Alexis Beale

This motion, brought by the Van Essen Companies and Wouter Van Essen, sought to strike evidence, grant judgment, and stay proceedings in a receivership, alleging unauthorized access to their privileged records by the court-appointed Receiver (FTI Consulting Inc.) and the appointing creditor (MBL Administrative Agent II LLC).

The court dismissed the motion, finding that the Van Essen Companies failed to establish that the records were intended to be confidential, as Wouter Van Essen knowingly used a Techlantic email account (a third-party entity he considered arm's length) for business and personal communications, including those with legal counsel, and shared emails with Techlantic's senior officer.

The court concluded that the prerequisite for privilege (confidentiality) was not met, and even if it were, privilege was waived by the knowing use of a third-party server and delayed notification to the Receiver.

The applicant sought a review of sanctions imposed by the Canadian Investment Regulatory Organization (CIRO) after the Capital Markets Tribunal previously set aside one finding of misappropriation.

The applicant sought to introduce new affidavit evidence regarding his ability to pay and the remaining misappropriation finding.

The Tribunal declined to admit the new evidence, finding it was not new or compelling and amounted to an inappropriate collateral challenge.

The Tribunal reduced the fine for misappropriation from $50,000 to $40,000 to reflect the set-aside finding, but upheld the remaining sanctions, including a permanent ban and $25,000 in costs, noting the severity of the remaining misconduct.

This decision addresses the issue of costs following a successful application by 2516216 Ontario Ltd. o/a NUMBRS against AbleDocs Inc., where a judgment of $111,680.38 plus prejudgment interest was granted in favour of Numbrs.

The applicant sought costs on a partial indemnity basis to the date of an offer to settle and thereafter on a substantial indemnity basis, totaling $41,494.31.

The respondent argued for a denial or reduction of costs due to the applicant's counsel's aggressive conduct, including threats of personal claims against respondent's counsel.

The court found the applicant's counsel's actions inappropriate but not egregious enough to deny costs, ultimately awarding the applicant the full amount of costs claimed.

This motion was brought by the appellant's solicitors, Miller Thomson LLP, seeking an order to be removed from the record due to a breakdown in the solicitor-client relationship, primarily stemming from the appellant's failure to pay accounts and provide instructions.

The respondent opposed the immediate removal, arguing it would prejudice their pending motion to lift a stay of enforcement and obtain security for appeal costs, especially given an imminent receivership application against the appellant.

The court exercised its discretion to refuse immediate removal, ordering that the solicitors would only be removed after the disposition of the respondent's motion, finding this approach prevented prejudice to the respondent and upheld the administration of justice without unduly prejudicing the moving solicitors or their client.

The applicant, 2516216 Ontario Ltd. o/a NUMBRS, brought an application for judgment seeking $111,680.38 for outstanding bookkeeping services provided to the respondent, AbleDocs Inc. AbleDocs admitted some amount was owing but disputed the total, alleging overbilling, potential negligence regarding US tax remittances (for which it intended to counterclaim), and that some invoices were statute-barred.

AbleDocs brought a motion to convert the application into an action due to alleged material facts in dispute.

The court dismissed AbleDocs' motion, finding no genuine issue requiring a trial.

The court determined that the contractual claim was straightforward, the negligence claim was discrete and could be pursued separately, and the limitation period argument was defeated by a valid tolling agreement and acknowledgement of debt.

Judgment was granted in favour of the applicant for the full amount claimed.

This endorsement addresses the costs arising from a denied urgent Norwich motion brought by the plaintiffs.

The court found no urgency for the Norwich order and determined that the defendant was entitled to costs.

The defendant sought costs on a substantial indemnity basis, while the plaintiffs argued for partial indemnity and payment in the cause, with a reduction for the defendant's alleged delay in retaining counsel and a cross-motion.

The court rejected the plaintiffs' arguments, finding no reason to delay the costs award or discount the defendant's costs.

The court ordered the plaintiffs to pay the defendant $50,000 in all-inclusive costs forthwith on a substantial indemnity scale.

The plaintiffs brought an urgent motion for a Norwich order to compel disclosure of information related to alleged defamation and intrusion upon seclusion, stemming from internet postings and domain name purchases.

The court found no urgency, questioned the validity of the intrusion upon seclusion claim regarding dormant domain names, and noted the defamation claim was weak as the articles had been removed.

The motion was deemed a potential tactical move related to ongoing commercial litigation between the parties.

The court dismissed the motion, finding it was not justified for a Norwich order and was akin to a fishing expedition.

The plaintiff brought a motion for leave to appeal the order of RSJ Ricchetti dated January 17, 2023.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the defendant in the amount of $7,500.

The Plaintiff, Jennifer Black, brought a motion for an interlocutory injunction to compel the Defendants, Mandeville Private Client Inc. and Mandeville Holding Inc., to allow her to continue providing investment management services to the Majestic Access Funds and to prevent interference with her economic relationship with Majestic Asset Management LLC.

The Defendants brought a cross-motion for an injunction to prohibit Black from soliciting Mandeville clients, citing a non-solicitation agreement.

The court dismissed Black's motion, finding she had no contractual right to transfer the funds or become their sub-advisor, and that Majestic was not a party to the litigation.

The court granted Mandeville's cross-motion, determining that Black's communications with clients prior to her resignation constituted solicitation in breach of the enforceable non-solicitation agreement, which was part of a business sale.

The applicant was successful on the merits of its application and sought costs on a full indemnity basis, relying on an indemnity clause in the operating agreement.

The court held that the contractual phrase 'all costs' does not necessarily dictate the scale of costs, which remains discretionary under section 131 of the Courts of Justice Act.

The court awarded costs on a partial indemnity basis, calculating the amount using the 61% ratio presented by the respondent's own costs outline, resulting in an all-inclusive award of $311,228.77.

The defendant municipality moved to strike portions of the plaintiffs' statement of claim under Rule 25.11, arguing they improperly pleaded evidence and irrelevant facts.

The plaintiffs, land developers, sued for breach of contract and bad faith regarding a subdivision development.

The Master dismissed the motion, finding that where bad faith is alleged, the requirement to provide full particulars under Rule 25.06(8) overrides the prohibition against pleading evidence, and the impugned paragraphs properly detailed the alleged bad faith conduct.

The plaintiffs sued their former insurer, Economical, and a related foundation, claiming entitlement to demutualization benefits after Economical declined to renew their home insurance policy due to their claims history.

The defendants moved for summary judgment.

The court granted the motion and dismissed the action, finding that the plaintiffs were not eligible policyholders on the crystallization date for demutualization benefits.

The court also held that Economical had no duty to warn the plaintiffs about its internal underwriting guidelines or to renew the policy, and that the claim was statute-barred as it was commenced outside the two-year limitation period.

Collingwood Aviation Partners Ltd. (CAPL) applied for a declaration that it had a common law easement and contractual rights to full access to the adjacent airport lands owned by Winterland Airfield Holdings Ltd. (WAH).

WAH had erected fences restricting CAPL's access, citing safety concerns, and sought to impose user fees and increased insurance requirements.

The court found that CAPL had both contractual and common law easement rights to unimpeded access, as the properties had a symbiotic historical relationship.

The court ordered the removal of the restrictive fencing, declared that WAH could not charge user fees for access, and dismissed WAH's application regarding insurance.

The applicant, a former Auditor General for the City of Oshawa, brought an application for judicial review seeking to quash a 2013 City Council resolution and expunge an investigator's report.

The application was commenced more than five years after the resolution was passed.

The Divisional Court dismissed the application for delay, finding the delay was lengthy, lacked a reasonable explanation, and caused prejudice to the City given the one-year statutory limitation period for quashing municipal resolutions.

The respondents admitted to engaging in the business of trading and advising in securities without registration, in contravention of subsections 25(1) and 25(3) of the Securities Act.

The individual respondent also engaged in dishonest conduct by impersonating clients when dealing with registrants.

The Ontario Securities Commission approved the settlement agreement, finding it in the public interest despite the individual's history of regulatory misconduct, given his cooperation, remorse, and the efficiency of resolving the matter without a contested hearing.