Stuart Glen Svonkin

This is a costs endorsement following the dismissal of the plaintiffs' contempt motion against two defendants, Saad Aljabri and Mohammed Aljabri.

The plaintiffs had sought a contempt order for alleged breaches of a Mareva Order, with potential sanctions including striking defences and default judgments for billions of dollars.

The defendants, as successful parties, sought substantial indemnity costs.

The court declined to award substantial indemnity costs, finding the plaintiffs' conduct was not reprehensible, scandalous, or outrageous, nor did they pursue the motion for an improper tactical advantage.

The court awarded partial indemnity costs to the defendants for the contempt motion.

Additionally, the court fixed costs for several preliminary motions, with mixed success for the parties, rejecting a "distributive costs" approach for the contempt motion itself but fixing costs for each preliminary motion separately.

The plaintiffs, a group of private companies, brought a motion seeking to find Dr. Saad Aljabri and his son, Mohammed Aljabri, in contempt of court for allegedly breaching a Mareva Order.

The plaintiffs claimed the defendants used assets frozen under the Mareva Order to pay for legal and living expenses, arguing that a purported gift of assets from Dr. Aljabri to Mohammed before the order was a fiction.

The defendants contended that the Mareva Order did not clearly apply to the gifted assets and that the gift was valid.

The court dismissed the plaintiffs' motion, finding that they failed to prove beyond a reasonable doubt that the Mareva Order clearly and unequivocally applied to the purportedly gifted assets, or that Dr. Aljabri retained an interest in or control over them.

The court emphasized the high standard of proof (beyond a reasonable doubt) required for civil contempt and that findings from prior civil proceedings (e.g., 'badges of fraud' on a balance of probabilities) do not shift the burden of proof in quasi-criminal contempt proceedings.

The defendant, Dr. Saad, sought a declaratory order that evidence he would provide in support of a renewed motion to stay the action would be inadmissible in a pending contempt proceeding against him, relying on the s. 13 Charter right against self-incrimination.

The Plaintiffs opposed, arguing the evidence was not compelled and the proceedings were not "other proceedings." The court dismissed Dr. Saad's motion, holding that his evidence on the stay motion was not statutorily compelled, and therefore s. 13 of the Charter was not engaged.

The court clarified that the proper time to seek use immunity would be at the contempt hearing itself.

This endorsement provides a clarification to an earlier ruling on a pre-trial motion.

The respondent (moving party) had sought to prevent the applicant from raising issues concerning the ownership, control, or valuation of Firm Capital Mortgage Corporation or Door to Door Investments Inc. (FCMC Companies) at trial.

The original motion was dismissed, allowing the applicant to raise these issues.

The clarification emphasizes that this permission does not dictate the manner in which these matters may be raised, the admissibility of evidence, or how evidence may be led.

It also clarifies that the ruling did not address the addition of Marilyn Dadouch or the FCMC Companies as parties, stating that such relief would require a separate motion.

The Respondent sought a pre-trial ruling to preclude the Applicant from raising issues related to the ownership, control, or valuation of certain companies (FCMC Companies) at trial.

The Respondent argued irrelevance, abuse of process due to a parallel civil action, issue estoppel from a prior disclosure motion, lack of necessary parties, and insufficient pleadings.

The court dismissed the Respondent's motion, finding the Applicant's claims relevant to net family property and support, no abuse of process as the legal issues differed from the civil action, no issue estoppel as the prior ruling was on disclosure, and no preclusion due to non-joinder of parties or insufficient pleadings, as the Respondent had clear notice of the issues.

Inzola Group Limited appealed a trial decision dismissing its claims for breach of contract and bias against the City of Brampton regarding a multi-million-dollar construction Request for Proposals (RFP).

Inzola was disqualified for breaching RFP terms, including failing to sign a confidentiality agreement, communicating outside the sole point of contact, and making public disclosures to the media.

The Court of Appeal upheld the trial judge's findings that Inzola's breaches were fundamental and threatened the integrity of the RFP process.

The court also rejected Inzola's argument that the City breached a duty of fair and equal treatment by handling a different alleged breach by another bidder (Dominus) differently, finding Dominus's breach inconsequential compared to Inzola's.

The appeal on liability was dismissed, and leave to appeal costs was denied.

The defendant, Toronto Transit Commission (TTC), brought a motion to enforce an alleged settlement agreement reached via email after two mediations.

The plaintiffs denied a binding settlement, arguing that HST was not included in the agreed-upon amount.

The court found that the defendant's email constituted a new offer, which the plaintiffs unconditionally accepted, and that the settlement amount was inclusive of HST.

The court enforced the settlement, finding no compelling circumstances or evidence of mistake to justify declining enforcement.

The defendant, The Corporation of the City of Brampton, brought a summary judgment motion seeking to dismiss the plaintiff's action, but later abandoned it.

The plaintiff, Inzola Group Limited, sought costs for the abandoned motion on a substantial indemnity basis.

The court found the plaintiff was entitled to partial indemnity costs for the period up to September 2016 and substantial indemnity costs for the period between September and November 2016, concluding that the defendant acted unreasonably in delaying the abandonment of the motion after critical evidence emerged.

The court fixed the total costs payable by the defendant to the plaintiff.

In a proposed class proceeding, the plaintiffs alleged that Ticketmaster breached s. 2(a) of the Ticket Speculation Act by charging fees above the base price of tickets sold in the primary market, constituting unjust enrichment and civil conspiracy.

The defendants moved for summary judgment dismissing the action.

The court held that although the statute could apply to certain primary-market transactions, the relevant prohibition concerns selling a ticket at a price higher than the price at which it was first issued.

Ticketmaster’s sales constituted the first issuance of the tickets at the full price charged, including service-related fees, and therefore did not contravene the Act.

The plaintiffs’ interpretation equating the “price first issued” with a base ticket price was found to be artificial and inconsistent with the statute’s purpose of targeting ticket scalping.

Following the dismissal of appeals from a master's decision rejecting claims of litigation privilege, the court determined costs.

The responding parties sought partial indemnity costs reflecting significant legal work and extensive materials filed on the appeal.

The court applied the principles under s. 131(1) of the Courts of Justice Act and Rule 57.01(1) of the Rules of Civil Procedure, emphasizing that costs must be fair and reasonable and should reflect the parties’ reasonable expectations.

The court rejected arguments that the large volume of materials filed by the appellant should influence the award and noted that the appellant advanced an arguable legal position without misconduct.

The court awarded $8,000 inclusive of fees, disbursements, and tax to each group of respondents.

Appeal from a Master's order compelling production of communications and answers on discovery despite a claim of litigation privilege.

The appellant argued that emails and a meeting with its insurance broker were created for the dominant purpose of anticipated litigation following denial of insurance coverage for an aircraft crash.

The court held that the appellant failed to establish an evidentiary basis that the dominant purpose of the communications was litigation, noting that the available evidence suggested the discussions focused on advancing the insurance claim rather than preparing for litigation.

The court further held that any common interest litigation privilege between the insured and the broker would have been dissolved once the insured commenced an action against the broker.

The Master's order compelling disclosure was upheld.

On a consent motion in a proposed class action concerning ticket resale practices, the court considered certification for settlement purposes and approval of a negotiated settlement under the Class Proceedings Act, 1992.

The action alleged that the defendants’ primary and secondary market ticket sales violated the Ticket Speculation Act through resale pricing and related practices.

The court held that the criteria for certification under s. 5(1) were satisfied, including the existence of an identifiable class and common issue relating to whether the defendants breached the statute.

The proposed settlement provided refunds of $36 per ticket to class members and required changes to the defendants’ ticket resale website practices.

The court concluded the settlement and the requested contingency fee arrangement were fair, reasonable, and in the best interests of the class.

Employees sought certification of a class action alleging that a bank misclassified analysts, investment advisors, and associate investment advisors as ineligible for overtime pay contrary to the Canada Labour Code and the Employment Standards Act, 2000.

The proposed class relied on job titles and levels to establish commonality, arguing that eligibility for overtime could be determined collectively or through statistical sampling.

The court held that determining whether an employee exercised managerial or supervisory functions required a fact‑specific assessment of the actual duties performed by each employee.

Evidence showed wide variation in responsibilities even among employees sharing identical job titles, defeating the proposed common issues and rendering statistical sampling inappropriate for determining liability.

As the central issues of overtime eligibility and breach required individualized inquiries, a class proceeding was not a preferable procedure and the certification motion was dismissed.

In a proposed overtime misclassification class action against a financial institution and its affiliate, the plaintiffs brought a motion to compel answers to refusals and undertakings arising from cross‑examinations on affidavits filed for an upcoming certification motion.

The court balanced the need for a full evidentiary record against the proximity of the certification hearing and the burden of additional production.

Requests for a third‑party inspection of the defendants’ human resources system and certain historical records were refused as disproportionate or unnecessary at the certification stage.

However, several questions concerning the duties of investment advisors, associate investment advisors, and the rationale for overtime eligibility policies were ordered answered because they related to class definition and commonality issues.

Other questions relating to merits issues, irrelevant job descriptions, or hypothetical inquiries were not compelled.