Shawna Sosnovich

Following a procedural motion where the moving defendants successfully obtained an order for a further and better affidavit of documents and written interrogatories, the parties could not agree on costs.

The moving defendants sought $14,217.87 on a substantial indemnity basis, while the plaintiffs argued for no costs due to divided success, or alternatively $3,500.

The court found the moving defendants were largely successful and awarded them costs fixed at $7,500 on a partial indemnity basis, noting the motion was straightforward and did not warrant substantial indemnity costs.

The moving defendants in a $3.5 million debt collection action brought a motion to compel the plaintiffs to produce a further and better Affidavit of Documents and to produce the elderly plaintiff for oral discovery.

The court found the plaintiffs' initial Affidavit of Documents deficient for failing to list relevant banking and loan records, ordering a further and better affidavit.

However, relying on medical evidence of the plaintiff's frail health, the court declined to order her attendance at oral discovery, directing instead that discovery proceed via written interrogatories.

The plaintiff bank moved for summary judgment against two defendants on personal guarantees of a corporate loan and a credit card balance.

The defendants argued that bank representatives had assured them their liability was limited to 25% each, contrary to the literal wording of the guarantees.

The court dismissed the motion, finding a genuine issue requiring a trial regarding the guarantees, as the defendants' uncontradicted evidence about the bank's representations required credibility assessments.

The court also declined to grant partial summary judgment on the credit card and related fraudulent preference claims due to the risk of inconsistent findings.

The moving defendants (controlled by the husband) sought leave to intervene in an action brought by the wife's parents against both the husband's and wife's companies for unpaid promissory notes.

The husband argued the wife was wrongfully refusing to defend the action on behalf of her companies.

The court dismissed the motion, finding the wife had a reasonable basis for not defending the claim and the husband failed to establish he was a complainant under the OBCA or acting in good faith.

The moving defendant, the Estate of Alex Bartholomey, brought motions to appoint a litigation administrator and to set aside a default judgment obtained by the plaintiff landlords for commercial lease arrears.

The court appointed the deceased's daughter as litigation administrator, making her jointly and severally liable for costs.

The court dismissed the motion to set aside the default judgment, validating the plaintiffs' order to continue nunc pro tunc and finding that the Estate failed to provide a plausible excuse for the default or an arguable defence on the merits regarding the deceased's liability under an indemnity agreement.

This is a costs endorsement following an appeal and cross-appeal.

The Court of Appeal for Ontario determined that success on both the appeal and cross-appeal was divided, and therefore ordered that each party bear their own costs.

The appellant Bank appealed a summary judgment finding it negligently breached its contract with the respondents regarding a Canada Small Business Financing Loan and a HELOC.

The Court of Appeal allowed the appeal in part, finding the motions judge erred by treating all respondents as one entity when the loan agreement was only with the corporate respondent, 1633092 Ontario Ltd. The Court varied the judgment to reflect that the Bank only breached its contract with the corporate respondent.

The Court dismissed the Bank's request for immediate judgment on the HELOC, referring the issue of set-off and the respondents' counterclaims to trial due to the pitfalls of partial summary judgment.

The landlord appealed decisions of the Landlord and Tenant Board finding that the Residential Tenancies Act applied to various rental units, despite the parties having signed commercial lease agreements.

The LTB found that the true nature of the tenancies was residential, based on representations by the landlord's superintendents and the actual use of the units.

The Divisional Court dismissed the appeal, holding that the LTB has exclusive jurisdiction to determine whether a premise is a rental unit and to ascertain the real substance of the transaction under section 202 of the Act, and that these were findings of fact not reviewable on appeal.

The landlords appealed a Landlord and Tenant Board decision finding that the Residential Tenancies Act applied to a unit leased under a commercial lease agreement.

The tenant used the unit primarily as a living space and incidentally for creating artwork.

The Divisional Court dismissed the appeal, holding that the Board reasonably applied section 202 of the Act to ascertain the true nature of the tenancy, and that the Board's factual findings regarding the predominant use of the unit were not reviewable on an appeal restricted to questions of law.

The defendants brought a summary judgment motion to dismiss claims of unjust enrichment against the Da Costas and solicitor negligence against Allen P. Welman, and to argue that certain monetary claims were statute-barred.

The plaintiff, the Estate of Guido Barberio, alleged that the Da Costas took advantage of the deceased in a below-market value property transfer, aided by Mr. Welman's negligence.

The court dismissed the summary judgment motion, finding genuine issues requiring a trial, particularly concerning the credibility of witnesses, the nature of the relationship between the deceased and the Da Costas, the circumstances surrounding the property transfer, and the discoverability of the negligence claim against the solicitor.

The court emphasized that expanded fact-finding powers were inappropriate given the complex factual matrix and intertwined credibility issues, and that a full trial was necessary for a just resolution.

The appellant appealed the dismissal of a motion for summary judgment in an action brought by the respondents.

The appellant sought to end the Ontario action based on a previously dismissed lawsuit brought by the respondent against the appellant in India relating to the same cause of action.

The appellant invoked res judicata and abuse of process defences, and relied on a provision of the Indian Civil Procedure Code.

The motion judge denied the motion, finding that the respondent had never been served in the Indian action and no disposition had been made on the merits.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's treatment of the Indian law provision or in the application of res judicata and abuse of process doctrines.

Following the settlement of cross-applications alleging shareholder oppression regarding a jointly owned villa property, the parties sought a determination of costs.

The court ordered each party to bear their own costs for the applicant's initial application, as neither achieved success and the matter was resolved via a buyout process.

For the respondents' cross-application, the court awarded partial indemnity costs to the applicant, finding the cross-application lacked merit as the applicant was a minority shareholder incapable of oppressive conduct under the Business Corporations Act.

The defendant moved for summary judgment, arguing that the plaintiffs' claims were barred by Indian procedural law (Order 23, Rule 1(4)) or, alternatively, by Ontario doctrines of res judicata and abuse of process.

This argument stemmed from a prior lawsuit in India, commenced by one of the plaintiffs against the defendant, which was abandoned before service on the defendant and dismissed without a determination on the merits.

The court dismissed the defendant's motion, finding that neither Indian law, which requires service for the procedural bar to apply, nor Ontario law, which requires a decision on the merits for res judicata or actual litigation for abuse of process, precluded the current action.

The plaintiff bank brought a motion for summary judgment to enforce personal guarantees signed by the individual defendants for the indebtedness of their corporation.

The defendants argued their liability should be limited to 25% of the total debt, based on the statutory limit for small business loans and the title of the guarantee document.

The court found the guarantees unambiguously stated the liability was unlimited for non-small business loans, and the bank had no duty to inform the guarantors about future credit facilities.

The motion for summary judgment was granted.

A defendant brought a motion to dismiss an action alleging fraudulent conveyance and to discharge a certificate of pending litigation registered against a matrimonial home.

The moving party argued that the claim was barred by a prior full and final release executed after settlement of related debts.

The court held that interpretation of the release required consideration of the surrounding circumstances and could not be determined without a trial, so dismissal of the action was refused.

However, the court found that the release was a material fact that should have been disclosed when leave to register the certificate of pending litigation was obtained.

Because of this non-disclosure, the certificate of pending litigation was discharged.

The plaintiff moved to set aside a registrar’s administrative order dismissing the action for failure to set the matter down for trial within the required time.

Applying the factors outlined in Reid v. Dow Corning Corp., the court considered the explanation for delay, inadvertence in missing the deadline, promptness in bringing the motion, and prejudice to the defendants.

The court found that the delay resulted from inadvertence, that the plaintiff acted promptly after learning of the dismissal, and that the action had not been abandoned.

Although the defendants argued the claim was statute‑barred and that presumptive prejudice arose from the expiry of the limitation period, the court held the limitation issue could not be determined definitively at this stage and that no substantial prejudice would arise from allowing the action to proceed.

The registrar’s dismissal order was therefore set aside.

The plaintiff bank brought a motion for summary judgment to recover outstanding indebtedness under a revolving demand credit facility extended to a corporate borrower.

Corporate and individual defendants had executed guarantees securing the facility.

The individual guarantors argued the debt arose from a new loan issued in 2009 and therefore fell outside their 2002 guarantees, asserting the original loan had been paid off in 2008.

The court found the evidence established the facility was never extinguished and that the 2009 agreement merely reduced the credit limit rather than creating a new loan.

Given the guarantees covered all present or future indebtedness, the guarantors remained liable and summary judgment was granted.

The garnishee appealed a motion judge's order requiring it to pay 100 percent of the compensation it paid to the debtor to the creditor, until the creditor's judgment was satisfied.

The Divisional Court allowed the appeal, finding that under s. 72 of the Wages Act, 80 percent of a person's wages are exempt from garnishment.

The order was varied to require the garnishee to pay 20 percent of the debtor's compensation to the creditor, while 100 percent of any non-compensation debts or shareholder distributions remained subject to garnishment.

The appellant appealed the dismissal of its counterclaim for professional negligence and breach of contract against the respondent accounting firm.

The motion judge dismissed the counterclaim on a summary judgment motion because the appellant failed to provide direct evidence, relying instead on an affidavit based on information and belief.

The respondent cross-appealed the motion judge's finding that there was a genuine issue for trial regarding the timing of payment of its fees.

The Court of Appeal dismissed the appeal and allowed the cross-appeal, finding no genuine issue for trial regarding the fees and granting summary judgment to the respondent.

The appellant appealed an order dismissing his motion to set aside a consent order that had amended a default judgment against him to include declarations of fraud.

The bank had originally obtained default judgment for a debt based on a personal guarantee, without pleading fraud.

Later, the bank moved under Rule 59.06 to add declarations of fraud, to which the appellant consented based on his solicitor's misunderstanding.

The Court of Appeal allowed the appeal, finding that the motion judge misapprehended the evidence regarding the solicitor's mistake and the bank's reliance on the appellant's representations.

The Court also held that Rule 59.06 cannot be used to amend a judgment to grant relief that was never sought in the original pleadings.