Thomas J. McRae

The applicant bank sought an order for possession and power of sale of a mortgaged condominium unit.

The respondent Singh claimed to be the beneficial owner of the property pursuant to a trust declaration with the registered owner, Andrade, and raised various defences including claims of fraud, knowing assistance to breach of trust, equitable mortgage, and equitable subordination.

The court found that Singh had failed to comply with court orders requiring him to pay the mortgage and granted the bank's application for possession and a writ of possession, stayed for 30 days to allow Singh to vacate.

This endorsement addresses the costs arising from an appeal where VAC Developments Limited's counterclaim against Mr. Williams was dismissed.

The Court of Appeal had previously dismissed VAC's appeal from that judgment.

Mr. Williams sought full indemnity costs for the appeal and a fresh evidence motion, but the court awarded partial indemnity costs for the appeal, finding no grounds for a heightened award.

For the fresh evidence motion, which was occasioned by an unsupported allegation in Mr. Williams' factum, the court awarded reduced costs to Mr. Williams and also to Mr. Lakhani, a third party who intervened, acknowledging their partial responsibility for the motion's necessity.

This is an appeal from an anti-SLAPP motion.

The appellant, VAC Developments Limited, sought to overturn the dismissal of its $1.5 million defamation counterclaim against the respondent, Agin Williams.

Williams had publicly alleged that VAC failed to address racist threats and dismissed him in reprisal for involving the police.

The motion judge dismissed VAC's counterclaim under s. 137.1 of the Courts of Justice Act, finding VAC had not shown substantial merit or sufficiently serious harm to outweigh the public interest in protecting Williams' expression.

The Court of Appeal upheld the dismissal, agreeing that VAC failed to demonstrate sufficiently serious harm, which is a critical component of the public interest balancing test in anti-SLAPP motions.

This is a costs decision following a successful anti-SLAPP motion brought by Agin Williams against Vac Developments Limited, which resulted in the dismissal of the company's counterclaim.

Williams sought full indemnity costs of $94,883.60 and $20,000 in damages.

Vac Developments conceded costs were payable but argued the amount was inflated, proposing $20,000.

The court awarded Williams $45,200 in costs (fees and disbursements of $40,000 plus HST), finding the amount sought excessive but justifying a full indemnity award due to the punitive nature of the counterclaim and power imbalance.

No damages were awarded as bad faith or improper purpose was not found, nor evidence of damages presented during the motion.

The applicant, a former employee, brought an anti-SLAPP motion to dismiss the respondent employer's $1.5 million counterclaim for defamation, injurious falsehood, and unlawful interference with economic interests.

The counterclaim arose from the applicant's statements to CTV News regarding alleged workplace racism and his subsequent layoff.

The court found that while the respondent met the threshold for substantial merit regarding the defamation claim and the applicant's fair comment defence might not succeed, the public interest in protecting the applicant's expression on anti-Black racism in the workplace overwhelmingly outweighed the public interest in allowing the disproportionate and unsubstantiated counterclaim to continue.

The counterclaim was dismissed.

The appellant, a ranking creditor, appealed a motion judge's decision that residential condominium purchasers were not obliged to pay the Receiver their proportionate share of the notional value of land conveyed to the City of Toronto to meet the developer's parkland obligations.

The Court of Appeal upheld the motion judge's interpretation of the standard form Tarion Addendum clause, finding that the term 'parks levy' in the agreement indicated a payment of cash-in-lieu rather than a conveyance of land.

The appeal was dismissed.

The plaintiff seller brought an action against the defendant buyer for forfeiture of a $250,000 deposit and damages after a failed commercial real estate transaction.

The buyer refused to close, alleging the seller failed to rectify an illegal third-floor residential conversion and a resulting city work order.

The buyer also brought a third-party claim against its real estate lawyer for professional negligence.

The Superior Court of Justice found that the buyer intentionally orchestrated the work order for leverage and failed to properly requisition the issue within the contractual deadline.

The court held the transaction was not unconscionable, denied relief from forfeiture, awarded the seller the deposit plus $6,645 in out-of-pocket damages, and dismissed the third-party claim against the lawyer, finding he met the standard of a reasonably prudent solicitor.

The moving parties, purchasers of condominium units, brought a motion seeking a declaration that the court-appointed receiver had no right to charge a 'parks levy' as an adjustment on the closing of their units.

The receiver argued that the contractual provision allowed it to charge the purchasers for the notional value of parkland conveyed to the municipality.

The court found that the contractual language was ambiguous and, applying the principles of contractual interpretation and contra proferentem in the context of a consumer contract, ruled in favour of the purchasers.

The receiver was ordered to repay the parks levy amounts with interest.

The appellant appealed a motion judge's order enforcing a settlement agreement between the parties.

The motion judge found that the parties had agreed to material settlement terms, including a payment of $850,000 from the respondent to the appellant, the filing of a proposal to creditors under the Bankruptcy and Insolvency Act, dismissal of actions without costs, mutual releases, and confidentiality.

The appellant challenged the inclusion of the proposal requirement and the payment into court mechanism.

The Court of Appeal upheld the motion judge's decision, finding no extricable errors of law and dismissing the appeal with costs awarded to the respondent.

The plaintiff brought a summary judgment motion seeking damages for an unpaid 2016 fiscal bonus, bad faith, and punitive damages following the termination of his employment.

The plaintiff argued the bonus plan was objective and non-discretionary, while the defendant employer maintained it was discretionary and subject to board approval.

The court dismissed the motion, finding that material facts were in dispute regarding the nature of the bonus plan, alleged performance issues, and bad faith.

The court concluded that a fair and just determination required a full evidentiary record with viva voce evidence and credibility assessments at trial.

The plaintiff, an adult ESL student, brought an action for defamation and malicious prosecution against her former teacher.

She alleged that the teacher defamed her by falsely claiming she was stalking and harassing him, and maliciously prosecuted her by seeking two peace bonds.

The court dismissed the action, finding the plaintiff's evidence not credible and accepting the defendant's evidence that the plaintiff had engaged in a prolonged pattern of stalking and harassment.

The court held that the defendant's statements were substantially true and protected by qualified privilege, and that he had reasonable and probable cause to seek the peace bonds without malice.

Self-represented long-term disability beneficiaries sought leave to appeal a sanction order from the Superior Court of Justice in the Nortel Networks CCAA proceedings.

The applicants challenged their binding status under the 2009 Representation Order for Disabled Employees and the 2010 Employee Settlement Agreement.

The Court of Appeal dismissed the motion for leave to appeal, finding that the stringent test for leave in CCAA proceedings was not met.

The proposed appeal lacked merit, the applicants were bound by the settlement agreement, and further delays in the protracted litigation were to be avoided.

The court also rejected a late-filed notice of constitutional question challenging sections 6(1) and 11 of the CCAA.

The Monitor in the CCAA proceedings of Nortel Networks Corporation brought a motion to pass its accounts and those of its legal counsel for the period from January 2009 to May 2016.

The fees sought totaled over $250 million CAD and USD combined.

The court applied the Belyea factors to assess the fairness and reasonableness of the fees.

Despite the unprecedented size of the fees, the court found them justified given the massive scale, complexity, and duration of the cross-border insolvency, the extraordinary powers granted to the Monitor, and the highly successful results achieved for the Canadian estate.

The accounts were approved in full.

The appellant appealed a decision dismissing its claim on the basis that it was barred by a broadly worded release from a 1996 action settlement.

The Court of Appeal agreed with the motion judge that the claim related to the lands referred to in the release.

Furthermore, the court found that the appellant was an affiliate or associate of the releasing party due to the common control of both entities by the same individual.

The appeal was dismissed with costs.

The parties agreed to the costs of the appeal.

The Court of Appeal awarded costs to the respondent in the agreed amount of $15,000 inclusive of disbursements and taxes.

The appellant condominium corporation appealed the dismissal of its application seeking a declaration that a by-law and warranty agreement entered into by the declarant-appointed board were invalid.

The agreement limited the declarant's liability for common element deficiencies to the statutory warranties under the Ontario New Home Warranties Plan Act.

The Court of Appeal dismissed the appeal, finding that the by-law was within the board's broad authority under section 56 of the Condominium Act, was not contrary to the Act or the declaration, and was not unreasonable.

The court held that the initial directors acted lawfully in organizing the condominium's affairs as anticipated by the declaration and disclosed to purchasers.

During a Commercial List case conference in a complex multi‑party commercial dispute, the court addressed ongoing discovery and production issues among numerous defendants and third parties.

The court directed timelines for outstanding undertakings and warned that unresolved production disputes would require formal motions before a Master.

The court emphasized counsel’s obligation to cooperate in resolving discovery issues and indicated that failure to do so could result in elevated or full indemnity costs.

Additional guidance was provided regarding potential motions for non‑party examinations and production of partnership financial statements.

The court scheduled a further case conference and noted that the matter would not proceed to trial as early as previously anticipated due to outstanding discovery issues.

The appellant sought to stay or dismiss an Ontario contract action on the basis of a prior default declaratory judgment obtained in Minnesota stating that nothing was owed under the parties' agreements.

The Court of Appeal held that even assuming the technical requirements of res judicata or issue estoppel were met, the motion judge properly exercised discretion not to apply those doctrines where doing so would be unjust.

The court emphasized the absence of any merits determination in the foreign proceeding, the tactical and defensive nature of the foreign declaratory action, and the fact that the compensation claim was integrally tied to Ontario under contracts governed and enforced by Ontario law.

Comity did not require a stay in the circumstances.

Following a motion to strike the corporate defendants’ statement of defence for failure to retain counsel, the defendants retained counsel shortly before the hearing and the motion was not argued.

The plaintiff sought costs thrown away for preparation of the motion.

The court held that bringing the motion was reasonable in complex fraud litigation where corporate defendants had delayed appointing counsel despite ample time.

Applying Rule 57 factors and the principles governing reasonable costs, the court awarded partial indemnity costs for fees and reduced disbursements.

Payment of the costs award was staggered due to the circumstances of the corporate defendants.

Following an unsuccessful motion by the defendant seeking to dismiss the plaintiff’s action on the basis of res judicata, the court determined the appropriate costs payable to the successful plaintiff.

The motion involved complex legal issues including the doctrine of res judicata, conflict of laws, and analysis of a United States declaratory judgment forming the basis of the defendant’s argument.

The plaintiff sought substantial partial indemnity costs reflecting extensive research, including evidence from U.S. counsel regarding American law.

The court found the claimed hours excessive for a one‑day motion but accepted that the issues were complex and important.

The court fixed reasonable partial indemnity costs and allowed the claimed disbursements.