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 defendants appealed an interlocutory order regarding the admissibility and production of compelled evidence in a civil contempt motion arising from alleged breaches of a Mareva order.

The plaintiffs cross-appealed the motion judge's decision that answers to undertakings and further document production could not be compelled while the contempt motion was outstanding.

The Divisional Court upheld the motion judge's finding that evidence compelled prior to the contempt motion was admissible and did not violate sections 7, 11(c), or 13 of the Charter.

However, the court allowed the cross-appeal, finding that the motion judge erred in prematurely ruling on the admissibility of future answers to undertakings and in deferring the production motion.

The court held that the obligation to comply with the Mareva order continues despite the contempt motion, and admissibility should be determined when the evidence is tendered, based on whether the contempt motion is predominantly coercive or penal.

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.

The defendants and plaintiffs both brought motions for leave to appeal an order regarding the admissibility of evidence in a civil contempt proceeding.

The Divisional Court granted leave to appeal on four issues concerning the application of sections 7 and 13 of the Canadian Charter of Rights and Freedoms to evidence compelled pursuant to a Mareva order and undertakings.

The court directed that the defendant be the appellant and the plaintiffs be the cross-appellants.

The plaintiffs brought a motion for contempt against the defendants, alleging they breached a Mareva injunction by using frozen assets to pay for living and legal expenses.

In response, the defendants brought several procedural motions.

Dr. Saad moved to strike compelled evidence from the plaintiffs' contempt motion record, arguing it violated his Charter rights against self-incrimination.

The court dismissed this motion, finding that a contempt motion is not 'other proceedings' under s. 13 and that ss. 7 and 11(c) did not apply to previously compelled evidence.

Dr. Saad also moved under Rule 21 to exclude prior judicial rulings made in the civil action from the contempt motion.

The court granted this motion, holding that findings made on a civil standard are inadmissible in a quasi-criminal contempt proceeding.

The plaintiffs moved to compel the defendants to answer undertakings and produce documents.

The court ordered Dr. Saad to answer undertakings but ruled the answers could not be used in the contempt motion, and declined to order further document production that would conscript the defendants to assist in their own prosecution.

The court also limited the plaintiffs' disclosure obligations to the alleged breach, refusing broad discovery on the underlying fraud.

Finally, the court dismissed Mohammed's motion to stay the contempt proceedings pending his appeal on jurisdiction.

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.

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 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.

The applicant brought a motion for leave to appeal the unreported decision of Hood J. dated October 31, 2019.

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

The defendants brought a motion to compel the plaintiff to answer 143 questions refused during her cross-examination on an affidavit filed in response to the defendants' summary judgment motion.

The summary judgment motion was based on the expiry of the limitation period.

The plaintiff had refused questions on the basis of relevance and solicitor-client privilege.

The court found that questions seeking the legal significance of material facts were not relevant to discoverability.

The court also held that the plaintiff had not waived solicitor-client privilege, as she had not voluntarily put her state of mind or legal advice in issue.

The motion to compel answers was dismissed.

Following a 38-day trial where the plaintiff's claim was dismissed, the successful defendant sought costs of over $2.2 million on a partial indemnity basis, but argued for substantial indemnity costs from the date the plaintiff amended its pleadings to allege bias and conspiracy.

The court denied substantial indemnity costs, finding the plaintiff's allegations were not made recklessly or without evidentiary foundation.

The court upheld the defendant's significant e-discovery disbursements as reasonable but ordered the defendant to produce redacted dockets for the plaintiff's review before finalizing the fee award.

The applicants, including the Elementary Teachers' Federation of Ontario and the Canadian Civil Liberties Association, brought applications for judicial review challenging the Ontario government's decision to withdraw the 2015 sex education curriculum and replace it with the 2010 curriculum.

They argued the directive infringed teachers' freedom of expression under s. 2(b) of the Charter, and students' rights under ss. 7 and 15(1) of the Charter.

The Divisional Court granted the applicants public interest standing but dismissed the applications on the merits.

The court found no infringement of s. 2(b) because teachers remained free to address topics from the 2015 curriculum, and no infringement of ss. 7 or 15(1) because the 2010 curriculum did not inherently deprive students of security of the person or substantively discriminate against protected groups.

The plaintiff, a construction company, sued the defendant municipality after being disqualified from a Request for Proposals (RFP) process for a City Hall expansion.

The plaintiff alleged that the municipality acted in bad faith and with bias when it disqualified the plaintiff for refusing to sign a confidentiality agreement and for communicating directly with City Council.

The Superior Court of Justice dismissed the action, finding that the plaintiff had breached the clear terms of the RFP and that the municipality's decision to disqualify the plaintiff was fair, made in good faith, and based on the advice of an independent fairness advisor.

The court also held that even if the municipality had breached the RFP, the plaintiff would only be entitled to reliance damages, not expectation damages for lost profits.

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 brought a motion for the production of numerous documents following a further examination for discovery of the plaintiff's representative.

The defendant sought documents that were not considered by the plaintiff's damages expert in preparing his report, arguing they were relevant to the calculation of damages and mitigation.

The court dismissed the motion, holding that documents not forming the foundational information used by the expert cannot be ordered produced under Rule 31.06(3).

Furthermore, the court found the requested disclosure to be entirely disproportionate under Rule 29.2.03 given the late stage of the proceeding and the volume of irrelevant documentation sought.

The plaintiff successfully opposed the defendants' motion for summary judgment and sought costs on a substantial indemnity basis.

The court found that the defendants acted unreasonably in bringing the motion, as there was no factual or legal basis for their limitation period defence regarding the nuisance and snow loading claims.

Additionally, the plaintiff had served an offer to settle the motion.

The court awarded the plaintiff costs on a substantial indemnity basis, fixing the quantum at $80,673.62 after applying a 20% reduction to the fees claimed for being moderately excessive.

The applicant filed human rights applications alleging discrimination because accessible seating for Toronto Blue Jays games could not be purchased online in 2016.

The respondents subsequently changed their policy to allow online purchases and brought a request to dismiss the applications as moot.

The Tribunal dismissed the request, finding that the applications were not moot because the policy change did not address the alleged past discrimination and the applicant had not received the remedies sought, including public interest remedies and monetary compensation.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action on the basis that the claims were statute-barred under the Limitations Act, 2002.

The plaintiff claimed damages for anticipated snow loading caused by the construction of an adjacent City Hall addition, as well as damages in nuisance for noise, dust, vibration, and hoarding during construction.

The court dismissed the motion, finding genuine issues requiring a trial.

The court held that a claim for snow loading damage does not arise until actual damage occurs, and the nuisance claim may constitute a continuing cause of action.

The applicant in a disability discrimination case requested wide-ranging production of documents from the respondents regarding complaints and lawsuits about fraudulent purchases of accessible seating tickets.

The Tribunal denied the request, finding it disproportionate to the one-day hearing scheduled and noting that the information could be elicited through cross-examination.