Zina Rita

This is a costs endorsement following a decision where Mohammad Hamed Yousufzay was successful in his application and Mohammad Ali Eksir's application was dismissed.

Yousufzay sought full indemnity costs, while Eksir argued for no costs or partial indemnity.

The court found Yousufzay entitled to costs and awarded them on a substantial indemnity basis due to Eksir's unsubstantiated allegations of dishonesty and adverse credibility findings against him.

The court declined full indemnity costs, finding the case did not feature grave misconduct, and awarded $170,000.00 in all-inclusive substantial indemnity costs to Yousufzay.

This case involved cross-applications between two shareholders/directors of a closely held corporation, United Investment.

Mohammad Ali Eksir sought a declaration of oppression under section 248 of the OBCA and an order to wind up the corporation, alleging self-dealing and financial misconduct by Mohammad Hamed Yousufzay.

Yousufzay sought an order for a shareholder meeting and production of financial records.

The court dismissed Eksir's oppression application, finding he failed to prove his reasonable expectations were violated, as he was aware of and implicitly approved the impugned transactions (shareholder loans, donations, home renovation expenses, snow clearing).

The court also dismissed the request for winding up, stating it was not a just and equitable remedy given the lack of serious harm and the availability of less drastic remedies.

Yousufzay's application for a shareholder meeting with varied quorum requirements under section 106 of the OBCA was granted to allow for the appointment of directors and address corporate governance issues.

The applicants, an IT services company and its sole director, sought a declaration that their errors and omissions insurer had a duty to defend them against a copyright infringement action commenced in the U.S. The insurer denied coverage, citing material misrepresentations in the insurance application and various policy exclusions, relying heavily on extrinsic evidence.

The court ruled that the duty to defend is governed by the pleadings in the underlying action and the policy language, not by extrinsic evidence that would convert the motion into a "trial within a trial." Finding that the U.S. claims, on their face, fell within the policy's coverage for a "wrongful act" in connection with "professional business" and within the coverage period, and that the insurer failed to meet its onus to prove exclusions without the inadmissible extrinsic evidence, the application was allowed.

The respondent, having successfully defended an appeal, sought costs of $17,818.44.

The appellant did not dispute the entitlement to costs but argued the quantum was excessive, noting he would have sought only $9,152.95 had he been successful.

The Court of Appeal agreed the requested amount was high given there was no oral hearing, and fixed the costs payable to the respondent at $9,000 inclusive of disbursements and HST.

The appellant, an independent agent for the respondent financial services company, appealed the dismissal of his application for an order requiring the respondent to pay service commissions.

The respondent had changed its policy to make service commissions dependent on new sales performance.

The Court of Appeal found no palpable and overriding error in the application judge's conclusion that the contract permitted the respondent to modify pay arrangements and impose minimum performance standards upon notice.

The appeal was dismissed.

Following the dismissal of the plaintiff's action for insurance coverage, bad faith, and professional negligence, the successful defendants sought costs.

Economical sought substantial indemnity costs based on unaccepted offers to settle.

The court rejected this, finding no egregious misconduct by the plaintiff, and awarded costs on a partial indemnity scale.

The court fixed the partial indemnity hourly rates at 60% of actual rates and assessed the reasonableness of the time and disbursements claimed, including expert witness fees.

The court awarded $356,452.49 in costs to Economical and $183,979.82 to FCA, emphasizing the objective of fixing an amount that is fair and reasonable for the unsuccessful party to pay.

The appellant purchased a pre-construction condominium detached house unit under an Agreement of Purchase and Sale.

On the closing date, the appellant's solicitor advised that certain common elements (a parkette and entrance/exit gates) had not been constructed, contrary to the disclosure statement, and reserved the right to rescind.

The respondent terminated the agreement and forfeited the deposit.

The appellant subsequently rescinded and sought return of the deposit.

The application judge found the appellant breached the agreement and dismissed the application for return of the deposit.

The Court of Appeal upheld this decision, finding no material change in circumstances under the Condominium Act and that time was not of the essence for construction of the common elements.

The applicant, an independent financial advisor, brought an application to recover service commissions withheld by the respondent company.

The respondent had implemented a new policy making the payment of service commissions dependent on new sales performance.

The court interpreted the Financial Security Advisor Contract between the parties and found that, although service commissions were not explicitly listed in the compensation schedule, they were contemplated by the contract.

The court held that the clear and unambiguous wording of the contract allowed the respondent to modify or withdraw any established pay arrangement, including service commissions, for failure to meet minimum performance standards.

The application was dismissed.