Solomon Ross Fischhoff

This is a costs endorsement from the Court of Appeal for Ontario following an appeal.

The respondents (original plaintiffs) were found entitled to costs.

The court determined that costs should be awarded on a partial indemnity basis, as the appeal was not entirely without merit and the appellants' conduct was not criticized.

Costs were fixed at $12,000, inclusive of disbursements and taxes.

The Superior Court of Justice heard motions and cross-motions arising from four identical actions.

The primary motion was brought by the plaintiffs' lawyers (the "Lawyers") to strike counterclaims asserted against them by the defendants by counterclaim (the "Lenders").

The Lenders' counterclaims alleged conspiracy, intentional interference with economic relations, and champerty and maintenance, and they sought to add a new claim for breach of privacy/misappropriation of confidential information.

The court dismissed the Lenders' motion for leave to tender evidence and granted the Lawyers' motion, striking the counterclaims in their entirety without leave to amend, finding that the claims against the Lawyers were untenable at law and contrary to public policy.

The appellants, a lawyer and his professional corporation, appealed a default judgment obtained against them for knowingly assisting in a client's fraud.

The Court of Appeal for Ontario confirmed its jurisdiction to hear the appeal, treating the motion judge's decision as equivalent to a refusal to set aside a default judgment.

The Court upheld the motion judge's refusal to set aside the noting in default, citing the appellants' bad faith and deliberate delay tactics.

While agreeing that the negligence claim was not properly pleaded, the Court affirmed the finding of liability for knowing assistance in fraud, based on the lawyer's issuance of a misleading "comfort letter" and the disbursement of funds from his trust account despite knowledge of the property's prior sale.

The appeal was dismissed.

The applicant sought leave to issue a Certificate of Pending Litigation (CPL) to halt power of sale proceedings on her home.

She alleged that a mortgage registered against her property was obtained by fraud when an unidentified individual approached her at her home and induced her to sign documents while she was intoxicated and visually impaired.

The respondents argued that a mortgagor cannot obtain a CPL to stop a power of sale without offering to redeem the mortgage.

The court held that where fraud goes to the very formation and enforceability of the mortgage, the rigid rule requiring redemption does not apply.

Balancing the equities, the court granted the CPL to protect the applicant from potential homelessness pending a determination on the merits.

The appellants appealed the dismissal of their anti-SLAPP motion under s. 137.1 of the Courts of Justice Act, which sought to dismiss a defamation action brought by the respondent.

They also appealed the motion judge's award of costs.

The Court of Appeal upheld the motion judge's finding that the impugned Facebook post did not relate to a matter of public interest, concluding it was a private business dispute despite references to masks and a potential class action.

The court also affirmed the costs award, finding no error in the motion judge's discretion to award costs given the perceived misuse of the anti-SLAPP provision.

The defendants brought an anti-SLAPP motion to dismiss the plaintiff's action, which was denied.

In this costs decision, the plaintiff sought full or substantial indemnity costs.

The defendants argued no costs should be awarded based on the presumption in s. 137.1(8) of the Courts of Justice Act.

The court found it appropriate to depart from the presumption and award costs to the plaintiff, noting the underlying dispute was purely private and the defendants' voluminous motion record was disproportionate, suggesting a misuse of the anti-SLAPP rule.

The defendants were ordered to pay $80,000 in costs.