Tony N. Nguyen

The moving party, Rogers Communications Canada Inc., sought to set aside previous orders dismissing its motion for security for costs against the responding party, Active Security and Cable Inc., on the basis of fraud or newly discovered facts under Rule 59.06(2)(a).

Rogers alleged that an erroneous payment of over $876,000 and other newly discovered facts regarding Active Security's financial status warranted setting aside the orders.

The court dismissed the motion, finding that the new evidence would not have likely altered the original decision, which relied primarily on a large CRA debt.

Furthermore, Rogers failed to prove fraudulent concealment and had made a tactical decision not to raise the new evidence during the appeal process.

The moving parties brought a motion for leave to appeal an order dated March 17, 2020, and to stay an order dated February 1, 2021.

The Divisional Court dismissed the motion in a brief endorsement.

Costs were awarded to the responding party in the fixed amount of $2,500.

The plaintiff brought a motion for summary judgment to enforce a settlement agreement reached regarding unpaid invoices for software development services.

The defendants repudiated the settlement, arguing it was conditional, induced by duress or fraud, and that prior settlement communications were privileged.

The court found the communications were not privileged as they were necessary to prove the settlement.

The court held that an objective reading of the communications showed a binding agreement on all essential terms, and rejected the defendants' claims of duress and fraud, noting the defendants chose to settle despite having concerns about the invoices.

The motion was granted and the settlement enforced for $200,000.

The defendant brought a motion for security for costs against the plaintiff under Rule 56.01(d).

The plaintiff sued for unpaid invoices relating to network infrastructure work, while the defendant counterclaimed for fraud and unjust enrichment, alleging overcharging.

The court found that the plaintiff was impecunious, largely due to a significant tax debt to the CRA, and that its claim had a good chance of success.

Consequently, the court held that an order for security for costs would be unjust and dismissed the motion.

The appellant appealed a trial judgment from the Superior Court of Justice dated August 29, 2017.

The Court of Appeal dismissed the appeal, finding that the appellant failed to demonstrate any error of law or palpable and overriding error of fact in the trial judge's assessment of evidence and application of governing principles.

The court affirmed that it is not the role of the appellate court to retry cases.

Costs were awarded to the respondent in the amount of $4,500 inclusive of disbursements and applicable taxes.

The plaintiff electrical sub-contractor sued the defendant contractor for $87,437 in unpaid invoices relating to three restaurant construction projects.

The parties operated on an informal, verbal basis with payments often made on account rather than allocated to specific invoices.

The court found the plaintiff's evidence more credible regarding the authorization of extras and the allocation of payments.

The court also rejected the defendant's limitation period defence, finding that periodic payments on the running account served as an acknowledgment of debt.

The plaintiff was awarded $77,437.30, reflecting the amount claimed less a $10,000 deposit that had been specifically allocated.

The receiver moved for approval of the sale of a golf course property.

The respondent, the first mortgagor, opposed the sale and brought a motion to redeem the first mortgage.

The court approved the sale and dismissed the motion to redeem, finding that the receiver's sales process was reasonable and met the Soundair principles.

The court held that allowing redemption at the last minute would undermine the integrity of the court-approved sales process, especially given the respondent's bad faith interference with the purchaser.

The appellant failed to appear for the hearing of her appeal and sought a fourth adjournment due to alleged dental pain.

The court refused the adjournment, noting the appellant's history of delaying the litigation, the lack of medical evidence regarding her inability to proceed, and the prejudice to the respondent who had been carrying the costs of caring for their elderly mother.

The appeal was dismissed as abandoned, with costs awarded to the respondents.

Application concerning the validity of competing powers of attorney for an elderly incapable person and the conduct of family members acting as attorneys for property.

The court determined that a 2011 power of attorney appointing three children jointly was valid and revoked an earlier 2010 power appointing one child as sole attorney.

However, due to misconduct including transferring the incapable person’s assets into joint accounts and joint tenancy, that child was removed as attorney for property.

The court declined to appoint the Public Guardian and Trustee or a financial institution as guardian, finding the remaining attorneys capable of acting.

The court also resolved disputes on passing of accounts and awarded costs relating to a Mareva injunction and the proceedings.

The moving party sought to vacate an ex parte Mareva injunction freezing assets, arguing that the injunction had been obtained through material misrepresentations and failures of full and frank disclosure.

The court accepted that inaccuracies had been presented in the original application, including overstated assets, understated income, and failure to disclose proceeds from a home sale.

However, given ongoing concerns about the disappearance of significant funds and unresolved factual disputes, the court declined to set aside the injunction entirely.

Instead, the injunction was varied to permit the release of a portion of frozen funds reflecting assets the moving party credibly established were independently earned.

The court also dismissed the opposing party’s cross‑motion for additional funding and awarded costs to the moving party.

Costs decision arising from an interim motion within an estates-related family dispute involving the care and financial management of an elderly person under disability.

The moving party sought relief against a sibling for alleged misconduct in managing the parent’s affairs and failing to comply with prior court orders.

After numerous appearances and unsuccessful settlement attempts, the court had earlier imposed an interim regime and transferred the matter to the Estates List.

In determining costs, the court found the moving party had acted reasonably in seeking judicial intervention and attempting settlement, while the responding sibling repeatedly consented to settlements and later repudiated them, causing unnecessary expense.

The court awarded partial costs to the moving party against the responding sibling and apportioned costs for the Public Guardian and Trustee between the principal litigants.