Tudor Bogdan Carsten

This costs endorsement followed the Court of Appeal's reasons dated November 1, 2024, where parties were invited to make submissions regarding costs if they could not agree.

After reviewing the submissions, the Court ordered the respondent, Matthew Preston, to pay the appellant, Cervus Equipment Corporation, all-inclusive costs of $30,000 for the motion.

This appeal concerned the interpretation of a release and minutes of settlement executed by an employee after termination.

The core issue was whether the settlement documents released the employee's claim for damages related to vested stock units.

The motion judge found the vested stock units were not released, concluding the settlement made little economic sense otherwise.

The Court of Appeal found the motion judge erred in law by allowing the factual matrix to overwhelm the clear and broad language of the settlement documents, misapplying the guidance on narrow construction of releases, and improperly evaluating the economic benefits of the settlement.

The appeal was allowed, setting aside the judgment for the employee and granting judgment in favour of the employer, finding the vested stock units claim was released.

The appellant, Knights of Columbus, appealed an order dismissing their motion for a stay of proceedings in favour of arbitration.

The motion judge had concluded that the respondent was an employee and that the arbitration clauses in subsequent contracts were invalid for want of fresh consideration.

The Court of Appeal dismissed the appeal, affirming its jurisdiction to hear the appeal despite s. 7(6) of the Arbitration Act, 1991, because the motion judge found no valid arbitration agreement existed.

The Court upheld the motion judge's finding that there was no fresh consideration for the contracts containing the arbitration clauses, making them invalid.

It also clarified that the motion judge's preliminary finding on the respondent's employment status was not a final determination for the underlying action.

The appellant, Knights of Columbus, brought a motion to file a five-page reply factum in an appeal concerning the dismissal of their motion to stay an action in favour of arbitration.

The respondent, Neil Goberdhan, did not oppose the motion but sought conditions, including permission to file a sur-reply factum.

The motion judge dismissed the request for a reply factum, emphasizing that the Rules of Civil Procedure do not generally provide for such filings in civil appeals, except for leave to appeal motions, and that oral argument is the appropriate stage to clarify issues.

The court found the case was not exceptional enough to justify a reply factum and dismissed the motion without costs.

FSD Pharma Inc. applied to validate the cancellation of Class B shares issued to its former CEO, Raza Bokhari, arguing they were issued for future consideration contrary to s. 23 of the Ontario Business Corporations Act.

Bokhari contended the shares were valid or that the issue should be pursued under s. 130 OBCA, and that FSD was estopped from raising the issue.

The court found that shares issued for future consideration are not a nullity but their status depends on circumstances.

Applying a flexible approach, the court allowed Bokhari to retain shares proportionate to his actual employment days in 2021 (208/365ths) and permitted FSD to cancel the remainder.

The court also rejected the cause of action estoppel argument, noting the prior hearing was limited in scope.

Costs were not awarded to either party due to divided success and tactical efforts by the respondent.

The appellant, a former inbound technical call centre agent employed for approximately six months, appealed a summary judgment decision that awarded her $4,846.92 in pay in lieu of notice and dismissed her remaining claims for damages totalling millions of dollars.

The Court of Appeal quashed the appeal for lack of jurisdiction, finding that the order was a final order for a single payment not exceeding $50,000 exclusive of costs, which falls within the jurisdiction of the Divisional Court rather than the Court of Appeal.

The defendant, Corus Entertainment Inc., brought a motion under Rule 21.01(1) of the Rules of Civil Procedure to strike the plaintiff's Statement of Claim, arguing it disclosed no reasonable cause of action and was statute-barred by the Limitations Act, 2002.

The plaintiff, a former employee, claimed Corus breached a retirement agreement by reducing monthly Supplementary Executive Retirement Plan (SERP) payments.

The court found that the jurisprudence regarding limitation periods for periodic payments was unsettled and fact-dependent, making it not "plain and obvious" that the plaintiff's claim had no reasonable prospect of success.

The motion to strike was dismissed, and costs were awarded to the plaintiff.

The plaintiff moved for summary judgment in her wrongful dismissal claim, seeking 18 months' pay in lieu of notice and punitive damages.

The court found the plaintiff was terminated without cause after six months of employment and was entitled to reasonable pay in lieu of notice.

The court dismissed all other claims, including fraudulent misrepresentation, harassment, and punitive damages, finding no cogent evidence.

Applying the Bardal factors, the court awarded the plaintiff 5 weeks' pay in lieu of notice, totaling $4,846.92 after accounting for amounts already paid.

No costs were awarded due to mixed results.

The defendant moved to set aside two ex parte orders that had extended the time for the plaintiff to serve its statement of claim, alleging the plaintiff failed to make full and frank disclosure.

The plaintiff cross-moved to further extend and validate service.

The court found that the plaintiff failed to disclose material facts, including the defendant's representation by counsel and the acrimonious relationship between the parties, which might have impacted the original ex parte orders.

Consequently, the ex parte orders were set aside.

However, the court exercised its discretion to grant the plaintiff an extension of time *nunc pro tunc* and validated service, finding that the just resolution of the dispute required adjudication on the merits and that the defendant did not suffer material prejudice from the delay.

The University of Toronto Graduate Students’ Union (UTGSU) challenged a referendum on its continued membership in the Canadian Federation of Students (CFS) and CFS-Ontario (CFS-O), arguing that the Chief Returning Officer (CRO) made unreasonable decisions regarding polling stations and mail-out ballots, which led to a failure to meet quorum.

The CFS sought a declaration that UTGSU remained a member.

The court found that the relationship between the organizations and their members was contractual, governed by bylaws.

The court declined to imply a term into the bylaws to alter quorum calculation for disenfranchised voters.

It also found that the CRO's decisions were within his discretion and not made in bad faith, applying a subjective standard to his judgment.

Consequently, the court granted the CFS's application, declaring UTGSU's continued membership, and dismissed UTGSU's counter-application.

The plaintiff executive brought a wrongful dismissal action following termination without notice after approximately six years of employment.

The employer initially alleged cause but later conceded none existed.

The court applied the Bardal factors and determined that a reasonable notice period was 13 months but reduced it to 12 months due to limited mitigation efforts.

Damages were calculated using the plaintiff’s most recent accepted salary of $70,000 rather than a prior higher salary.

The court also awarded reimbursement for expenses and RRSP contributions, rejected a limitations defence regarding those expenses, and ordered the defendant to purchase gifted shares from the plaintiff at $160,000.

Following dismissal of a motion seeking to exclude an expert engineering report and related remedial work evidence, the successful parties sought substantial indemnity costs of over $24,000.

The court considered whether the unsuccessful moving party’s conduct justified substantial indemnity costs and applied the discretionary factors under Rule 57.01(1) of the Rules of Civil Procedure.

While the motion was unsuccessful, the court found the conduct did not rise to the level warranting substantial indemnity costs.

Applying the overarching principle of reasonableness and guidance from appellate jurisprudence, the court fixed partial indemnity costs at a fair and reasonable amount.

Costs of $12,500 inclusive were awarded, payable within 30 days.

The plaintiff contractor brought a motion on the eve of trial seeking leave under Rule 48.04 of the Rules of Civil Procedure to bring a motion to exclude an engineering report and related evidence relied on by the defendants in their counterclaim concerning alleged construction deficiencies.

The moving party argued the report had been delivered late and that remedial work was completed before it had an opportunity to obtain its own expert inspection.

The court held that leave was not warranted because the action had already been set down for trial and the moving party failed to demonstrate a substantial or unexpected change in circumstances making the motion necessary in the interests of justice.

The evidence showed the moving party had long been aware of the report and remedial work, had opportunities to conduct inspections and obtain its own expert evidence, and delayed bringing the motion until shortly before trial.

In any event, the court held the relief sought would not be justified because the evidence could be addressed through cross‑examination and exclusion would cause greater prejudice to the opposing party.