Stephen Schwartz

MarshallZehr Group Inc. ("MZ") sought substantial indemnity costs of $55,266.78 after successfully obtaining summary judgment against Ideal Developments Inc. and related entities ("Ideal") for $508,071.09 and dismissal of Ideal's counterclaim.

MZ based its claim on a contractual provision in the Commitment Letter and, alternatively, an unaccepted Offer to Settle.

Ideal proposed $36,273 on a partial indemnity basis.

The court, while acknowledging the contractual right to substantial indemnity, exercised its discretion to award costs on a basis between partial and substantial indemnity.

This decision was influenced by the unclear language of the Commitment Letter, MZ's muddied termination of the loan, and the fact that MZ had already made a significant return.

The court awarded MZ $40,000, all inclusive.

MarshallZehr Group Inc. (MZ) brought a summary judgment motion against Ideal Developments Inc. (Ideal) seeking payment of charges after MZ cancelled a $15.2 million loan commitment and dismissal of Ideal's counterclaim for alleged wrongful termination.

The court found that MZ lawfully cancelled the loan pursuant to a cancellation provision in the commitment letter, which did not require notice or a cure period as argued by Ideal under the default provisions.

The court granted summary judgment to MZ for $508,071.09, comprising standby interest, lender's fees, and expenses, and dismissed Ideal's counterclaim.

The applicant tenants brought an application for the interpretation of a commercial lease regarding parking rights and the payment of additional rent for utilities.

The court held that the lease clearly restricted the use of outdoor parking spaces to customers and visitors, denying the tenants' employees the right to park there.

However, regarding electricity costs, the court found the lease ambiguous and applied the contra proferentem rule against the respondent landlord, ruling that the tenants should pay based on actual usage rather than a proportionate share of square footage.

Success being divided, the parties were ordered to bear their own costs.

The applicants, victims of extensive fraud involving forged cheques and unauthorized online banking, sought a declaration that their insurer, State Farm, was obligated to provide coverage.

While State Farm accepted coverage for losses from forged cheques, the central issue was whether losses from unauthorized online banking transactions fell under the policy's "Forgery or Alteration" clause.

The court determined that online banking transactions were analogous to a direct transfer of money, not a promise to pay money, and therefore did not fall within the scope of the "Forgery or Alteration" clause.

The application for coverage of online banking losses was dismissed.

The applicant sought an interlocutory injunction to enforce a restrictive covenant preventing the respondent from operating a retirement home.

The court applied the RJR-MacDonald test, finding that while a serious question existed, the applicant failed to demonstrate irreparable harm.

The balance of convenience also weighed against granting the injunction due to the potential harm to vulnerable third-party residents.

The application for an interlocutory injunction was dismissed, and the balance of the application was adjourned.

Costs were fixed at $35,000.00 for the respondent.

The plaintiff, Aldgate Construction (1988) Limited, brought a summary judgment motion against the defendants, Noreast Foods Ltd. and its guarantor Zi Zhong Wu, for unpaid rent and breach of repair covenants under a commercial lease.

Aldgate sought damages of $105,356.88 and dismissal of Noreast's $1,151,421.99 counterclaim for alleged unlawful termination.

The court granted summary judgment in part for Aldgate in the main action, awarding $79,196.52, finding no genuine issues requiring a trial regarding the breaches of lease and damages.

However, the court dismissed Aldgate's motion to summarily dismiss the counterclaim, finding that genuine issues requiring a trial existed regarding the lawfulness of Aldgate's re-entry and any consequential damages suffered by Noreast.

The court also specified undisputed material facts for the counterclaim to streamline the subsequent trial.

The court issued a costs endorsement following a one-day trial of two construction lien actions.

The lien claimants, Hogg Fuel & Supply Limited and Absolute Electric, obtained modest judgments against Home Trust Company and larger judgments against the owners and general contractor.

Claims against Centurion Mortgage Capital Corporation were dismissed.

The court applied Rule 49.10(2) of the Rules of Civil Procedure, finding that Home Trust Company's settlement offers were more favourable than the judgments obtained by the lien claimants.

Consequently, Hogg Fuel and Absolute Electric were awarded partial indemnity costs from Home Trust up to the date of the offers, and Home Trust was awarded partial indemnity costs from them thereafter.

Centurion was awarded partial indemnity costs from Hogg Fuel and Absolute Electric for the entire action.

The court rejected the request for substantial indemnity costs, reiterating that such awards require either Rule 49.10 conditions or a clear finding of reprehensible conduct, neither of which was present.

Costs against the non-participating owners and general contractor were also fixed.

The plaintiff, Surinder Singh Manchanda, sought leave under Rule 1.08(5) to give evidence and participate in the trial by videoconference from Thailand, due to repeated refusals of his Temporary Resident Visa applications.

The defendants opposed the request.

The court denied the motion, finding that the plaintiff had not demonstrated all reasonable efforts to secure personal attendance, citing his failure to truthfully answer visa application questions and not pursuing judicial review.

Leave was granted to bring the motion again before the trial judge.

This trial involved two consolidated construction lien actions concerning the priority of lien claimants (Hogg Fuel & Supply Limited and Absolute Electric) against mortgagees (Home Trust Company and Centurion Mortgage Capital Corporation) due to a deficiency in the statutory holdback.

The owners and general contractor failed to retain the required holdback.

The court determined that the lien claimants' entitlement to priority for the basic holdback expired because their liens were not preserved within 45 days of the Certificate of Completion's publication.

Consequently, the lien claimants were granted priority over the Home Trust mortgage only for the deficiency in the finishing holdback (10% of their claims).

The Centurion mortgage was deemed not a construction mortgage, thus no priority applied against it.

Full judgment for the lien amounts was awarded against the non-appearing owners and general contractor.

The Court of Appeal reversed the trial judge's finding that the purchaser (241 Ontario) had actual notice of a defect in the power of sale process.

The trial judge had conflated actual knowledge with constructive knowledge, finding that receipt of information suggesting the need for inquiry constituted actual notice.

The appellate court clarified that actual notice requires actual knowledge of the defect itself, not merely knowledge of facts that might prompt inquiry.

The court held that 241 Ontario was a bona fide purchaser for value without notice and could rely on the protections of the Land Titles Act.

The court also found that sections 35 and 36 of the Mortgages Act do not limit the right to rely on registration under the Land Titles Act, and that these provisions provide complementary methods of protecting bona fide purchasers.

The post-sale mortgagees' interests were upheld, and Ginkgo's mortgage was found to be valid.

Following a trial of an oppression application and breach of contract action regarding a real estate development project, the parties made written submissions on costs.

The court found that neither party achieved substantial success, as the applicant failed to prove damages for failure to fund the project, while the respondents were found to have acted oppressively.

Given the divided success and the fact that both parties' versions of events were largely rejected, the court ordered that each party bear their own costs.

Following a finding of oppression, the court determined the appropriate process and parameters for valuing the respondent's shares in a real estate development corporation to effect a buyout by the applicant.

The court declined to appoint separate valuators, instead directing a reference to a master to determine the share price.

The court set the valuation date as the date of the oppression decision, rather than an earlier date proposed by the applicant, and provided guidance on specific adjustments including equalization of costs and the treatment of the property's lapsed site plan approval.

The appellant mortgagee appealed a judgment of the Superior Court of Justice regarding the interpretation and effect of a forbearance agreement between the mortgagee and mortgagor.

The application judge found that the forbearance agreement gave the mortgagee complete control over the mortgaged property and its business operations, including control over sale, capital improvements, tenant relations, and cash flow.

The Court of Appeal upheld the application judge's findings, holding that the forbearance agreement, as interpreted and applied by the parties, resulted in the mortgagee obtaining total control over the property.

The court emphasized that its findings were limited to the specific facts of the case and that not every forbearance agreement places a mortgagee in control.

The Applicants brought a motion seeking an accounting of loans and a determination regarding the collateral nature of a $650,000 mortgage (the "Castlemore Mortgage") against 4415 Castlemore Road, Brampton, in relation to a $700,000 mortgage (the "Wilson Mortgage") against 1031 Wilson Avenue, Toronto.

While the accounting issue was resolved, the central dispute concerned whether the Castlemore Mortgage was collateral to the Wilson Mortgage, and if an amendment deleting the collateral provision was valid.

The court found that the Castlemore Mortgage was not collateral security for the Wilson Mortgage due to a valid amendment registered in April 2015, and that the Respondent Graff was entitled to rely on this amendment, despite the Applicants' claims of lack of authority by the bare trustee.

The Applicants' motion was dismissed.

The appellant appealed an order of the Superior Court of Justice dated October 13, 2015.

The Court of Appeal found that the judge below articulated the correct legal principles and made findings of fact and mixed fact and law that were fully supported by the record.

The court was not persuaded by the appellant's arguments and dismissed the appeal.

The respondent was awarded costs in the amount of $9,000, to be deducted from the appellant's entitlement to funds held in trust by respondent's counsel.

The applicants commenced an application seeking a compulsory purchase of their shares or winding up of the companies, along with an initial motion for an interim receiver.

After receiving financial disclosure, the applicants abandoned the initial motion and brought an amended motion for an inspector, which they later also abandoned in favour of different relief.

The respondents sought costs thrown away for the abandoned initial motion and costs for the amended motion.

The court awarded the respondents costs thrown away 'on account' and costs of the amended motion on a partial indemnity basis, noting the applicants' approach of seeking draconian relief only to abandon it caused unnecessary legal work.

The applicant law firm, Morse Shannon LLP, sought charging orders against any amounts recovered by the plaintiffs in two personal injury actions (Hughes and Nasir) where it had acted as agent counsel for the respondent solicitor, Fancy Barristers P.C. and Hassan A. Fancy.

The agency agreements were terminated, and the applicant's accounts for fees and disbursements remained unpaid.

The court granted the charging orders, finding that the applicant's work was instrumental in recovering or preserving the clients' property and that there was sufficient evidence that the accounts would not be paid.

The court also addressed the respondent's irrelevant allegations of misconduct and awarded costs to the applicant.

This costs endorsement follows a hybrid trial where the applicants were largely successful against several respondents concerning an invalid power of sale, but unsuccessful against Ginkgo Mortgage Investment Corporation.

The court awarded partial indemnity costs to the applicants against the unsuccessful respondents, with a several order for payment.

The court also fixed partial indemnity costs payable by the applicants to Ginkgo, declining to issue a Sanderson order after applying the two-step test.

The applicants sought declarations that an agreement of purchase and sale entered by the mortgagee during a power of sale process was a nullity and requested authorization to discharge several mortgages by payment into court.

The applicants had requested a mortgage discharge statement under s. 22(2) of the Mortgages Act but the mortgagee failed to provide one within the statutory time.

The court held the request constituted a valid demand for a statement and that the mortgagee lacked a reasonable excuse for non-compliance.

As a result, the mortgagee’s enforcement rights were suspended under s. 22(3), rendering the subsequent agreement of purchase and sale ineffective.

The court further ordered that the mortgages be discharged upon payment of the claimed amount into court pursuant to s. 12 of the Mortgages Act.

The applicant sought an order requiring consumer reporting agencies to remove debts older than two years from his credit report, arguing that once the two‑year limitation period under the Limitations Act, 2002 expires, such debts cannot be legally enforced and should not be reported.

The court considered whether the limitation period governing civil proceedings should apply to the time frame for reporting debts under the Consumer Reporting Act.

The court held that the statutes serve distinct purposes: the Limitations Act governs the enforcement of legal claims, while the Consumer Reporting Act regulates consumer credit reporting.

Because neither statute incorporates the other, the two‑year limitation period does not restrict the reporting of debts under the Consumer Reporting Act.

The applicant’s Charter argument also failed because the actions complained of involved private entities rather than governmental action.