Thomas G. Conway

The moving defendants brought a motion for security for costs against the corporate plaintiff in an action arising from a failed joint venture to develop LeBreton Flats.

The court found there was good reason to believe the plaintiff had insufficient assets to satisfy a costs award, as its liabilities exceeded its assets.

The plaintiff failed to demonstrate sufficient exigible assets, relying instead on future revenue streams which the court found inadequate.

The court concluded it was just to order security for costs, noting the moving defendants were minor players facing significant expenses and the plaintiff's controlling shareholder would otherwise be shielded from costs liability.

The plaintiff was ordered to post security in instalments.

The applicant mortgagee sought a declaration of entitlement to a yield maintenance payment (prepayment of future interest) following the sale of two mortgaged properties by a court-appointed receiver.

The respondent mortgagors and a second mortgagee opposed the claim, arguing the mortgages were opened by the receiver's actions, triggering the equity of redemption, and that the payment offended the anti-deprivation rule and the Interest Act.

The Superior Court of Justice held that the mortgages remained closed, the receiver's actions did not constitute a realization on the security, and the mortgagee was entitled at common law to the future interest to the end of the term.

The court declared the applicant entitled to $1,473,141.82.

The appellant, a secured creditor of a bankrupt renewable energy company, appealed the dismissal of its action against the Independent Electricity System Operator (IESO).

The appellant argued that the IESO wrongfully treated a renewable energy contract as terminated upon the debtor's bankruptcy, thwarting the appellant's attempt to assign the contract to a third party.

The Court of Appeal dismissed the appeal, affirming that the contract automatically terminated upon bankruptcy, that this termination did not violate the Bankruptcy and Insolvency Act stay of proceedings or the common law anti-deprivation rule, and that the IESO did not breach its contractual obligations or act negligently.

This case conference endorsement addressed the assignment of the proceeding to active case management under Rule 77 and issues concerning examinations for discovery and costs.

The defendants sought to conduct examinations for discovery by videoconference due to the COVID-19 pandemic and the plaintiff's age and health.

The plaintiff preferred written interrogatories or delayed in-person examinations.

Citing *Arconti v. Smith*, the court ordered that examinations for discovery proceed by videoconference, finding that the benefits of proceeding outweighed the plaintiff's concerns and that further delay was unreasonable.

The court also ordered submissions on costs thrown away from previously cancelled discoveries.

The defendants brought a motion to enforce a binding settlement agreement reached on May 17, 2019, to resolve an oppression remedy and wrongful dismissal claim.

The plaintiff opposed, arguing the defendants unilaterally modified a term regarding the share acquisition structure and failed to act in good faith.

The court found a legally binding agreement existed, which explicitly granted the defendants the prerogative to consider an alternative share acquisition structure and agree to it only if persuaded it was tax advantageous or neutral to them.

The court determined that the defendants had fulfilled their obligation by consulting their accountant and deciding against the alternative structure.

The court granted the defendants' motion to enforce the settlement and dismissed the plaintiff's cross-motion, concluding the settlement was reasonable and just.

The appellants brought a motion for leave to appeal the decision of Corthorn J. dated November 4, 2019.

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

The plaintiff sought costs after successfully opposing the defendants' motion to set aside or discharge a certificate of pending litigation.

The court had previously found that the plaintiff failed to make full and frank disclosure on the original ex parte motion for the certificate, but that the certificate would have been granted anyway.

The defendants argued against costs due to the disclosure failure.

The court reserved costs of the motion to the trial judge, citing divided success on the motion (plaintiff won on substantive issue, defendants won on disclosure finding), the reasonableness of the defendants' motion, the early stage of the action, and the potential for litigation conduct to be a factor at trial.

The parties were unable to resolve costs following a motion and cross-motion where the court stayed assessment orders pending the completion of a related negligence action.

The respondent sought full indemnity costs of $41,045.00.

The court determined that because the litigation is ongoing and the assessment is intertwined with the negligence action, the fairest result is for costs to be in the cause.

Costs for the motion and cross-motion were reserved for the trial judge.

This is a costs endorsement following a motion and cross-motion where the court stayed assessment orders pending a negligence action.

The applicant argued the granted relief was not sought, but the court clarified that a stay was requested by the respondent and affirmed its inherent power to stay proceedings under s. 106 of the Courts of Justice Act.

The court determined that costs for the interlocutory motions should be "in the cause" and reserved for the trial judge, citing the intertwined nature of the issues with the negligence action and the many possible outcomes.

The Applicant law firm sought assessment of outstanding accounts.

The Respondent client brought a cross-motion to stay the assessment proceedings pending the outcome of a negligence action against the law firm.

The court granted the stay, finding that the negligence action raised serious allegations, involved significantly higher damages, and its outcome would likely determine the assessment, thus avoiding multiplicity of proceedings and conflicting findings.

The plaintiff, a 53-year-old pharmacist with 16 years and 3 months of service, brought a summary judgment motion for wrongful dismissal damages against her former employer.

The employer conceded dismissal without cause, with the dispute centering on the reasonable notice period and associated damages.

The plaintiff sought 23 months' notice, while the defendant argued for approximately one month per year of service.

The court considered factors such as age, length of service (including a short break), character of employment, availability of similar employment, and mitigation efforts.

The plaintiff sought damages of approximately $4.8 million for breach of contract, negligent misrepresentation, and breach of the duty of good faith arising from a renewable energy contract.

The plaintiff acquired the secured debt of a company that had a contract with the defendant to build a biomass energy facility.

When the company filed for bankruptcy, the defendant treated the contract as automatically terminated pursuant to its terms, requiring the plaintiff to seek a new agreement.

The court dismissed the action, finding that the contract unambiguously provided for automatic termination upon bankruptcy, the defendant did not act in bad faith, and the plaintiff failed to mitigate its damages and prove an enforceable agreement for the sale of the contract.

The applicants, several humane societies, challenged the governance model of the respondent provincial animal welfare society.

After the respondent successfully resisted the application following a membership vote, the parties sought costs.

The applicants argued they should be shielded from costs as public interest litigants.

The court rejected this argument, finding the dispute was primarily about internal governance and control rather than a matter of public importance.

The court apportioned costs based on the stages of litigation and ordered the applicants (excluding one that withdrew) to pay $100,000 in costs to the respondent.

The Starcall Companies brought a motion for summary judgment to recover monies paid under protest to Bell Mobility, disputing an alleged debt and arguing it was statute-barred.

Bell Mobility counter-sought summary judgment.

The court found Bell Mobility failed to prove the debt was outstanding and that, even if it existed, it was not a demand obligation.

Consequently, the Starcall Companies' motion for summary judgment was granted, and Bell Mobility's claim was dismissed.

The applicant creditors sought to continue an application for a bankruptcy order against the debtor, The Quiet Voice Productions Inc., after abandoning a partially argued motion.

The debtor had filed a Notice of Intention to Make a Proposal.

The court declined to hear the bankruptcy application immediately due to time limitations and the applicants' failure to allow previously ordered cross-examinations on affidavits.

The court issued orders to manage the proceedings, including directions for the proposal vote, future hearings for the bankruptcy application or proposal approval, and completion of cross-examinations, while also freezing the debtor's funds.

Following a decision granting partial summary judgment to the plaintiff, the parties were unable to agree on costs.

The court found the motion was necessary, as the defendant only admitted a specific amount owing in the face of the motion.

The plaintiff was awarded costs of $15,000 on a partial indemnity scale, payable forthwith.

The plaintiff brought a motion for summary judgment for unpaid consulting fees related to the development of solar energy projects under the Feed-in Tariff program.

The defendants admitted liability for a portion of the fees but disputed the remainder, raising issues of contract interpretation, milestone definitions, and the inclusion of certain projects.

The court granted partial summary judgment for the admitted debt of $184,688 and ordered a trial for the remaining issues, finding that the contract's interpretation required a deeper understanding of the factual matrix that could not be resolved on the summary judgment record.

The applicants were successful on an interim motion permitting the individual applicant to resume his day-to-day involvement in the parties' businesses.

The court was asked to determine the costs of the motion.

The respondents argued costs should be in the cause, while the applicants sought substantial indemnity costs payable immediately.

The court found that the respondent's conduct in unilaterally ousting the applicant without colour of right justified an order of costs in any event of the cause.

However, the court awarded costs on a partial indemnity basis, fixing them at $23,810.59 inclusive of fees, disbursements, and HST.

The moving party sought to set aside a prior order dismissing a consolidation motion and to set aside a notice of discontinuance in a related professional negligence action.

The motion alleged that a tolling agreement allowing the plaintiff in the other action to recommence proceedings against solicitors rendered the discontinuance a sham and an abuse of process.

The court held that although the existence of the tolling agreement ought to have been disclosed at the earlier motion, the failure to do so did not amount to fraud on the court or justify setting aside the dismissal order under Rule 59.06(2).

The court further held that the moving party lacked standing to set aside the notice of discontinuance in litigation to which she was not a party and had shown no substantive prejudice from the deferral of that action.

The motion was dismissed and the responding parties were awarded costs.

The court determined costs arising from a motion permitting the plaintiff to amend its claim to increase damages from $40 million to $650 million.

The defendants sought to set aside a previously ordered $10,000 costs award in favour of the plaintiff and requested $125,000 for costs allegedly thrown away due to the amendment.

The court held there was no basis to revisit the earlier costs award and found the evidence insufficient to support the claimed amount of wasted costs.

While some duplication of work and strategic reassessment was inevitable due to the expanded claim, much of the claimed time related to responding to the amended action rather than wasted steps.

The court awarded the defendants limited compensation for duplication of work and set off that amount against the prior costs award.