Stephen Schwartz

Following a successful summary judgment motion where the plaintiff recovered an investment, the parties could not agree on costs.

The plaintiff sought partial indemnity costs of $30,394.56, which the defendants argued was disproportionately high compared to actual fees paid.

Applying the principles of proportionality and fairness, the court fixed the plaintiff's costs at $23,000 inclusive of disbursements and HST.

The plaintiff invested $100,000 in a mortgage syndication administered by the defendant corporation.

The defendant, acting as the plaintiff's agent, discharged the mortgage on the original project lands and transferred it to another property without the plaintiff's knowledge or consent.

The plaintiff lost her investment when the related companies entered CCAA proceedings.

On cross-motions for summary judgment, the court found that while the defendant was not a borrower obligated to repay the loan, it breached the subscription agreement by transferring the mortgage without authorization.

The plaintiff was awarded damages of $81,250, representing her initial investment less interest payments received.

This is a costs endorsement following an appeal where the appellants, though not fully successful on the merits, significantly reduced the judgment amount against them.

The court considered the parties' respective cost submissions and awarded the appellants partial indemnity costs of $10,000, inclusive of disbursements and taxes, while denying the respondent's request for costs.

The court did not interfere with the cost award made by the motion judge.

The Court of Appeal for Ontario heard an appeal concerning the interpretation of a commitment letter for real estate financing and the calculation of damages.

The lender (MarshallZehr Group Inc.) terminated the commitment letter before any funds were advanced to the borrower (Ideal (BC) Developments Inc. et al.), citing the borrower's failure to satisfy initial funding conditions.

The motion judge had granted summary judgment to the lender, upholding the termination and awarding damages including a lender fee.

The appellate court affirmed the motion judge's interpretation that the cancellation provision in the commitment letter allowed for termination in the pre-closing period when no funds had been advanced.

However, the court found that the lender fee was not recoverable as the commitment letter stipulated it would be deducted from the initial advance, which never occurred.

The damages award was reduced accordingly.

The applicants, a syndicate of lenders and various construction trades, sought declarations that the respondent surety could not rescind performance and payment bonds issued for a hospital redevelopment project.

The surety had discovered alleged fraud and collusion in the procurement process and commenced a separate action for rescission.

The applicants argued they were innocent third parties whose rights under the bonds could not be defeated by the alleged fraud of the principals.

The court dismissed the applications, finding that the applicants' rights were derivative of the principals and that rescission remained a possible equitable remedy that must be determined on a full factual record at trial.

The plaintiff, WED Investments Limited, sought costs following a judgment in its favour against Showcase Woodycrest Inc., while the action against 2442459 Ontario Inc. was dismissed.

WED relied on Rule 49.10 for substantial indemnity costs due to a successful Offer to Settle.

The court found that while Rule 49.10 applied, its benefit should be limited to the success against Showcase, as the case involved two separate actions against different defendants.

The court awarded WED 60% of its claimed costs against Showcase, totaling $189,376.93, and ordered no costs between WED and 2442459 Ontario Inc.

The plaintiff developer entered into two Agreements of Purchase and Sale to acquire properties for residential redevelopment.

The vendor of the Brock Street property wrongly terminated the agreement after the plaintiff properly delivered a waiver of conditions by email.

The court awarded the plaintiff $3.2 million in damages based on the increase in the property's value.

The plaintiff's claim regarding the Hopkins Street property was dismissed because it failed to deliver a waiver by the extended deadline.

The defendants' counterclaims for damages arising from the registration of Certificates of Pending Litigation were dismissed, as the plaintiff had a reasonable claim to an interest in the land.

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.