Thomas S. Kent

Following an application in which the applicant obtained a declaration as its primary relief but was denied other remedies, the court addressed the issue of costs.

The applicant sought substantial indemnity costs, alleging bad faith conduct and reliance on an offer to settle under Rule 49.10(1) of the Rules of Civil Procedure.

The court rejected these arguments, finding no bad faith and holding the offer to settle did not meet the rule’s requirement of being made at least seven days before the hearing.

Applying the discretionary factors under Rule 57.01 and s. 131 of the Courts of Justice Act, and considering the partial success achieved, the court fixed costs on a partial indemnity basis.

Costs were awarded in the amount of $40,000 inclusive of HST and disbursements.

The applicant sought declarations and mandatory relief arising from a cooperation agreement relating to a solar power rooftop project and associated FIT contracts.

The respondents refused to execute transaction documents required to complete a sale of project assets, citing a disputed right of first offer held by a related entity.

The court held that the cooperation agreement clearly required the corporate respondent to use commercially reasonable efforts to facilitate any transaction relating to the project, including asset or share sales.

A declaration was granted confirming that the respondent corporation was obligated to sign the documents, but the court declined to grant a mandatory order or injunction because the applicant failed to establish irreparable harm under the RJR‑MacDonald test.

The appellants appealed the trial judge's decision dismissing their claim for negligent misrepresentation.

The Court of Appeal dismissed the appeal, finding no merit to the claim.

The court noted that the trial judge correctly addressed the pleaded theory of liability and found no liability or damages.

The court also held that even if a breach of contract theory had been advanced, the claimed damages were not attributable in law to such a breach.

The appellant appealed a trial judgment declaring that the parties had entered into a binding agreement for the sale of the appellant's interest in certain companies.

The appellant argued that the parties had not agreed on all essential terms and did not intend the agreement in principle to be binding.

The Court of Appeal dismissed the appeal, finding that the unaddressed details were not essential terms and that there was ample evidence supporting the trial judge's conclusion that the parties intended to be bound.

The appellants appealed a trial judgment and brought a motion to admit fresh evidence.

The Divisional Court dismissed the motion for fresh evidence, finding a lack of diligent search and that the evidence would not be conclusive.

The court also dismissed the appeal, holding that the trial judge made no palpable and overriding error in finding that the respondents were unaware the appellants were operating an independent business, given the level of trust and infrequency of visits.

The appellants appealed a decision refusing to rectify Minutes of Settlement.

They argued the parties intended to include their respective house lots in the equalization of partnership assets.

The Court of Appeal upheld the motion judge's finding that there was insufficient evidence of a mistake at the time the Minutes were signed, as the document specifically addressed the lots.

The appeal was dismissed.

The appellants appealed a trial judgment regarding an agreement of purchase and sale and unpaid invoices for marble supplied to a development.

The appellants challenged the trial judge's findings of fact, including breach of the agreement, promissory estoppel, and the personal liability of the corporate respondents' directors and officers.

The respondents cross-appealed the trial judge's award of 24% pre-judgment interest on the unpaid invoices.

The Court of Appeal dismissed both the appeal and the cross-appeal, finding no palpable and overriding error in the trial judge's findings of fact and upholding the pre-judgment interest rate as it was stipulated in the invoices.

The appellant appealed the dismissal of its application for a permanent injunction against the respondents' competing business.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that there was no evidence the appellant had sustained irreparable harm not compensable in damages.

The appellant mortgagor appealed a summary judgment granting the respondent mortgagee possession of a property.

The appellant argued that under the Land Registration Reform Act, the mortgagee was entitled to take possession at any time, meaning the ten-year limitation period commenced when the mortgage was signed rather than upon default.

The Court of Appeal dismissed the appeal, affirming that the mortgagee only has the right of possession after notice and default, and therefore the limitation period begins to run upon default.

The appellant appealed the dismissal of his application for partition and sale of lands held in trust for a partnership among four brothers, and the granting of the respondents' counter-application.

The Court of Appeal upheld the applications judge's finding of a partnership and his exercise of discretion in denying partition, noting the partners' interest was not possessory.

However, the Court granted leave to appeal costs, finding the award of substantial indemnity costs unduly harsh given the history of acrimony, and varied the costs below to $10,000.

The appellants appealed a trial judgment awarding the respondent $12,203.73 for unpaid commissions and $28,400.00 in costs on a substantial indemnity basis.

The Divisional Court upheld the trial judge's finding on the merits, concluding there was ample evidence to support the commission entitlement.

However, the court found the trial judge erred in the costs award, noting the importance of proportionality and reasonableness under the simplified rules.

The appeal was allowed in part, with the trial costs reduced to $10,000.00.

The appellant appealed a decision granting the respondent condominium corporation relief to enforce a parking by-law and rules.

The appellant argued the by-law was invalidly passed, unreasonable, and selectively enforced.

The Court of Appeal dismissed these arguments, finding evidence supported the by-law's validity, reasonableness, and consistent enforcement.

However, the Court allowed the appeal in part regarding the quantum of parking fines, reducing the arbitrary $6,000 award to the proven amount of $2,440.

The moving parties sought to stay discoveries pending their motion for leave to appeal to the Supreme Court of Canada.

They argued it would be unfair to allow the third party to conduct discoveries while a conflict of interest issue remained unresolved, and relied on a clause in a mediation agreement.

The Court of Appeal dismissed the motion, holding that the balance of convenience favoured allowing discoveries to proceed.

The court noted the slim chances of leave being granted, the lack of prejudice to the moving parties, and that the mediation agreement did not justify an open-ended stay.