Simon Joseph Adler

The appellant, the directing mind of the plaintiff company, appealed two costs orders made against him personally.

The motion judge had awarded substantial indemnity costs against the appellant for both the dismissal of the company's claim and the failure of the appellant's summary judgment motion on the defendants' counterclaim.

The Court of Appeal allowed the appeal in part, setting aside the costs order relating to the company's claim because the company was not a sham or 'man of straw' used to shield the appellant from liability.

However, the court upheld the costs order relating to the counterclaim, as the appellant was a party to that proceeding and the summary judgment motion was unreasonable.

The appellant appealed an order striking their statement of claim.

The Court of Appeal allowed the appeal, finding that while the plea of fraudulent misrepresentation was untenable, the factual allegations were capable of establishing an absence of good faith.

The court held that the novel cause of action in negligence was not plain and obvious to fail, and permitted it to proceed.