Stephen Roger Barbier

This costs endorsement follows a decision upholding the validity and enforceability of second and third mortgages registered against a property owned by a company in which the applicants were shareholders.

The court awards substantial indemnity costs to the successful third mortgagee, finding the amount claimed reasonable and declining to include the legal costs of the second mortgagee and the sale solicitor as part of the costs of the application.

The appellant tenant appealed an order granting relief from forfeiture of a commercial lease, challenging findings regarding its use of the premises, the landlord's refusal to consent to a lease assignment, an order to remove an abandoned truck, and an allegation of judicial bias.

The Court of Appeal found no palpable and overriding error in the motion judge's findings that the tenant breached the lease's use provisions by constructing kitchen cabinets, that the landlord was entitled to refuse the assignment due to the breach, and that the truck removal order was valid.

The court also dismissed the bias allegation, interpreting the motion judge's comments as an attempt to minimize future acrimony.

The appeal on costs was denied as leave was not sought and the award was within the motion judge's discretion.

The appeal was dismissed in its entirety.

The applicants sought urgent interim relief against a respondent for alleged misappropriation of corporate assets of a company undergoing court-ordered winding-up.

The court addressed jurisdiction, finding the issues had not merged in a prior final order.

While a strong prima facie case for some alleged improper payments was found, the court determined no irreparable harm was established, declining to grant immediate mandatory repayment.

Instead, it clarified rules for future expenses and expanded the Sales Officer's powers to investigate and reconcile the disputed payments as part of the ongoing winding-up process.

This is a costs endorsement for three related applications concerning shareholder rights and oppression remedies in private companies (Producers Planning Group Ltd., The Benefits Group Inc., and Thornbridge Capital Inc.).

The main applications resulted in an order for the sale of businesses and assets of two companies, while claims for oppression remedies were dismissed for all parties.

The court found that all parties had substantial success as respondents in opposing the oppression claims made against them.

Due to the overlapping issues and the divided success, the court ordered no costs for any of the three applications, as the costs of successful respondents would largely offset the costs for which they would be liable as applicants in other applications.

The defendants moved for partial summary judgment to dismiss claims based on the expiry of limitation periods and the alleged non-existence of an oral trust agreement.

The plaintiff opposed, asserting fraudulent concealment and the existence of an oral, resulting, or constructive trust.

The court dismissed the motion, finding that genuine issues requiring a trial existed, particularly concerning the credibility of the parties, the nature of the alleged trust, and the application of limitation periods.

The court emphasized that partial summary judgment would not achieve a faster or cheaper resolution and risked inconsistent findings due to the intertwined factual and credibility disputes.

The Court of Appeal for Ontario issued a costs endorsement following an appeal brought by the Debtor, Wayne Biggar.

The Court found that Mr. Biggar's appeal was brought to the wrong court and constituted an obvious delay tactic.

As a result, the Creditors, Jack Pinder, Victor Dusik, and Innotech Safety Solutions Inc., were awarded substantial indemnity costs fixed at $11,500, inclusive of disbursements and applicable taxes, payable by Mr. Biggar within five days.

The respondents (creditors) moved to quash an appeal brought by the appellant (debtor) from a garnishment order, arguing that the order was interlocutory and therefore not appealable to the Court of Appeal.

The Court of Appeal agreed, finding that the garnishment order was an interlocutory step in an ongoing oppression action, not a final disposition of the parties' rights or a discrete proceeding.

Consequently, the Court lacked jurisdiction to hear the appeal, which properly lay with the Divisional Court.

The appeal was quashed.

This endorsement addresses the costs following a four-day trial where the plaintiff, Infinity Construction Inc., was completely successful, obtaining judgment for over $1.19 million plus interest.

The plaintiff sought costs on a substantial indemnity scale, arguing the defendants' deliberate withholding of known owed funds was vexatious and tactical.

The defendants argued for partial indemnity costs, disputing the plaintiff's hours and the applicability of Rule 49.10.

The court found that Rule 49.10 was not engaged as the plaintiff's offer was not made seven days before trial.

While the defendants' conduct in withholding payment came close to reprehensible conduct, it did not meet the high threshold required for substantial indemnity costs in these circumstances.

Exercising its discretion under the Courts of Justice Act and Rule 57.01, the court found the plaintiff's counsel's fees reasonable and awarded the plaintiff $175,000 inclusive of HST on a partial indemnity basis.

The respondents brought a motion to quash an appeal from orders dissolving an interlocutory injunction and dismissing a contempt motion.

The Court of Appeal granted the motion to quash, finding that the orders were interlocutory in nature and therefore the proper appeal route was by leave to the Divisional Court, not direct appeal to the Court of Appeal.

Costs were awarded to the moving party.

This decision concerns a costs award following interlocutory motions in a contentious shareholder dispute.

The Plaintiffs had previously obtained an interlocutory injunction and subsequently brought a contempt motion, while the Defendants moved to dissolve the injunction and sought declaratory relief.

The court dismissed the Plaintiffs' contempt motion and dissolved the injunction, ordering the Plaintiffs to pay costs for their unsuccessful motions.

The Defendants sought substantial indemnity costs of over $217,000 or partial indemnity of $149,000.

The Plaintiffs requested an offset.

The court ultimately awarded the Defendants $110,000 on a partial indemnity basis, finding them to be the successful party on the relevant motions, and highlighted the "useless litigation" and high level of distrust between the parties.

This decision addresses competing motions in an oppression remedy action among shareholders of Innotech Safety Solutions Inc. The defendants moved to dissolve an interlocutory injunction and sought declarations regarding minority shareholders' voting rights.

The plaintiffs brought a cross-motion for contempt due to alleged non-compliance with disclosure orders and sought to continue the injunction.

The court dismissed the contempt motion, finding no willful disobedience and that any contempt had been purged.

The interlocutory injunction was dissolved, as the factual basis for its continuance was not established.

The court suggested that a winding-up application might be a more appropriate remedy given the corporate dysfunctionality.

The appellant, Western Troy Capital Resources Inc., retained the respondent, Genivar Inc., an engineering consulting firm, to conduct a feasibility study for a mineral property at MacLeod Lake in Northern Quebec.

The trial judge found that Genivar breached its duty of care and made negligent misrepresentations, awarding damages of $1.25 million.

On appeal, Western Troy sought to increase the award to approximately $2.97 million or $2.15 million, arguing the trial judge failed to adequately explain his damages assessment.

The Court of Appeal upheld the trial judge's award, finding it was firmly grounded in evidence and that the trial judge properly considered speculative elements including the timing of when the resources estimate should have been completed, which expenses would have been incurred regardless, and the likely reaction of Western Troy's management to a timely report.