Shelley Babin

The plaintiff moved to set aside the registrar’s automatic dismissal of an action alleging misappropriation of investment funds and to transfer the place of trial from Toronto to St. Catharines.

The dismissal was set aside on consent, as the motion had been brought before the dismissal order was issued and procedural steps had continued.

Applying Rule 13.1.02(2)(b) of the Rules of Civil Procedure, the court weighed convenience, trial scheduling, and access to justice considerations.

Despite several defendants and counsel being located in Toronto, the court found the plaintiff’s health issues and limited financial means were significant factors favouring transfer.

The action was therefore ordered transferred to St. Catharines in the Central South judicial district.

The appellant, a major unitholder in a real estate investment trust, sought declarations that the trust's trustees were removed from office by written consents and therefore lacked authority to close a private placement.

The application judge dismissed the application, finding that even if the consents were valid, the trustees continued in office until replaced and acted within the ordinary course of business by closing the previously agreed-upon private placement.

The Court of Appeal dismissed the appeal, declining to interpret the hypothetical effect of the written consents and agreeing that the trustees were contractually bound to close the transaction, which constituted acting within the ordinary course of business.

The plaintiff sought costs on a partial indemnity basis following the dismissal of the defendants' motion for leave to appeal an interlocutory injunction.

The plaintiff claimed $45,391.40 inclusive of GST and disbursements, while the defendants argued $25,000 was fair and reasonable.

The court noted that much of the work had already been prepared for the original injunction motion.

Applying Rule 57.01(1), the court fixed costs at $28,627.40, payable jointly and severally by the defendants.