Aaron A. Blumenfeld

The parties sought resolution of three issues arising from the Court of Appeal's reasons regarding civil contempt sentencing.

The Court directed that the appellants be brought before the trial judge, and remitted the issues of credit for time served and passport retention to the trial judge for determination.

The appellants, Jay and Christina Chiang, appealed a trial judge's finding that they had not purged their civil contempt by fulfilling undertakings to disclose financial information, as well as the resulting sentences of one year and eight months' imprisonment.

They also appealed the trial judge's decision to quash a Parole Board order granting Jay Chiang parole and to issue a replacement warrant of committal.

The Court of Appeal upheld the findings of non-compliance and the decisions regarding parole jurisdiction and the replacement warrant.

However, the Court allowed the appeal against sentence, finding that the trial judge was bound by a 2003 consent order that limited the initial period of incarceration for non-compliance to seven days.

The sentences were reduced to seven days each.

The respondent landlord leased commercial premises to a corporate tenant within the Brick enterprise.

The lease was subsequently assigned and sublet to other entities within the enterprise.

When the sub-tenant vacated the premises early and stopped paying rent, the landlord sued the parent corporation, arguing it was liable under a Consent and Acknowledgement agreement and the oppression remedy.

The trial judge found liability under the oppression remedy.

The Court of Appeal dismissed the appeal, finding that the parent corporation was directly liable to the landlord for the unpaid rent under the terms of the Consent and Acknowledgement agreement, making it unnecessary to rely on the oppression remedy.

The defendants sought leave to appeal an order continuing an interim Mareva injunction to trial.

The motions judge had applied the doctrine of abuse of process, finding no new evidence was presented since the initial interim order.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions or reason to doubt the correctness of the order under Rule 62.02(4), despite the motions judge's lack of detailed analysis.

Following an appeal, the successful appellants sought costs.

The Court of Appeal awarded partial indemnity costs to the appellants for both the motion and the appeal.

The costs awarded to two of the appellants were made payable only upon their satisfaction of a prior judgment, while the costs awarded to the third appellant were made payable within thirty days.

The plaintiffs brought an action for breach of trust and fiduciary duty against the former executor of an estate and related parties.

The plaintiffs moved to strike parts of the statements of defence, arguing the issues were already determined in a prior passing of accounts proceeding.

The motions judge struck the pleadings but refused to grant summary judgment.

The defendants appealed the striking of their pleadings, and the plaintiffs cross-appealed the refusal of judgment.

The Court of Appeal allowed the appeal, finding that the passing of accounts dealt with executor compensation, not damages for breach of fiduciary duty, and that the prior judge made no specific findings of breach.

The cross-appeal was dismissed.

The appellants appealed an order striking out their claim of economic duress and effectively dismissing their entire action against the respondent banks.

The motion judge had found that past dealings between the parties could not constitute economic duress to vitiate a restructuring agreement and release.

The Court of Appeal allowed the appeal, holding that the motion judge erred by failing to apply the 'plain and obvious' test for striking pleadings under Rule 21.

The Court found it was not plain and obvious that a claim of economic duress based on past dealings would inevitably fail, and ordered the appellants to file a new, focused statement of claim.

The plaintiff sued the defendants for fraudulent misrepresentation.

The defendants moved for a stay of proceedings under Rule 21, arguing the parties had an oral agreement to arbitrate disputes before the Beis Din.

The motion judge dismissed the application, finding no agreement to arbitrate.

On appeal, the defendants argued the motion judge should have directed the arbitrator to determine if an agreement existed or directed a trial of an issue due to conflicting evidence.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's exercise of discretion or her determination of the preliminary jurisdictional issue on the motion record.

The appellant defaulted on a vendor take-back mortgage, leading the respondents to sell the property under power of sale.

The respondents obtained summary judgment for the shortfall of over $1.4 million.

On appeal, the appellant argued the respondents acted improvidently by listing the property for $750,000 despite an appraisal of $395,000.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the appellant failed to provide evidence showing a higher price would have been obtained but for the alleged breach.

The plaintiff estate appealed a Master's order dismissing its action for delay.

The action, concerning a $185,000 debt, had seen little progress for over four years.

During this inexcusable delay, three key witnesses for the defendants died, including the father of the defendant who allegedly acted as the deceased's agent.

The Divisional Court upheld the Master's finding that the delay was inordinate, inexcusable, and caused substantial prejudice to the defendants' ability to defend the claim.

The appeal was dismissed.

The appellants appealed a trial judgment finding that a transaction between the bankrupt company and its subsidiaries was a reviewable transaction under s. 100 of the Bankruptcy and Insolvency Act and constituted oppression under s. 248 of the Business Corporations Act.

The trial judge found a conspicuous difference between the fair market value of the promissory note given up by the bankrupt and the shares it received.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings regarding fair market value, and holding that the trial judge properly exercised his discretion in allowing the trustee in bankruptcy to act as a complainant for the oppression remedy.

The respondent was completely successful on appeal.

The Court of Appeal awarded the respondent its costs of the appeal on a partial indemnity basis, fixed at $14,000 plus disbursements and applicable GST.

The appellant, Clarica Trust Company, appealed a motion judge's decision that a crossclaim by the respondent, Reemark Sterling I Limited, was not barred by cause of action estoppel or abuse of process.

The crossclaims arose from a prior action involving a bank, where it was determined that Mutual Trust (Clarica's predecessor) breached a financing commitment.

The Court of Appeal dismissed the appeal, finding that Reemark and the bank had independent causes of action, and it was not an abuse of process for Reemark to advance its claim separately.

Furthermore, the court held that it would be an abuse of process to permit Clarica to re-litigate the issue of liability which had already been determined against it in the prior action.

The appellant bank and respondent trust company entered into agreements to finance a condominium project.

When the real estate market collapsed, the respondent breached its commitment to provide takeout financing, leaving the appellant with a significant shortfall.

The trial judge awarded the appellant damages including compound pre-judgment and post-judgment interest at the rate specified in the loan agreement.

The Court of Appeal substituted simple interest.

The Supreme Court of Canada allowed the appeal, holding that courts have jurisdiction at common law and in equity to award compound interest as expectation damages to fully compensate a plaintiff for the time-value of money.

Following the release of the main judgment dismissing the appeal, the Court of Appeal issued an addendum to clarify the costs award.

The court upheld the motions judge's decision to award the individual defendants their costs against both plaintiffs, as the individual defendants had been improperly joined in the action.

The appellants brought an action against the respondents, who were compliance officers and directors/officers of an investment firm, alleging negligence, fraud, breach of contract, and breach of fiduciary duty related to improvident investments.

The respondents successfully moved to strike the claims against them on the basis that they owed no duty of care to the appellants.

On appeal, the Court of Appeal set aside the order to strike, holding that the claims were novel and the determination of whether a duty of care existed required a full factual record applying the Anns/Kamloops test, rather than being decided at the pleadings stage.

The appellants appealed a summary judgment dismissing most of their claims against magazine publishers and a distributor for conspiracy to injure, conspiracy to unduly lessen competition, wrongful interference with economic relations, inducing breach of contract, and breach of contract.

The Court of Appeal allowed the appeal in part, finding that there was some evidence of a common design or agreement among the corporate defendants to injure the appellants or unduly lessen competition, requiring a trial for the conspiracy and wrongful interference claims.

The appeal regarding the breach of contract and inducing breach of contract claims was dismissed, as the contract was terminated in accordance with its unambiguous terms.

In an appeal from judgments on a passing of accounts, the court upheld a substantial reduction of an estate trustee's claimed compensation and repayment orders after findings of dishonesty, breach of fiduciary duty, and attempted self-benefit at the expense of estate assets.

The court held that the audit judge properly exercised equitable discretion under the Estates Act and Trustee Act to deny full compensation and require repayment of salary and related amounts.

Leave to appeal the solicitor-and-client costs order was granted, but the costs appeal was dismissed.

The beneficiaries' cross-appeal concerning an alleged $914,431 loss from a related transaction was dismissed because the audit judge had not clearly adjudicated a damages claim for breach of trust on the passing of accounts, though such a claim was left open for future litigation.

In a commercial lending dispute arising from failed condominium project financing, the appellants challenged findings that they breached the original takeout mortgage commitment, the assignment of takeout financing, and a later amended commitment.

The Court of Appeal upheld the liability findings, concluding the appellants had no lawful basis to refuse funding in 1991 or 1992 and that the respondent was entitled to full damages from the earlier repudiation.

The court held, however, that compound interest was not available under s. 130 of the Courts of Justice Act and was not justified on equitable grounds in an ordinary breach of contract claim.

The appeal was therefore allowed only to substitute simple interest for compound interest.