Wendy H. Greenspoon-Soer

Following a motion in civil litigation, the successful responding parties sought costs on a substantial indemnity basis.

The court considered the absence of a Rule 49 offer and found no litigation misconduct or other circumstances warranting elevated costs.

The court rejected claims of over-preparation and noted a lack of genuine compromise in negotiations by certain parties.

Costs were awarded to the successful parties on a partial indemnity basis in a fixed amount inclusive of HST and disbursements.

Competing applications arose from an aborted commercial sublease transaction.

The sub-tenant sought a declaration that the sublease was null and void and requested the return of its deposit, arguing that conditions regarding head landlord approval and creditworthiness were not properly satisfied within the contractual time limits.

The court found that notice of the head landlord’s approval by email satisfied the agreement and applicable statutory provisions, and that the sub-tenant’s own failure to timely provide required financial information prevented it from relying on the timing of the creditworthiness condition.

Applying the principle that a party cannot rely on the non‑fulfillment of a condition it caused, the court held the sublease binding and breached by the sub-tenant.

The deposit was forfeited and damages were to be determined in a subsequent proceeding.

The plaintiff lender brought a motion for summary judgment to recover debts arising from factoring agreements and related guarantees after discovering that several assigned accounts receivable were fabricated or previously paid.

The court applied the summary judgment framework articulated in Hryniak v. Mauldin and determined there was no genuine issue requiring a trial.

The evidence established defaults under the agreements, triggering the lender’s right to immediate repayment and enforcement of its security interests.

A counterclaim alleging wrongful enforcement and interference with a business relationship was dismissed for lack of proof.

Summary judgment was granted for the debt claim and costs awarded on a partial indemnity basis.