Timothy Pinos

The plaintiff, Crescent Hotels, sought costs of a successful summary judgment motion where it was awarded over $1 million in damages.

Having served a Rule 49 offer to settle for less than the awarded amount, the plaintiff claimed partial indemnity costs to the offer date and substantial indemnity costs thereafter, totaling $145,899.42.

The defendant argued the costs were excessive and proposed $85,000.

The court considered the factors under Rule 57.01, including the importance and complexity of the matter, and counsel's experience and efficiency.

The court found the plaintiff's costs fair, reasonable, and proportionate, declining to use the 2005 Costs Grid, and awarded the full amount sought.

The moving parties, a group of telecommunications companies, brought a motion for directions seeking disclosure and production of internal documents and communications from the Ontario Energy Board to form the record for their challenge of a new Pole Attachment Charge.

The court applied the 'meaningful judicial review test' to determine the required contents of the record, as the Statutory Powers Procedure Act did not apply.

The court concluded that the requested documents, including drafts, internal correspondence, and identities of report authors, were not necessary for a meaningful review of the moving parties' complaints regarding process, burden of proof, and ignored submissions.

The motion for disclosure and production was dismissed.

This is a costs endorsement on appeal from a Superior Court judgment dated September 26, 2017.

The appellants challenged the lower court decision, and the Court of Appeal addressed the issue of costs for the motion below.

The parties agreed that the costs determination should be remitted back to the trial judge for decision at a later time, pending clarification of the value of the claims and the effect of any Rule 49 settlement offers.

The plaintiff, Crescent Hotels and Resorts Canada Company, brought a motion for summary judgment against the defendant owner for an early termination fee and outstanding expenses under a Hotel Management Agreement (HMA).

The owner alleged termination for cause due to various acts of mismanagement and breaches by the plaintiff.

The court found no evidentiary support for the owner's allegations of cause and determined that the owner failed to provide proper notice of any alleged defaults as required by the HMA.

Consequently, the court granted summary judgment to the plaintiff for the early termination fee and all outstanding expenses, totaling $1,026,652.44 plus pre-judgment interest and costs.

This appeal concerns the closure of a manufacturing plant and the resulting mass termination of employees.

The central issues relate to the timing of Form 1 notice requirements under the Employment Standards Act, 2000, the effect of overtime hours on working notice, and the validity of termination notices for employees retained beyond the statutory 13-week temporary work period.

The employer gave employees over one year's notice of termination but failed to file the required Form 1 notice with the director until more than a year later.

The motion judge found the employer's entire notice period invalid.

The Court of Appeal allowed the appeal in part, holding that the Form 1 notice requirement arises only at the beginning of the statutory minimum notice period, not when the employer gives notice to employees.

However, the court upheld findings regarding overtime worked in violation of the ESA and the requirement for fresh notice when temporary work exceeds 13 weeks.

The appellant telecommunications carriers appealed a final order of the Ontario Energy Board (OEB) that increased the annual pole attachment charge payable to Hydro One Networks Inc. The appellants argued that the OEB breached procedural fairness by expanding the scope of their review and vary motion to include new evidence and issues, and erred in law by refusing to order production of a pole sharing agreement between Hydro One and Bell Canada.

The Divisional Court dismissed the appeal, finding that the OEB conducted the hearing fairly by granting the appellants' request for a hearing de novo and allowing all parties to present updated evidence.

The Court also held that the OEB's refusal to order production of the actual agreement, while requiring disclosure of its relevant financial impacts, was within its procedural jurisdiction and did not breach natural justice.

The applicant sought judicial review of a letter from the Pharmacy Examining Board of Canada denying his request to write the pharmacist qualification examination for a fifth time.

The Divisional Court dismissed the application, finding that the letter was not a reviewable decision but merely a statement of the existing rule limiting attempts.

The court also rejected the applicant's arguments that the Act creating the Board and the rule limiting examination attempts were ultra vires, noting that the Board does not regulate the profession but merely administers an examination that provincial licensing bodies may use.

The appellants sought to re-open their appeal of a decision dismissing their action against the respondent for terminating a commercial contract.

The appellants sought to advance a new legal argument based on repudiation, which had not been raised at trial or on the initial appeal.

The Court of Appeal dismissed the motion, holding that it would be unfair to permit a new legal issue after more than 10 years of litigation and that re-opening the appeal was not in the interests of justice.

The applicants sought an order sanctioning their Plan of Compromise and Arrangement under the Companies’ Creditors Arrangement Act (CCAA) and extending the stay period.

The Plan aimed to restructure the Pacific Group's indebtedness by approximately US $5.1 billion and maintain it as a going concern.

A Shareholder Consortium proposed an alternative recapitalization and refinancing proposal and requested an adjournment, which was opposed by the applicants and other stakeholders.

The court denied the adjournment, finding the alternative proposal a "last minute effort to de-rail" the restructuring.

The court sanctioned the Plan, finding strict compliance with CCAA requirements, good faith, and that the Plan was fair and reasonable, representing the best alternative available.

The court also approved third-party releases and granted a stay of proceedings for non-applicant parties, as well as extending the stay period.

Following the defendant's successful motion for summary judgment, the court determined the quantum of costs.

The defendant sought approximately $331,500 on a partial and substantial indemnity basis, relying on a favourable offer to settle.

The plaintiff argued for $210,000.

The court found the matter complex but noted excessive hourly rates for junior counsel and insufficient delegation.

Costs were fixed at $240,000 all-inclusive.

The appellants entered into an agreement with the respondent to build and operate a car dealership.

The respondent terminated the agreement after the appellants failed to meet construction deadlines.

The trial judge found the termination was unreasonable but held that an exclusion clause protected the respondent from liability for damages.

On appeal, the appellants argued the exclusion clause should not apply to an unreasonable termination.

The Court of Appeal dismissed the appeal, finding the trial judge's interpretation of the broadly worded exclusion clause was reasonable and not tainted by palpable and overriding error.

The defendant, Ontario Electricity Financial Corporation (OEFC), moved for summary judgment to dismiss the plaintiff, The Power Limited Partnership's (PLP), claims of negligent misrepresentation, dishonest contract performance, and breach of a 2005 power purchase agreement (PPA).

The claims stemmed from the negotiation and execution of a 1999 PPA and a subsequent 2005 PPA, particularly concerning whether Order in Council (OIC) approval was required for the 1999 PPA and alleged concealment of its execution.

The court granted summary judgment, dismissing all claims.

It found no contractual obligation to support the bad faith claim, no deliberate dishonesty or negligence in misrepresentation, and that the 2005 PPA's entire agreement clause excluded prior representations.

Furthermore, the court determined that OIC approval was legally required for the 1999 PPA and that the claims were statute-barred by the applicable limitation periods.

The claims related to the 2005 PPA regarding occasional payment rates, capacity caps, and monthly targets were also dismissed based on clear contractual terms and lack of grounds for rectification.

The defendant brought a motion to stay a defamation action, arguing the Ontario Superior Court of Justice lacked jurisdiction or that another forum was more convenient.

The plaintiff, a foreign corporation, sued the defendant, a Quebec resident, over blog posts accessible in Ontario.

The court applied the real and substantial connection test, finding that the tort of defamation crystallizes where the material is read.

Since the blog was accessed and republished via Twitter in Ontario, the tort was committed in Ontario.

The court dismissed the motion, concluding the defendant failed to show another forum was clearly more appropriate.

Applicants under multiple long-term power purchase agreements sought declarations that the respondent miscalculated Total Market Cost after the 2011 global adjustment reallocation regime came into force.

The court held that the contractual definition of TMC implicitly required aggregated electricity costs to be allocated pro rata based on electricity consumption, and that the respondent's new formula improperly reflected a regulatory reallocation between customer classes rather than the underlying costs of generation and supply.

Although the court found the respondent breached the PPAs, it also held that neither the change of law clauses nor the material change provisions were triggered by the reallocation regulation.

Declaratory and consequential relief was granted requiring recalculation from January 1, 2011 and compensation with interest.

Following an eight‑day trial in which the plaintiff’s action was dismissed, the successful defendant sought substantial indemnity costs after an earlier settlement offer to dismiss the claim without costs.

The plaintiff argued that costs should remain on a partial indemnity scale and challenged both the proportionality of counsel time and several disbursements.

The court considered the factors under Rule 57.01, including the magnitude of the claim, the complexity of the litigation, the importance of the issues to other generators, and the relative financial positions of the parties.

The judge concluded that the amounts sought were excessive and that the unsuccessful party should not bear the full scope of the defendant’s litigation resources.

Total costs were fixed at $250,000 inclusive of HST.

A small hydroelectric power producer sought a declaration and damages concerning the interpretation of a long‑term electricity purchase contract.

The plaintiff argued that payments after the tenth year of the agreement were required to escalate annually with inflation, while the defendant maintained that the contract fixed the tenth‑year rate as a floor and permitted annual rate determinations thereafter.

The court held the contract language was clear and contained no entitlement to an automatic inflation escalator.

Claims based on estoppel arising from the treatment of other generators were rejected.

Although the limitation period did not bar claims arising within two years before the action, the plaintiff ultimately failed to establish entitlement under the contract.

The provincial regulator applied for a declaration that a financial product marketed as a “Basic Line of Credit” constituted a payday loan under the Payday Loans Act, 2008.

The respondents argued that the product was a true line of credit and therefore outside the statutory definition and provincial jurisdiction.

The court applied the statutory direction to examine the real substance of the transaction rather than its outward form.

Despite structural features resembling a line of credit, the product functioned in practice as a series of short‑term advances tied to borrowers’ pay cycles and subject to high interest and brokerage fees.

The court held that the arrangement was substantively equivalent to payday lending and therefore subject to the Act and related regulatory regime.

The applicant, a payday lender, brought an application for judicial review challenging the validity of amendments to a regulation under the Payday Loans Act, 2008.

The amendments redefined the total cost of borrowing to include directly or indirectly connected amounts, required lenders to provide cash for unused balances on devices, and prohibited the sale of third-party services in connection with payday loans.

The applicant argued that the government breached its legitimate expectations by failing to provide a 45-day consultation period and that the amendments were ultra vires.

The Divisional Court dismissed the application, holding that the doctrine of legitimate expectations does not apply to the exercise of legislative powers and that the amendments were intra vires as they aligned with the consumer protection purpose of the Act.

The applicants sought removal of an arbitrator in an ongoing franchise dispute arbitration on the basis of reasonable apprehension of bias.

The concern arose because the arbitrator, acting as counsel in another similar franchise case, had retained the same accounting expert whose report was filed by the respondents in the arbitration.

The court held that an objective and informed person could reasonably apprehend bias where the arbitrator had previously relied on the same expert in similar litigation and would be required to assess that expert’s credibility and qualifications in the arbitration.

Although no actual bias was proven, the professional relationship and prior reliance on the expert were sufficient to raise a reasonable apprehension of bias.

The court therefore exercised its authority under the Arbitration Act, 1991 to remove the arbitrator and directed the parties to attempt to agree on a replacement.

The plaintiffs brought a motion to compel production of confidential financial and Key Performance Indicator data relating to seven non-party Lexus dealerships, which were in the possession of the defendant.

The plaintiffs argued the information was necessary to test the reliability of averages used by the defendant’s expert in calculating the plaintiffs’ alleged loss of profits following termination of a dealership agreement.

The court held that the individual dealer data was not producible under Rule 31.06(3) because the defendant’s expert had not received or relied on that underlying information.

Although the documents were relevant under Rule 30.02 to the issue of loss of profits, the court declined to order production after balancing proportionality and prejudice.

The court found that disclosure would cause significant prejudice to the non-party dealers, whose confidential financial information would be revealed to a direct competitor.

The plaintiffs’ motion was dismissed and costs were awarded to both the defendant and the non-party dealers.