Ahmed Shafey

The applicant sought to set aside an international arbitral award under Article 34 of the UNCITRAL Model Law, alleging procedural unfairness, jurisdictional overreach, and public policy violations by the arbitrator.

The respondent cross-applied to recognize and enforce the award.

The court found that the arbitrator conducted a fair hearing, appropriately interpreted the commercial agreements, and crafted a reasonable remedy for the applicant's unauthorized sale of intellectual property.

The court dismissed the set-aside application and granted the application to recognize and enforce the award, ordering the applicant to pay the awarded damages and costs.

The appellant, a corporate officer and sole director, appealed a judgment finding him personally liable for civil fraud arising from his company's failure to deliver 3 million NIOSH certified N95 masks during the COVID-19 pandemic to a Quebec hospital network, after receiving over US$11 million in advance payment.

The Court of Appeal dismissed the appeal, holding that the trial judge applied the correct threshold for recklessness in finding civil fraud and that the law clearly supports personal liability of officers and directors for fraudulent conduct, without needing to assess whether the conduct was "tortious in itself" or exhibited a "separate identity or interest."

The plaintiff, having been successful at trial and awarded over $11 million for civil fraud, sought partial indemnity costs of approximately $1.88 million inclusive of taxes and disbursements.

The self-represented defendant argued the costs were unreasonable and should be apportioned among settling defendants.

The court considered the complexity of the action, the defendant's conduct in increasing costs, and the limited probative value of the receivership proceedings at trial.

The court fixed costs payable by the defendant at $1.05 million plus taxes for fees and $162,000 for disbursements.

During the COVID-19 pandemic, the plaintiff hospital network contracted with the corporate defendant to purchase 3 million NIOSH certified N95 masks, paying over $13 million upfront.

The corporate defendant, directed by the individual defendant Caridi, delivered KN95 masks instead, which were not NIOSH certified.

The plaintiff sued for fraudulent misrepresentation, breach of contract, oppression, and unjust enrichment.

The court found that Caridi acted recklessly in representing that the corporation could deliver NIOSH certified N95 masks without knowing if it was true.

While the court declined to pierce the corporate veil or grant an oppression remedy, it held Caridi personally liable in tort for deceit because his conduct exhibited a separate personal interest (a 50/50 profit split).

The corporate defendant was also found liable for breach of contract.

The applicants, four university students, sought judicial review of the respondent university's decision to deny their requests for religious exemptions from its mandatory COVID-19 vaccination policy.

The students argued the university's decisions were unreasonable and breached procedural fairness.

The Divisional Court held that while it had jurisdiction to review the decisions, the core issue was a claim of discrimination based on creed, which should be adjudicated by the Human Rights Tribunal of Ontario.

The court also found that the university met the rudimentary duty of procedural fairness owed to the students given the context of the pandemic and the institutional constraints.

The application was dismissed.

The plaintiffs brought a motion for judicial approval of 13 discrete auto part class action settlements with the HIAMS, Mitsuba, NGK, and Sumitomo Riko defendants, totaling approximately $14.8 million.

The court found that each of the proposed settlements fell within a zone of reasonableness, noting that the Canadian settlement amounts were proportionate to related American settlements.

The court also approved class counsel's request for a 25 percent contingency fee, plus disbursements and taxes, finding it presumptively valid.

The applicant, a Chartered Professional Accountant, sought judicial review to quash the respondent's decisions to investigate him and issue allegations of professional misconduct for failing to cooperate.

The applicant argued the respondent exceeded its jurisdiction and breached natural justice by refusing to identify the complainant.

The Divisional Court dismissed the application, finding it premature to intervene before the administrative process concluded and holding that the applicant had a duty to cooperate with the investigation.

Following a motion where the plaintiff was successful, the court considered costs submissions.

The plaintiff sought substantial indemnity costs based on a settlement offer, which the court rejected.

Applying the factors in the Rules of Civil Procedure and Boucher, the court awarded the plaintiff partial indemnity costs of $22,500, in accordance with the parties' prior agreement on the quantum for partial indemnity costs.

The moving defendant sought to bifurcate the action so that the plaintiff's successor liability claim against it would be determined before the negligence and related claims against the remaining defendants.

Applying the governing bifurcation principles, the court held that bifurcation is an exceptional remedy available only in the clearest cases where the preponderance of factors favours severance and the proceeding will more likely than not be resolved justly, expeditiously, and inexpensively.

The court found the successor liability issue was not simple, the case was not extraordinary merely because it involved a novel American doctrine, and any clear advantage or costs savings were largely limited to the moving defendant.

The proposed procedure would also create delay, multiplicity of proceedings, and prejudice to the plaintiff.

The motion was dismissed, with costs to the plaintiff on a partial indemnity basis.

At a status hearing requiring the plaintiff to show cause why a long-delayed civil action should continue, the court applied the conjunctive test requiring an acceptable explanation for delay and absence of non‑compensable prejudice to the defendants.

The action had experienced approximately ten years of unexplained inactivity between the issuance of the claim and the service of the trial record.

The plaintiff relied on evidence of alcoholism, incarceration, family illness, and lack of funds to explain the delay.

The court held these explanations were unsupported or logically insufficient, particularly where the plaintiff had demonstrated an ability to instruct counsel at other times during the same period.

Having failed to establish an acceptable explanation for the delay, the action was dismissed without considering the prejudice branch of the test.

The respondent settled a third-party claim of $2.25 million for $100,000 using a Rule 49 offer and sought to enforce indemnity agreements against the appellants.

The application judge allowed the enforcement.

On appeal, the appellants argued the agreements lacked consideration and the settlement was unreasonable.

The Court of Appeal dismissed the appeal, finding it unfair to allow the appellants to raise lack of consideration at the last minute after previously conceding the agreements' validity.

The Court also upheld the application judge's finding that the settlement was reasonable given the litigation risks and potential costs.

Following a contempt motion between the plaintiff and defendants, the court addressed costs.

Although the defendants successfully defended the contempt motion, the court found it more likely than not that one defendant removed certain logbooks in contravention of court orders, which militated against awarding costs to the defendants.

The plaintiff also failed on the motion and therefore was not entitled to costs.

However, a non-party that participated in the proceedings was awarded substantial indemnity costs due to its limited but necessary involvement.

The court ordered the plaintiff to pay the non-party $25,000 plus HST and disbursements.

The plaintiff brought a motion seeking a finding of contempt against the defendants and a non-party corporation for allegedly failing to comply with prior court orders requiring the delivery of aircraft engine logbooks.

The moving party argued the materials had been removed or withheld in breach of orders compelling their production.

The court held that contempt must be proven beyond a reasonable doubt and found the evidence against the non-party was entirely circumstantial with no plausible motive established.

While the evidence suggested it was possible the individual defendant removed the logbooks, the court concluded the record did not establish the allegation beyond a reasonable doubt due to alternative explanations and lack of direct evidence.

The contempt motion was dismissed.

Costs decision following two motions in an employment action alleging constructive dismissal and entitlement to a bonus.

The defendant successfully moved to set aside a noting in default and successfully resisted the plaintiff’s summary judgment motion concerning whether a bonus should be paid entirely in cash or partially through restricted share units.

The court found that plaintiff’s counsel improperly refused to consent to setting aside the noting in default, unnecessarily increasing litigation costs.

Substantial indemnity costs of $9,500 were awarded for the motion to set aside the noting in default.

Partial indemnity costs of $20,000 were awarded for the summary judgment motion.

The plaintiff brought a motion for an interim order to recover an aircraft engine owned by the Government of Taiwan, which had been sent for overhaul.

The defendants, who acted as middlemen, had the engine shipped to Canada and detained it, claiming a repairer's lien and demanding security.

The court found that the plaintiff was entitled to possession, the defendants had unlawfully detained the engine, and the defendants were not entitled to a lien as they did not perform any repairs.

The court ordered the immediate return of the engine without requiring the plaintiff to post security.

The plaintiff, a former executive who resigned and claimed constructive dismissal, brought a motion for summary judgment for his unpaid 2011 bonus.

The parties agreed on the bonus amount, and the bank paid two-thirds in cash prior to the motion.

The issue was whether the bank could pay the remaining one-third in restricted share units (RSUs) as per its past practice and the governing plan, or if the plaintiff was entitled to cash.

The court held that the plan did not prohibit the bank from granting RSUs to a former employee, and the plaintiff was not entitled to demand the remaining balance in cash.

The moving party, 2205305 Ontario Inc., was unsuccessful on an urgent motion to stay an order approving a receiver's sale of properties.

The respondents sought costs against the moving party's parent corporation, Romspen Investment Corporation, arguing it was the real moving party and the moving party was a shell corporation.

The Court of Appeal dismissed the request for costs against the non-party, finding no fraud or abuse of process to justify lifting the corporate veil, and fixed costs against the moving party on a partial indemnity scale.