Contracts — Interpretation — Motion judge finding that parties were
not engaged in joint venture as there was no common undertaking, no
mutual control and no expectation of share in profits — That finding
available to him on record.
The defendants appealed an order granting summary judgment to the plaintiffs, and sought leave to appeal the full indemnity costs award made against
Held, the appeal should be dismissed.
The motion judge’s finding that the parties were not engaged in a joint venture
as there was no common undertaking, no mutual control and no expectation to
share in profits was available to him on the record.
Conduct must be especially egregious in order to justify full indemnity costs. In
this case, full indemnity costs were warranted given the motion judge’s findings
that the defendants moved funds out of the country in an effort to place them out
of reach of the plaintiffs and fabricated evidence.
Cases referred to
Davies v. Clarington (Municipality) (2009), 100 O.R. (3d) 66,  O.J. No.
4236, 2009 ONCA 722, 312 D.L.R. (4th) 278, 254 O.A.C. 356, 77 C.P.C. (6th) 1,
182 A.C.W.S. (3d) 291; Heritage Capital Corp. v. Equitable Trust Co., 
1 S.C.R. 306,  S.C.J. No. 19, 2015 SCC 19, 75 M.V.R. (6th) 1, 40 C.C.L.I.
(5th) 173, 383 D.L.R. (4th) 457, 470 N.R. 362, 332 O.A.C. 206, 251 A.C.W.S.
APPEAL from the summary judgment of DiTomaso J., 
O.J. No. 6244, 2016 ONSC 7486 (S.C.J.) and from the costs
Ralph Swaine, for appellant.
Christopher Salazar, for respondent.
[ 1] BY THE COURT: — This is an appeal of an order granting
summary judgment to the respondents for damages and other
related relief. The appellants also seek leave to appeal the full
indemnity costs award made against them in the amount of
[ 2] This case involves an oral agreement between the parties
regarding the sale and installation of Shaw Cable packages in
Ontario. The motion judge found that the appellants were in
breach of the agreement and had misappropriated funds owing
to the respondents under the agreement. He further found that
the appellants owed moneys to the respondents pursuant to
loans made by the respondents.
[ 3] On appeal, the appellants submit that the motion judge
( i) finding that the agreement was not a joint venture;