.

The court considered the factors under Rule 57.01, noting the issues were of moderate complexity and the parties' costs outlines were similar.

After making a slight reduction for duplication of work and excessive time spent by lead counsel, the court awarded the respondent costs of $79,000 all-inclusive.

The plaintiffs, Andrew and Selena Stronach, sought leave to amend their respective statements of claim in two related actions concerning the management of the Stronach family business and trusts.

The defendants, including Belinda Stronach, opposed the amendments on several grounds, primarily arguing that references to a May 2020 Agreement were barred by settlement privilege.

The court found that the defendants failed to prove the May 2020 Agreement was intended to be kept confidential, and alternatively, that any privilege had been waived or an exception applied.

The court also rejected arguments that the amendments improperly withdrew admissions or were scandalous and vexatious.

Leave to amend the pleadings was granted.

This endorsement provides a clarification to an earlier ruling on a pre-trial motion.

The respondent (moving party) had sought to prevent the applicant from raising issues concerning the ownership, control, or valuation of Firm Capital Mortgage Corporation or Door to Door Investments Inc. (FCMC Companies) at trial.

The original motion was dismissed, allowing the applicant to raise these issues.

The clarification emphasizes that this permission does not dictate the manner in which these matters may be raised, the admissibility of evidence, or how evidence may be led.

It also clarifies that the ruling did not address the addition of Marilyn Dadouch or the FCMC Companies as parties, stating that such relief would require a separate motion.

The Respondent sought a pre-trial ruling to preclude the Applicant from raising issues related to the ownership, control, or valuation of certain companies (FCMC Companies) at trial.

The Respondent argued irrelevance, abuse of process due to a parallel civil action, issue estoppel from a prior disclosure motion, lack of necessary parties, and insufficient pleadings.

The court dismissed the Respondent's motion, finding the Applicant's claims relevant to net family property and support, no abuse of process as the legal issues differed from the civil action, no issue estoppel as the prior ruling was on disclosure, and no preclusion due to non-joinder of parties or insufficient pleadings, as the Respondent had clear notice of the issues.

Parc-IX Limited applied to set aside an arbitral award, arguing the arbitrator exceeded jurisdiction by failing to consider legal regulations (Rental Replacement Unit policy) affecting property valuation under a ground lease.

Manufacturers Life Insurance Company cross-applied to enforce the award.

The court dismissed Parc-IX's application, finding the arbitrator did consider the regulations but determined they did not apply on the facts, acting within jurisdiction.

The application to set aside the costs award was also dismissed, affirming that costs are determined on the facts of each case.

The applicant sought leave to appeal an arbitral award concerning the interpretation of "Appraised Value" in a long-term commercial ground lease.

The dispute centered on whether the appraised value should be based on a mixed-use residential/commercial development or a mixed-use office/commercial shopping centre, considering zoning bylaws and current use.

The arbitrator had ruled in favor of the respondent.

The applicant alleged three extricable errors of law: failure to consider binding legal authority (official plan vs. zoning bylaw), failure to apply principles of contractual interpretation, and error in excluding expert reports.

The court found that the Ground Lease, which stipulated awards were "final and binding" governed the arbitration, not a separate arbitration agreement.

It further determined that the alleged errors were questions of mixed fact and law, not extricable errors of law, and that the expert reports were properly excluded as they did not assist in contractual interpretation.

Consequently, the application for leave to appeal was dismissed.