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 applicants, shareholders in Golden Ocean Investment Corporation, brought a motion challenging the validity of second and third mortgages registered against a property owned by the corporation.

They alleged the sole director executed the mortgages without authority as part of a fraud, and that the mortgagees were willfully blind to badges of fraud.

The court dismissed the motion, finding the mortgagees were bona fide purchasers for value who conducted proper legal due diligence.

The court held that taking a financial or underwriting risk does not constitute willful blindness to fraud, and the mortgagees were entitled to rely on the director's actual and ostensible authority.

The moving parties brought a motion to vary an order dated August 25, 2023, and sought costs on a motion for leave to appeal.

The Divisional Court dismissed the motion to vary the order and determined that no costs should be awarded on the motion for leave to appeal.

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 moving parties brought a motion for leave to appeal an order of Perell J. dated April 14, 2023.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $5,000 all inclusive.

The moving parties brought a motion for leave to appeal the order of Cavanagh J. dated March 28, 2023.

The responding parties did not file any materials.

The Divisional Court dismissed the motion for leave to appeal.

As the responding parties did not participate, no order as to costs was made.

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.

The moving parties brought a motion for leave to appeal an order of Osborne J. dated January 19, 2023.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the respondent.

The applicants sought continuation of a Mareva injunction, a timetable for the underlying proceeding, and a contempt declaration arising from an asset disclosure order in a complex debt collection dispute tied to real estate development projects and alleged personal guarantees.

The respondents cross-moved to vacate earlier without-notice and interim injunctive orders.

The court held that the applicants failed to make the full and fair disclosure required on a without-notice injunction motion and, in any event, failed to establish the substantive requirements for Mareva relief, including a strong prima facie case against the individual respondents and a sufficient evidentiary basis for prejudgment execution.

The contempt motion was dismissed because non-compliance and wilfulness were not proven beyond a reasonable doubt.

The earlier orders were vacated, the proceeding was converted into an action, and costs were made costs in the cause.

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.

Three related applications were brought concerning shareholder disputes in three closely held corporations operating as insurance brokerages and an investment holding company.

The applicants sought declarations of oppression and various remedial orders, including share buyouts and winding up.

The court dismissed all claims of oppression, finding no conduct that violated reasonable expectations.

However, the court found that the shareholders of two of the operating companies were hopelessly deadlocked and unable to work together.

Consequently, the court ordered the winding up of those two companies under the just and equitable ground of the Business Corporations Act, while dismissing the request to wind up the investment holding company.

The defendant Terex Corporation brought a motion for summary judgment to be let out of the action.

The plaintiff ultimately did not oppose the summary judgment but disputed the defendant's claim for costs.

The court found the plaintiff liable for costs because it kept the defendant in the litigation despite being unable to establish liability.

The court rejected the plaintiff's argument that the defendant should not recover costs due to joint representation with other defendants.

Costs were awarded to the defendant on a partial indemnity basis, fixed at $20,000.

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.

The plaintiff construction manager brought an action against the defendant developer for unpaid invoices totaling over $1 million.

The defendant counterclaimed for delay damages, costs to rectify deficiencies, and return of construction management fees, alleging the plaintiff failed to perform its contractual obligations.

The court found that the parties had varied the written contract by their conduct and that the plaintiff was not responsible for any of the project delays, which were caused by the defendant's failure to provide a completed design and obtain permits on time.

The court also held that the plaintiff was not liable for construction deficiencies, as those were the responsibility of the trades.

The plaintiff was awarded $644,871.69 for unpaid invoices, with deductions made for overcharges and unproven payments.

The moving parties brought a motion for leave to appeal from an order of Gilmore J. dated May 19, 2020.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to the responding party in the fixed amount of $5,000, inclusive, payable forthwith.

The applicant obtained ex-parte Mareva and Norwich orders against his brother and sister-in-law, alleging they mismanaged a jointly owned corporation and breached an oral trust agreement.

The respondents moved to set aside the orders, arguing material non-disclosure and failure to meet the evidentiary threshold.

The court agreed, finding the applicant failed to disclose relevant correspondence and that contradictory evidence precluded a strong prima facie case.

However, given evidence of potential misappropriation, the court ordered a forensic accounting and froze the respondents' real property pending the investigation.

The applicants brought a motion for leave to appeal the orders of Perell J. dated March 29, 2019, and June 5, 2019.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondents in the fixed amount of $11,000.

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.