Alan John Lenczner

The Environmental Commissioner of Ontario brought a motion for leave to intervene as an added party or, alternatively, as a friend of the court in an appeal concerning certification and costs in an environmental class action.

The Court of Appeal dismissed the motion to intervene as an added party, noting that interveners are rarely permitted to expand the evidentiary record.

However, the court granted the Commissioner leave to intervene as a friend of the court solely on the issue of costs, finding that the Commissioner could bring a broader public interest perspective to that issue.

The intervention was subject to conditions, including filing a consolidated factum with other interveners.

The Ontario Securities Commission found the respondent guilty of insider trading and imposed a 15-year suspension of his registration, along with a costs award of $186,052.30.

The Divisional Court upheld the liability finding but reduced the suspension to four years and remitted the costs award with specific procedural instructions.

The Court of Appeal allowed the Commission's appeal, restoring the 15-year suspension on the basis that the Commission's decision was reasonable and entitled to deference.

The Court of Appeal also remitted the costs issue to the Commission, but without the Divisional Court's specific procedural instructions, requiring only that the process be fair.

The respondent Minister brought a motion to adjourn the hearing of an application brought by the applicant landowner on short notice.

The parties agreed to the adjournment, but the applicant sought terms to prevent the inclusion of its lands in the Greenbelt area pending the hearing.

The court applied the RJR-MacDonald test for interlocutory injunctions and found that while there was a serious issue to be tried, the balance of convenience favoured allowing the planning process to proceed.

The court also noted that section 14 of the Proceedings Against the Crown Act prevents the granting of an injunction against the Crown.

The motion for adjournment was granted without terms.

The plaintiff sought leave to appeal a costs order made after a summary judgment motion.

The motions judge had found the defendants' summary judgment motion reasonable but unsuccessful, and reserved costs to the trial judge.

The plaintiff argued this conflicted with case law requiring costs to be fixed on a partial indemnity basis and payable forthwith under Rule 20.06(1).

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions, as the cited cases merely reflected the exercise of judicial discretion regarding costs.

The appellants' solicitors obtained an Anton Piller order and inadvertently seized documents protected by solicitor-client privilege.

The respondents moved to disqualify the appellants' solicitors.

The motion judge dismissed the motion, but the Divisional Court allowed the appeal and disqualified the solicitors.

On further appeal, the Court of Appeal established a new test for disqualification in cases of inadvertent disclosure: whether there is a real risk that opposing counsel will use the privileged information to the prejudice of the moving party, and whether that prejudice cannot realistically be overcome by a remedy short of disqualification.

The appeal was allowed and the matter remitted to the motion judge to apply the correct test.

Following an appeal in which the respondents were largely successful, the respondents sought costs on a substantial indemnity basis and a premium.

The Court of Appeal held that the appellants' attacks on the trial judge's fact-finding process did not warrant substantial indemnity costs, nor did the financial risk run by appellate counsel warrant a premium.

Costs were awarded to the respondents on a partial indemnity basis, reduced by 5 percent to reflect the appellants' minor success on appeal.

The appellant employer appealed a trial judgment finding it had constructively dismissed the respondent employee and awarding damages including amounts for broker warrants and interest on capital.

The Court of Appeal upheld the finding of constructive dismissal, agreeing that the employer's demand that the employee share his role as head of the corporate finance department constituted a fundamental change to his employment contract.

However, the Court allowed the appeal in part, setting aside the damages awarded for broker warrants because they had no value on the termination date, and setting aside the award of interest on the employee's capital because the shareholder agreement expressly precluded it.

The appellants appealed an order of Farley J. made pursuant to Rule 60.12(c).

The Court of Appeal quashed the appeal, finding that the order was interlocutory and did not finally dispose of the issues.

Consequently, the appeal lies, with leave, to the Divisional Court.

Costs were fixed at $2,000.

The appellant sued the respondent school board and its former director for defamation based on statements made during a television broadcast regarding her allegations of a teacher's sexual misconduct.

At trial, the jury found the statements defamatory and malicious, but true, resulting in the dismissal of the action.

On appeal, the Court of Appeal found that the trial judge's charge to the jury unfairly restricted the context of the words complained of, leading to a substantial wrong.

Despite the appellant's failure to object to the charge at trial, the Court allowed the appeal and ordered a new trial in the interests of justice.

The appellant company appealed an order declaring it in breach of a redemption obligation and entitling the respondent to immediate redemption of his preference shares for $1,600,000.

The appellant had refused to pay quarterly dividends to the respondent despite having the funds, suspecting the respondent of breaching non-compete obligations.

The Court of Appeal upheld the lower court's finding that the failure to pay dividends constituted a default under the Shareholders' Agreement, triggering the respondent's unconditional right to redeem his shares.

The court rejected the appellant's argument that the default provision only applied when the company lacked funds.

The appellant appealed the dismissal of his motion to certify a class proceeding against Inco Limited and others for environmental contamination in Port Colborne, as well as the subsequent costs order.

On appeal, the appellant narrowed the claims to real property devaluation, abandoning health impairment claims.

The Divisional Court upheld the motion judge's findings that the proposed class definition was arbitrary, individual issues would overwhelm common issues, and a class proceeding was not the preferable procedure.

The court also upheld the costs award of $184,332.14 against the appellant, finding no error in the motion judge's application of costs principles under the Class Proceedings Act and the Courts of Justice Act.

The appellant appealed a trial judgment finding that a fiduciary relationship existed between him and the respondent.

The Court of Appeal dismissed the appeal, holding that cases of this nature turn on their own facts and there was support in the evidence for the trial judge's conclusion.

The respondents in an appeal brought a motion to set aside an order dismissing their motion for interim costs.

They sought $5,000,000 to fund their legal expenses, arguing they could not afford to respond to the appeal and that the appellants were unfairly using corporate assets to fund their own litigation.

The Court of Appeal dismissed the motion, finding that the request for interim costs was tantamount to a motion to lift the automatic stay of the money judgment, which had already been denied.

The court held that while section 134(2) of the Courts of Justice Act provides broad jurisdiction to make interim orders to prevent prejudice pending appeal, the respondents failed to demonstrate that the appellants' use of corporate assets prevented them from effectively responding to the appeal or dissipated assets so as to undermine the effectiveness of any order on appeal.

In an addendum to judgment regarding costs of an appeal, the respondents sought costs totaling $132,145.72.

The appellants opposed, seeking a stay of costs for one insolvent respondent, arguing for the application of the pre-2002 party and party costs regime, and challenging the hourly rates of junior counsel.

The Court of Appeal dismissed the stay request, held that the new costs grid under O. Reg. 284/01 applies retrospectively to services rendered before January 1, 2002, and reduced the hourly rates for certain junior counsel.

Total costs of $122,998.02 were awarded to the respondents on a partial indemnity basis.

In a complex family business dispute, the respondents moved to lift the automatic stay of substantial money judgments pending appeal, or alternatively for interim costs or security for costs.

The appellants brought a cross-motion to stay certain mandatory tracing orders pending appeal.

The Court of Appeal dismissed both motions.

The court found the appeals were not devoid of merit and the respondents failed to establish sufficient hardship or risk of asset dissipation to justify lifting the stay.

The court also found the appellants failed to demonstrate irreparable harm to justify staying the mandatory tracing orders.

Following an appeal decision, the appellant requested that the court direct a reference to the Master to resolve an ongoing dispute concerning the quantification of fees and potential damages for an invalid suspension.

The Court of Appeal declined to direct a reference or a trial of an issue, finding merit in allowing the parties to state the dispute in their own terms and leaving it to them to commence whatever action they see fit.

The parties agreed on the disposition of costs following an appeal and cross-appeal.

The Court of Appeal ordered the appellants to pay costs to the respondent, Commercial Union Life Assurance Company of Canada.

Specifically, Steven Michael Overgaard was ordered to pay $25,000, JIIG Holdings Inc. was ordered to pay $20,000 for abandoned grounds of appeal, and MHI Brokers Ltd., JIIG Holdings Inc., and Steven Michael Overgaard were ordered to jointly and severally pay $5,000 for the cross-appeal.

The appellants appealed a trial judgment finding that their company held insurance premiums in trust for the respondent insurer and that the individual appellant, as the directing mind of the company, was personally liable for knowing assistance in a breach of trust for withholding those premiums.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that a statutory trust existed under s. 402(1) of the Insurance Act, which applies to both licensed and unlicensed agents, and that an express trust existed at common law.

The Court also affirmed that the individual appellant was personally liable because he directed the company to take a knowingly wrongful risk to the prejudice of the insurer.

The Ontario Teachers' Federation (OTF) appealed a decision declaring its By-law X invalid.

By-law X required its affiliates, including the Ontario Secondary School Teachers' Federation (OSSTF), to collect and remit membership fees to OTF, and allowed OTF to suspend an affiliate for default.

The OSSTF had withheld a portion of the fees designated for the Canadian Teachers' Federation.

The Court of Appeal held that sections 1-5 of By-law X, which established the fee collection mechanism, were validly enacted under the Corporations Act as a matter of internal management.

However, section 6, which permitted the suspension of an affiliate, was ultra vires because it interfered with the OSSTF's statutorily protected role within the OTF.

The appeal was allowed in part.

The appellants, holders of debentures issued by BCED, appealed a trial judgment finding that a series of corporate reorganizations and asset transfers did not breach a successor obligor clause in the trust indenture.

The clause prohibited BCED from transferring 'all or substantially all' of its assets unless the transferee assumed the debenture debt.

The Court of Appeal dismissed the appeal, holding that the asset transfers did not meet either the quantitative or qualitative threshold to constitute 'all or substantially all' of BCED's assets.

The Court also found that a subsequent guarantee and foreclosure did not constitute a prohibited 'transaction' under the trust indenture, as the indenture expressly permitted BCED to incur and secure senior indebtedness.