Thomas J. McEwen

The court approved the class action distribution plan, which allocated proceeds proportionally based on prior wind-down payments, and the class counsel's retainer agreement, fees, and disbursements.

The court also approved honourariums for the representative plaintiff and another instrumental class member.

A dispute regarding priority between General Motors' security interest and Class Counsel's first charge was noted for a subsequent decision.

The Bernstein Defendants brought a motion seeking to dismiss the crossclaim of Norma Walton and Ronauld Walton (the "Waltons") for damages due to their failure to pay a $32,000 costs award.

Alternatively, they sought to stay the crossclaim until costs were paid and the Waltons posted $200,000 security for costs.

The court ordered the Waltons to pay the outstanding $32,000 costs plus an additional $12,000 for the current motion within 60 days, failing which their crossclaim for damages would be dismissed.

If these costs were paid, the Waltons were then required to post $200,000 security for costs for their damages crossclaim within another 60 days, failing which it would also be dismissed.

The Waltons' claims for contribution and indemnity were permitted to proceed irrespective of these conditions.

This endorsement addresses three issues following earlier Reasons for Decision: the appointment of KSV Advisory as interim receiver, Deltro's request to reargue its position on repudiation of a Letter of Intent (LOI), and Deltro's request to introduce new affidavit evidence.

The court appointed KSV as receiver, finding no conflict of interest.

Deltro's motion to reargue the repudiation issue was dismissed based on the functus officio principle, as the argument was previously available and no miscarriage of justice was demonstrated.

Similarly, Deltro's motion to introduce new affidavit evidence was dismissed, as the evidence could have been obtained with reasonable diligence and did not meet the high threshold for reopening a case to avoid a miscarriage of justice.

SusGlobal Energy Belleville Ltd. brought a motion to reopen a prior motion seeking leave to sue the receiver (BDO) for damages, and to introduce fresh evidence.

The court dismissed the motion, finding that SusGlobal failed to meet the test for introducing fresh evidence as the evidence was available at the original hearing and would not have changed the outcome.

The court also found no miscarriage of justice in refusing to relax the reasonable diligence rule.

The plaintiff, CG Acquisition Inc., commenced an action against P1 Consulting Inc., Ontario Infrastructure and Lands Corporation (IO), and the Liquor Control Board of Ontario (LCBO) after being disqualified from a Request for Proposal (RFP) process.

The defendants brought motions for summary judgment to dismiss CG's claim, which was framed in tort, alleging breach of a common law duty of fairness and negligent investigation/service provision during the reconsideration of its disqualification.

The court granted summary judgment, finding no freestanding duty of fairness or care owed to a non-compliant bidder, and that the defendants' actions during reconsideration were reasonable and protected by a limitation of liability clause in the RFP.

This decision addresses two post-appeal issues: the costs of administering a class action settlement and the final quantification of damages.

The court ordered the defendant, Cassels Brock & Blackwell LLP, to pay reasonable administration costs.

For damages, following directions from the Court of Appeal, the court adopted the defendant's mathematical approach, awarding $28,745,304.00 to the plaintiff, Trillium Motor World Ltd., rejecting the plaintiff's proposed higher amounts based on proportional mathematical approaches or alleged enhanced bargaining power.

The respondent Picture Perfect Film Assets, LLC (PPFA) brought a motion to stay an application by the MacLaren Art Centre (MAC) concerning the ownership and sale of Rodin bronze sculptures.

PPFA argued for a stay based on forum non conveniens, issue estoppel, res judicata, abuse of process, and the 'good case management rule,' favouring a broader, earlier-filed Washington action.

MAC contended that its Ontario application, rooted in local bankruptcy proceedings and involving Ontario parties and law, was appropriate.

The court dismissed PPFA's motion, finding that Ontario was an appropriate forum and PPFA failed to demonstrate that Washington was 'clearly more appropriate' under the forum non conveniens analysis.

The court also declined to apply equitable doctrines or the good case management rule to stay the Ontario proceedings.

The plaintiffs (Ridels) brought a motion for summary judgment against the defendant (Goldberg), relying on findings from a prior action against e3m Investments Inc. and Mr. Cassin.

Goldberg brought a cross-motion for summary judgment, arguing the Ridels' claim was statute-barred by the Limitations Act, 2002.

The court dismissed the Ridels' motion, finding that Justice Pepall's prior findings against e3m did not translate into personal liability for Goldberg, and that Goldberg was not a "privy" to e3m in a way that would bind him.

The court granted Goldberg's motion, finding that the Ridels' action was commenced outside the two-year limitation period, as both the Ridels and e3m (as predecessor) had discovered the claim much earlier than the action's commencement date.

The court rejected the argument that the limitation period was suspended pending the outcome of an appeal in the prior action.

The appellant appealed a Consent and Capacity Board decision finding her incapable of consenting to anti-psychotic medication and a community treatment plan (CTP).

The appeal raised three grounds: the CTP's reference to a prospective referral to CMHA-Peel, the alleged withdrawal of the substitute decision-maker, and the Board's brevity in assessing the appellant's capacity.

The court dismissed the appeal, finding the Board's decision reasonable on all grounds.

The defendant brought a motion to transfer the action from Barrie to Toronto, arguing that all parties, the motor vehicle accident, and the plaintiff's medical treatment were predominantly located in Toronto, with no substantial connection to Barrie other than the plaintiffs' counsel's practice location.

The plaintiffs opposed, asserting that remaining in Barrie would avoid significant delays and be more cost-effective.

The court granted the transfer, finding that Toronto was a significantly better venue based on a holistic application of the factors under Rule 13.1.02(2)(b) of the Rules of Civil Procedure, emphasizing the convenience of parties and witnesses, the location of events and damages, and the local community's interest.

The plaintiff sued his former family lawyer and the lawyer’s firm for negligence arising from advice and drafting of a separation agreement that waived spousal support.

The plaintiff argued that the agreement was vulnerable to challenge and that counsel failed to adequately advise him of the risks and should have ceased acting once the agreement was attacked in subsequent litigation.

The court held that the lawyer met the heightened standard of care applicable to a family law specialist, having properly explained the risks and drafted a robust spousal support waiver.

The court also found no breach in continuing the retainer and concluded that causation and damages were not established, including under a lost‑chance analysis.

The action was dismissed.

Following the defendants’ complete success on a summary judgment motion and related application, the court determined the appropriate costs payable by the plaintiff.

The defendant warranty corporation sought substantial indemnity costs but provided no justification, and the court instead awarded partial indemnity costs.

The court reviewed the defendants’ bill of costs and reduced certain counsel fees while allowing reasonable disbursements.

Additional limited costs were permitted for preliminary legal assistance performed by a lawyer who was not solicitor of record, but no costs were allowed for work related to a third party claim.

The plaintiff was ordered to pay specified partial indemnity costs to the successful defendants.

Homeowners brought a motion under s. 47 of the Construction Lien Act and Rule 20 of the Rules of Civil Procedure seeking to discharge a construction lien and certificate of action and to dismiss the contractor’s action.

The court held that conflicting affidavit evidence regarding the amount and nature of work performed created genuine issues requiring a trial, preventing summary judgment dismissing the action.

However, the evidence demonstrated that the lien amount of $250,000 was grossly inflated relative to the limited work allegedly performed.

Exercising its discretion under the Construction Lien Act, the court ordered that the lien and certificate of action be vacated upon payment into court of a reduced amount representing a reasonable security for the claim.

The plaintiff brought a motion for summary judgment arising from five equipment lease agreements after the defendants defaulted on payments.

The responding individual defendant argued that he did not sign the agreements, that Ontario lacked jurisdiction, that he was not liable under the contracts, and that damages were exaggerated.

The court found no genuine issue requiring trial regarding execution of the agreements, jurisdiction, or contractual liability, noting affidavit evidence confirming the defendant signed the agreements and a contractual clause submitting disputes to Ontario courts.

However, the court determined the evidentiary record was insufficient to assess the reasonableness of the resale of repossessed equipment and therefore could not determine damages on the existing record.

Summary judgment was granted on liability, while the damages issue was adjourned for further submissions.

Following a prior finding of civil contempt for breaching a court order, the court conducted a sentencing hearing to determine the appropriate sanction.

The contemnor had continued to violate the order by disseminating derogatory online statements and contacting third parties despite the existing injunction.

The court reviewed the principles governing civil contempt sanctions, emphasizing deterrence, denunciation, proportionality, and the coercive purpose of enforcing compliance with court orders.

Although the contemnor apologized and undertook to comply going forward, the court noted a pattern of ongoing defiance and imposed a conditional sanction.

The contemnor was warned that any future breach would result in a 90‑day custodial sentence, and substantial indemnity costs were awarded to the moving parties.

Following a two‑day civil trial, the court determined the issue of costs after the parties were unable to agree.

Both sides argued that they had beaten their respective offers to settle, but the court found neither offer engaged the cost consequences under the Rules of Civil Procedure.

The plaintiff was entitled to costs on a partial indemnity basis throughout.

However, the court reduced the amount sought due to concerns about the hourly rate claimed, the matter having been suitable for the Simplified Procedure, and duplication arising from multiple legal professionals working on the file.

The court fixed costs at $12,500 plus HST and undisputed disbursements.

In a costs endorsement following earlier proceedings, the court reviewed written submissions from the plaintiff regarding costs and interest.

The responding defendants filed no materials and did not respond to correspondence from the court.

The court determined that the plaintiff had incorrectly calculated prejudgment interest by using post‑judgment quarterly rates.

The plaintiff was directed to resubmit corrected prejudgment interest calculations within 21 days, after which the court would provide reasons on costs and interest.

The plaintiffs brought a motion for contempt under rule 60.11(1) of the Rules of Civil Procedure alleging that the defendant breached an interlocutory injunction prohibiting the parties from publishing or communicating about each other and requiring removal of online postings.

Evidence showed the defendant continued communicating derogatory information about one plaintiff to third parties, including emails and contact with media, and failed to remove online postings.

The defendant acknowledged the communications and admitted guilt during submissions.

Applying the established test for civil contempt, the court held the order was clear, the defendant had knowledge of it, and he wilfully disobeyed it.

The court found the defendant in contempt and directed that sentencing be determined at a later hearing.

Following a three‑day civil trial, the plaintiffs obtained default judgment against one defendant while their claim against the other defendant was dismissed.

The court addressed competing submissions regarding costs.

The plaintiffs sought significant costs against the defaulting defendant, but the court found the claimed amount excessive given the straightforward nature of obtaining default judgment and reduced the award to reflect reasonable fees and disbursements.

The successful defendant sought substantial indemnity costs based on a pre‑trial offer to settle, but the court held that the offer to settle rule did not apply because the plaintiffs’ action against that defendant was dismissed entirely.

The court awarded that defendant partial indemnity costs at the upper end of the applicable hourly range and rejected the plaintiffs’ request that the defaulting defendant bear those costs.

The defendants brought a motion to dismiss or stay an action concerning alleged construction deficiencies in a new home.

The plaintiff had previously pursued warranty claims through the statutory regime under the Ontario New Home Warranties Plan Act and unsuccessfully litigated the issues before the Licence Appeal Tribunal and on appeal.

The court held that the action attempted to relitigate the same warranty issues and was barred by issue estoppel, res judicata, abuse of process, and collateral attack on tribunal decisions.

In addition, the defendants applied for an order declaring the plaintiff a vexatious litigant based on a long history of repetitive and abusive litigation conduct.

The court granted the application and imposed restrictions requiring leave of the court before the plaintiff could commence further proceedings against the defendants.