Simon Schneiderman

The court fixed costs following a nine-day construction lien trial where success was mixed.

Northridge Homes Ltd. and sub-trade plaintiffs (CAAJ Construction Inc., 2225043 Ontario Inc., and 2142043 Ontario Inc.) sought substantial costs, while the defendants argued for no costs or significantly reduced amounts due to divided success and proportionality.

The court found that all parties shared blame for the protracted trial and applied the principle of proportionality, noting that costs should be fair and reasonable, not merely a mechanical calculation of hours.

The court awarded Northridge Homes Ltd. $60,000 in total costs and the sub-trade plaintiffs $11,150 in total costs, significantly less than requested.

This case involved two consolidated actions concerning construction and renovation work.

Northridge Homes Ltd. sued Manjit and Harjinder Sandhu for payment and a construction lien.

Separately, subcontractors CAAJ Construction Inc., 225043 Ontario Inc., and 2142043 Ontario Inc. sued the Sandhus and Northridge for payment and liens.

The court found a valid contract between Northridge and the Sandhus, and that Northridge's lien was timely and valid.

Most of the Sandhus' claims for set-off due to deficiencies were rejected due to lack of proof and failure to plead them.

The court awarded Northridge $32,401.84 and the subcontractors their full claimed amounts, declaring valid liens against the Sandhus' property.

The parties, former and remaining trustees of a Gurdwara, entered into Minutes of Settlement to resolve a dispute over the sale of the property.

The settlement required the remaining trustees to pay $1,734,584 into trust, representing alleged loans made by the departing trustees, subject to an audit.

A court-appointed accountant reviewed the financial records and stratified the alleged loans into three levels of evidentiary quality.

The court reviewed the accountant's report and the evidence, rejecting many of the undocumented or poorly documented loan claims.

The court determined that the departing trustees proved bona fide loans totaling $820,131.69, after deducting repayments.

The court heard a motion for directions regarding the disposition of settlement trust monies held following a dispute between trustees of a religious organization.

A third-party creditor sought standing and payment of the monies, arguing they were the source of the funds.

The court denied the creditor standing, finding they had no direct interest in the accounting between the trustees.

The court granted standing to the organization and the two trustees who paid the settlement monies, and directed that an accounting hearing proceed despite the organization being in receivership.

This decision addresses the costs for a three-day trial where the plaintiffs were largely successful.

The court considered the plaintiffs' Rule 49 offer to settle, which they argued triggered substantial indemnity costs, and the defendants' arguments against it, including the implied withdrawal of the offer by subsequent settlement discussions.

The court found that the plaintiffs' Rule 49 offer was not implicitly withdrawn by subsequent non-Rule 49 offers, distinguishing prior case law.

The court also assessed the reasonableness of the plaintiffs' claimed costs under Rule 57.01, reducing them due to excessive lawyer time, duplication of effort, and disallowing a specific disbursement for a legal opinion deemed unnecessary.

Ultimately, the defendants were ordered to pay the plaintiffs $147,966.49 in costs.

This endorsement resolves five outstanding issues between the parties following a prior judgment (2017 ONSC 5680).

The court determined that the quantum of the judgment should not be deferred despite ongoing related proceedings, that simple interest applies to the loan amounts, and accepted the defendants' position on pre-judgment interest for the deposit.

The court also affirmed that Tzimas J. remains the case management judge for outstanding cross-claims and lease issues, and ordered the Certificate of Pending Litigation (CPL) to be removed at the plaintiffs' expense.

The plaintiffs entered into a complex series of agreements to purchase a commercial property from the defendants.

The plaintiffs advanced approximately $2 million to the defendants prior to closing.

The transaction failed to close on the extended closing date of September 18, 2015.

The court found that neither party was ready, willing, and able to close on that date, as the plaintiffs lacked financing and the defendants' tender was deficient.

The court determined that $1,735,000 of the advanced funds was a loan bearing 12% interest, for which the individual defendants were jointly and severally liable, and the remaining $225,000 was a deposit.

The court ordered the return of all funds to the plaintiffs, lifted the certificate of pending litigation, and dismissed the defendants' counterclaim for damages.

The defendant Sikh Lehar International Organization brought a motion to set aside, discharge, or lift a Certificate of Pending Litigation (CPL) registered against its property at 79 Bramsteele Road.

The CPL was obtained by the plaintiffs, Sukhinder Sandhu and 2207190 Inc., who claim to have purchased the property and seek specific performance.

Sikh Lehar needed to refinance significant mortgages maturing in November 2016 and argued the CPL prevented this.

The court found that the CPL should not be fully discharged as the plaintiffs had a reasonable claim to an interest in the property and specific performance was a potential remedy.

However, the court determined that the equities favored modifying the CPL to permit refinancing up to $6,500,000.00, with the new mortgage taking priority, to prevent significant prejudice to Sikh Lehar and potential foreclosure.

The plaintiffs' litigation conduct and delay in registering the CPL were not deemed sufficient grounds for its discharge.

The moving party, who was previously found to be a special party under Rule 2(1) of the Family Law Rules, brought a motion to appoint his son as his legal representative.

The responding party opposed the appointment, alleging conflicts of interest, financial dependence, and unsuitability.

The court reviewed the affidavit evidence and found the proposed representative to be suitable, noting that the responding party's concerns were largely based on conjecture and speculation.

The motion to appoint the legal representative was granted.

The appellant sought to recover funds allegedly stolen by a fraudster and then paid as restitution to an earlier victim, advancing tracing, knowing receipt, and unjust enrichment claims against an individual respondent.

The Court of Appeal majority held there was no basis to interfere with the trial judge’s exclusion of substantive hearsay statements from the fraudster, and no palpable and overriding error in the finding that a CAD$150,000 restitutionary payment was not traced on a balance of probabilities to the appellant’s funds.

As to a separate CAD$40,000 payment, the majority held that even assuming tracing into the corporate respondent’s account, there was no basis for imposing personal liability on the individual respondent because the corporate tax debt paid was not his personal liability at the time.

The appeal was dismissed with costs, over a dissent that would have allowed the claim for CAD$190,000.

On a motion under Family Law Rule 11(3), the applicant sought to add his former mother-in-law and adult children as respondents and to expand claims arising from alleged misuse of settlement funds and family property following separation and divorce.

The court held there was no limitation period for the support claim against the adult children and permitted that amendment.

The proposed fraudulent conveyance claim concerning one property was found to be governed by a two-year limitation period and was refused as clearly statute barred.

However, the proposed constructive trust and related claims concerning two other properties were allowed because there was a live factual and credibility dispute over discoverability.

The related civil action was ordered transferred to Family Court to be heard together with the family proceeding, subject to the exclusion of the barred Wendell claims.

The moving defendant sought leave to amend its defence in a construction defect action to plead that the owner’s covenant to insure barred the owner’s claim and entitled the moving party to indemnity.

Applying Rule 26.01, the court held that leave to amend is mandatory absent prejudice that cannot be compensated by costs or an adjournment, and found that the asserted prejudice arising from delay, settlement decisions, and possible claims against former counsel was not sufficient.

The court also held that the proposed insurance-based defence had arguable merit under construction law authorities recognizing that a contractual covenant to insure can shift the risk of project damage.

The amendment was permitted, including a paragraph claiming indemnity for defence costs and apportioned damages, but without prejudice to limitation arguments.

This was an addendum to a family law costs decision following a motion to change.

The court reviewed reply costs submissions that had been timely delivered by the applicant but were not before the judge when the original costs decision was released.

After considering arguments concerning alleged bad faith, offers to settle, proportionality, hourly rates, disbursements, enforcement as support, impecuniosity, and alleged joint and several liability, the court held that none affected the original ruling.

The prior costs decision was confirmed without alteration.

This was a costs decision following a trial of a motion to change involving spousal support reduction, COLA arrears, and life insurance security, as well as a related disclosure motion against the applicant's wife.

The court held that the respondent was the successful party and that her October 4, 2014 offer was as favourable as or more favourable than the trial result within the meaning of r. 18(14) of the Family Law Rules.

Applying rr. 18 and 24, the court awarded the respondent partial indemnity costs to the offer date and full recovery thereafter, while reducing claimed trial hours as excessive.

The court also made no order as to costs for the June 26, 2014 disclosure motion due to divided success and fixed the applicant's thrown-away costs for the April 15, 2014 attendance at $900.

Net costs were fixed at $79,100 all inclusive in the respondent's favour.

The applicant mother sought a stand-alone order for financial disclosure from the respondent father, who is obligated to pay child support under a domestic contract.

The parties had agreed that future disputes concerning child support would be dealt with by arbitration.

The applicant sought the respondent's tax returns, notices of assessment, and financial statements from his company to assist in determining whether to claim a change in child support due to material change in circumstances.

The respondent refused disclosure, arguing it was irrelevant because the support amount was not determined by reference to his income and the parties agreed support would not be varied before January 2016.

The court dismissed the motion, finding that section 25 of the Child Support Guidelines applies only to court orders for child support, not to domestic agreements, even when registered with the court.

The court noted that the applicant could seek disclosure through the pending arbitration process.

The appellant law firm appealed a summary judgment dismissing its action for unpaid legal fees.

The motion judge found the action was a nullity under section 2(1) of the Solicitors Act because it was commenced before the final account was delivered, and that the claim was statute-barred under the Limitations Act, 2002.

The Divisional Court dismissed the appeal, holding that the motion judge made no error in law in allowing the defendants to amend their pleadings, finding the action a nullity, and concluding there was no genuine issue requiring a trial.

The plaintiff was defrauded by its employee, who used some of the stolen funds to pay criminal restitution to his former employer, whom he had previously defrauded.

The plaintiff sued the former employer and its principal for knowing receipt and unjust enrichment, seeking to trace and recover the funds.

The court dismissed the action, finding that the plaintiff could not reliably trace the funds, the defendants lacked constructive knowledge of the second fraud when they received the payments, and there was a valid juristic reason for the defendants' enrichment.

Following earlier reasons on an application concerning rights under the Residential Tenancies Act, 2006, the court determined the issue of costs.

The applicant argued that the respondent’s claimed costs were excessive due to court waiting time and time spent preparing brief cost submissions.

The court agreed the matter did not warrant substantial indemnity costs and instead assessed costs on a partial indemnity basis.

After reviewing both parties’ submissions and the bill of costs, the court fixed costs at a reduced amount payable to the respondent’s solicitors.

The defendant brought a motion under Rule 19.08 of the Rules of Civil Procedure to set aside a default judgment obtained by the plaintiff bank.

The court considered whether the motion was brought promptly, whether the default had a plausible explanation, and whether the defendant demonstrated an arguable defence on the merits.

The defendant admitted service but explained her failure to respond by reference to involvement in other litigation, which the court held did not constitute a reasonable explanation.

The court further found that the proposed defences relating to alleged loan agreement defaults, account transfers, and excessive costs did not raise arguable issues.

Concluding that the interests of justice did not favour relief, the court dismissed the motion.

A tenant brought an application seeking a declaration that the Landlord and Tenant Board lacked jurisdiction to hear a landlord’s arrears of rent application because the tenant had vacated the unit before the hearing and because the named landlord was allegedly not a legal entity.

The court considered the interpretation of s. 87(1) of the Residential Tenancies Act, 2006 and the scope of the Board’s authority.

The court held that jurisdiction is established if the tenant was in possession of the rental unit when the landlord’s application was filed.

Issues relating to jurisdiction or the identity of the landlord should be raised before the Board itself.

The application was dismissed as the proper forum to determine the issues was the Landlord and Tenant Board.